State v. Oakley

2001 WI 103, 629 N.W.2d 200, 245 Wis. 2d 447, 2001 Wisc. LEXIS 434

• Court: Wisconsin Supreme Court
• Decided: July 10, 2001
• Docket: 99-3328-CR
• Status: Published

Opinions

JON P. WILCOX, J.

¶ 1. This case presents two issues.¹ First, we must decide whether as a condition of probation, a father of nine children, who has intentionally refused to pay child support, can be required to avoid having another child, unless he shows that he can support that child and his current children. We conclude that in light of Oakley's ongoing victimization of his nine children and extraordinarily troubling record manifesting his disregard for the law, this anomalous condition — imposed on a convicted felon facing the far more restrictive and punitive sanction of prison — is not overly broad and is reasonably related to Oakley's rehabilitation. Simply put, because Oakley was convicted of intentionally refusing to pay child support — a felony in Wisconsin — and could have been imprisoned for six years, which would have eliminated his right to procreate altogether during those six years, this probation condition, which infringes on his right to procreate during his term of probation, is not invalid under these facts. Accordingly, we hold that the circuit court did not erroneously exercise its discretion.

¶ 2. Second, we must decide whether an individual waives his or her claim of error that the State was impermissibly allowed to withdraw from an earlier plea agreement by entering into a subsequent plea agreement. When a defendant pleads no contest, he or she waives all defenses based on a denial of due process because the prosecutor breached an earlier plea agreement. Thus, we find that there was waiver here.

( — I

¶ 3. David Oakley (Oakley), the petitioner, was initially charged with intentionally refusing to pay child support for his nine children he has fathered with four different women. The State subsequently charged Oakley with seven counts of intentionally refusing to provide child support as a repeat offender. His repeat offender status stemmed from intimidating two witnesses in a child abuse case — where one of the victims was his own child. State v. Oakley, 226 Wis. 2d 437, 441, 594 N.W.2d 827 (Ct. App. 1999), rev'd on other grounds, State v. Oakley, 2000 WI 37, 234 Wis. 2d 528, 609 N.W.2d 786. Oakley and the State entered into a plea agreement on the seven counts, but the State, after learning that Oakley's probation in Sheboygan County was in the process of being revoked, moved at sentencing to withdraw the plea agreement^ The circuit court for Manitowoc County, Fred H. Hazlewood, Judge, granted the State's motion.

¶ 4. Oakley then entered into another plea agreement in which he agreed to enter a no contest plea to three counts of intentionally refusing to support his children and have the other four counts read-in for sentencing. He further agreed that he would not complain on appeal about the State's withdrawal from the first plea agreement. The State, in turn, agreed that in exchange for his no contest plea, it would cap its sentencing recommendation to a total of six years on all counts. Oakley, however, was free to argue for a different sentence.

¶ 5. At sentencing, Judge Hazlewood informed Oakley that by pleading no contest, he waived his right to have the State prove that he was legally obligated to support his children and that he intentionally refused to do so for at least 120 days contrary to Wis. Stat. § 948.22(2) (1997-98).² The State noted that during the relevant time period, Oakley had paid no child support and that there were arrears in excess of $25,000. Highlighting Oakley's consistent and willful disregard for the law and his obligations to his children, the State argued that Oakley should be sentenced to six years in prison consecutive to his three-year sentence in She-boygan County.³ Oakley, in turn, asked for the opportunity to maintain full-time employment, provide for his children, and make serious payment towards his arrears.

¶ 6. After taking into account Oakley's ability to work and his consistent disregard of the law and his obligations to his children, Judge Hazlewood observed that "if Mr. Oakley had paid something, had made an earnest effort to pay anything within his remote ability to pay, we wouldn't be sitting here," nor would the State argue for six years in prison. But Judge Hazle-wood also recognized that "if Mr. Oakley goes to prison, he's not going to be in a position to pay any meaningful support for these children." Therefore, even though Judge Hazlewood acknowledged that Oakley's "defaults, are obvious, consistent, and inexcusable," he decided against sentencing Oakley to six years in prison consecutive to his three-year sentence in She-boygan County, as the State had advocated. Instead, Judge Hazlewood sentenced Oakley to three years in prison on the first count, imposed and stayed an eight-year term on the two other counts, and imposed a five-year term of probation consecutive to his incarceration. Judge Hazlewood then imposed the condition at issue here: while on probation, Oakley cannot have any more children unless he demonstrates that he had the ability to support them and that he is supporting the children he already had. After sentencing, Oakley filed for post-conviction relief contesting this condition and the State's withdrawal from the first plea agreement.

¶ 7. In a per curiam opinion, the court of appeals affirmed the circuit court's rulings on both issues. State v. Oakley, No. 99-3328-CR, unpublished slip op. at ¶ 1 (Wis. Ct. App. Sept. 13, 2000). The court of appeals found that the condition placed on Oakley was not overly broad and that it was reasonable. The court also found that Oakley's decision to enter into the subsequent plea agreement "waived his right to challenge matters relating to the first plea agreement." Id. at ¶ 5. Oakley petitioned this court for review, which we granted.

II

¶ 8. Oakley challenges the constitutionality of a condition of his probation for refusing to pay child support. The constitutionality of a condition of probation raises a question of law, which this court reviews independently without deference to the decisions of the circuit court or the court of appeals. See State v. Griffin, 131 Wis. 2d 41, 49, 388 N.W.2d 535 (1986); Edwards v. State, 74 Wis. 2d 79, 85, 246 N.W.2d 109 (1976).

¶ 9. Refusal to pay child support by so-called "deadbeat parents" has fostered a crisis with devastating implications for our children.⁴ Of those single parent households with established child support awards or orders, approximately one-third did not receive any payment while another one-third received only partial payment.⁵ For example, in 1997, out of $26,400,000,000 awarded by a court order to custodial mothers, only $15,800,000,000 was actually paid, amounting to a deficit of $10,600,000,000.⁶ These figures represent only a portion of the child support obligations that could be collected if every custodial parent had a support order established.⁷ Single mothers disproportionately bear the burden of nonpayment as the custodial parent.⁸ On top of the stress of being a single parent, the nonpayment of child support frequently presses single mothers below the poverty line.⁹ In fact, 32.1% of custodial mothers were below the poverty line in 1997, in comparison to only 10.7% of custodial fathers.¹⁰ Indeed, the payment of child support is widely regarded as an indispensable step in assisting single mothers to scale out of poverty, especially when their welfare benefits have been terminated due to new time limits.¹¹

¶ 10. The effects of the nonpayment of child support on our children are particularly troubling. In addition to engendering long-term consequences such as poor health, behavioral problems, delinquency and low educational attainment, inadequate child support is a direct contributor to childhood poverty.¹² And childhood poverty is all too pervasive in our society. Over 12 million or about one out of every six children in our country lives in poverty.¹³ In Wisconsin, poverty strikes approximately 200,000 of our children with 437,000 at or below 200% of the poverty level in 1999.¹⁴ Although payment of child support alone may not end childhood poverty, it could reduce current levels and raise childhood standards of living.¹⁵ Child support — when paid — on average amounts to over one-quarter of a poor child's family income.¹⁶ There is little doubt that the payment of child support benefits poverty-stricken children the most.¹⁷ Enforcing child support orders thus has surfaced as a major policy directive in our society.

¶ 11. In view of the suffering children must endure when their noncustodial parent intentionally refuses to pay child support, it is not surprising that the legislature has attached severe sanctions to this crime.¹⁸ Wis. Stat. § 948.22(2). This statute makes it a Class E felony for any person "who intentionally fails for 120 or more consecutive days to provide spousal, grandchild or child support which the person knows or reasonably should know the person is legally obligated to provide... ."¹⁹ A Class E felony is punishable with "a fine not to exceed $10,000 or imprisonment not to exceed 2 years, or both." Wis. Stat. § 939.50(3)(e). The legislature has amended this statute so that intentionally refusing to pay child support is now punishable by up to five years in prison. See Wis. Stat. § 939.50(3)(e)(1999-2000).

¶ 12. But Wisconsin law is not so rigid as to mandate the severe sanction of incarceration as the only means of addressing a violation of § 948.22(2). In sentencing, a Wisconsin judge can take into account a broad array of factors, including the gravity of the offense and need for protection of the public and potential victims. State v. Guzman, 166 Wis. 2d 577, 592, 480 N.W.2d 446 (1992). Other factors — concerning the convicted individual — that a judge can consider include:

the past record of criminal offenses; any history of undesirable behavior patterns; the defendant's personality, character and social traits; the results of a presentence investigation; the vicious or aggravated nature of the crime; the degree of defendant's culpability; the defendant's demeanor at trial; the defendant's age, educational background and employment record; the defendant's remorse, repentance and cooperativeness; the defendant's need for close rehabilitative control; the rights of public; and the length of pretrial detention.

Id. After considering all these factors, a judge may decide to forgo the severe punitive sanction of incarceration and address the violation with the less restrictive alternative of probation coupled with specific conditions. Wisconsin Stat. § 973.09(l)(a) provides:

[I]f a person is convicted of a crime, the court, by order, may withhold sentence or impose sentence under s. 973.15 and stay its execution, and in either case place the person on probation to the department for a stated period, stating in the order the reasons therefor. The court may impose any conditions which appear to be reasonable and appropriate.

The statute, then, grants a circuit court judge broad discretion in fashioning a convicted individual's conditions of probation. As we have previously observed, "[t]he theory of the probation statute is to rehabilitate the defendant and protect society without placing the defendant in prison. To accomplish this theory, the circuit court is empowered by Wis. Stat. § 973.09(l)(a) to fashion the terms of probation to meet the rehabilitative needs of the defendant." State v. Gray, 225 Wis. 2d 39, 68, 590 N.W.2d 918 (1999). While rehabilitation is the goal of probation, judges must also concern themselves with the imperative of protecting society and potential victims. On this score, we have explained:

The theory of probation contemplates that a person convicted of a crime who is responsive to supervision and guidance may be rehabilitated without placing him in prison. This involves a prediction by the sentencing court society will not be endangered by the convicted person not being incarcerated. This is risk that the legislature has empowered the courts to take in the exercise of their discretion.. ..

If the convicted criminal is thus to escape the more severe punishment of imprisonment for his wrongdoing, society and the potential victims of his anti-social tendencies must be protected.

State v. Evans, 77 Wis. 2d 225, 231, 252 N.W.2d 664 (1977). Thus, when a judge allows a convicted individual to escape a prison sentence and enjoy the relative freedom of probation, he or she must take reasonable judicial measures to protect society and potential victims from future wrongdoing. To that end — along with the goal of rehabilitation — the legislature has seen fit to grant circuit court judges broad discretion in setting the terms of probation.

¶ 13. Nevertheless, this broad discretion given to trial judges has come under fire by various commentators, especially where trial judges elsewhere in the country have imposed probation conditions that reflect their own idiosyncrasies rather than serve a rehabilitative purpose.²⁰ We agree that judges should not abuse their discretion by imposing probation conditions on convicted individuals that reflect only their own idiosyncrasies. Instead, they should use their discretion in setting probation conditions to further the objective of rehabilitation and protect society and potential victims from future wrongdoing. And because we recognize that convicted felons may have trouble conforming their future conduct to the law, we uphold the power of a judge to tailor individualized probation conditions per Wis. Stat. § 973.09(l)(a).

¶ 14. In the present case, the record indicates that Judge Hazlewood was familiar with Oakley's abysmal history prior to sentencing. The record reveals that Judge Hazlewood knew that Oakley had a number of support orders entered for his nine children, but he nevertheless continually refused to support them. He was aware that Oakley's probation for intimidating two witnesses in a child abuse case — where one of the witnesses was his own child and the victim — was in the process of being revoked. Judge Hazlewood was also apprised that Oakley had promised in the past to support his children, but those promises had failed to translate into the needed support. Moreover, he knew that Oakley had been employed and had no impediment preventing him from working. As the court of appeals observed in the witness intimidation case against Oakley, "[t]he refusal to pay the fines and the victim intimidation both show Oakley's cavalier attitude toward the justice system. . . .Oakley needs to be rehabilitated from his perception that one may flout valid court orders and the judicial process with impunity and suffer no real consequence." Oakley, 226 Wis. 2d at 441. Given his knowledge of Oakley's past conduct, Judge Hazlewood was prepared to fashion a sentence that would address Oakley's ongoing refusal to face his obligations to his nine children as required by law.

¶ 15. In doing so, Judge Hazlewood asserted that some prison, time coupled with conditional probation might convince Oakley to stop victimizing his children. With probation, Judge Hazlewood sought to rehabilitate Oakley while protecting society and potential victims — Oakley's own children — from future wrongdoing.²¹ The conditions were designed to assist Oakley in conforming his conduct to the law. In Wisconsin, as expressed in Wis. Stat. § 948.22(2), we have condemned unequivocally intentional refusal to pay child support and allow for the severe sanction of prison to be imposed on offenders. Here, the judge fashioned a condition that was tailored to that particular crime, but avoided the more severe punitive alternative of the full statutory prison term through the rehabilitative tool of probation. At the same time, Judge Hazlewood sought to protect the victims of Oakley's crimes — Oakley's nine children.

¶ 16. But Oakley argues that the condition imposed by Judge Hazlewood violates his constitutional right to procreate.²² This court, in accord with the United States Supreme Court, has previously recognized the fundamental liberty interest of a citizen to choose whether or not to procreate. Eberhardy v. Circuit Court for Wood County, 102 Wis. 2d 539, 561, 307 N.W.2d 881 (1981); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (recognizing the right to procreate as "one of the basic civil rights of man"). Accordingly, Oakley argues that the condition here warrants strict scrutiny.²³ That is, it must be narrowly tailored to serve a compelling state interest. See Zablocki v. Redhail, 434 U.S. 374, 388 (1978). Although Oakley concedes, as he must, that the State's interest in requiring parents to support their children is compelling, he argues that the means employed here is not narrowly tailored to serve that compelling interest because Oakley's "right to procreate is not restricted but in fact eliminated." According to Oakley, his right to procreate is eliminated because he "probably never will have the ability to support" his children. Therefore, if he exercises his fundamental right to procreate while on probation, his probation will be revoked and he will face the stayed term of eight years in prison.

¶ 17. While Oakley's argument might well carry the day if he had not intentionally refused to pay child support, it is well-established that convicted individuals do not enjoy the same degree of liberty as citizens who have not violated the law. See Evans, 77 Wis. 2d at 230 (asserting that "liberty enjoyed by a probationer is, under any view, a conditional liberty" and that probationer's "position is not that of a non-convicted citizen”); Von Arx v. Schwarz, 185 Wis. 2d 645, 658, 517 N.W.2d 540 (Ct. App. 1994) (observing that felon on probation does not enjoy the same constitutional guarantees as the citizenry). We emphatically reject the novel idea that Oakley, who was convicted of intentionally failing to pay child support, has an absolute right to refuse to support his current nine children and any future children that he procreates, thereby adding more child victims to the list. In an analogous case, Oregon upheld a similar probation condition to protect child victims from their father's abusive behavior in State v. Kline, 963 P.2d 697, 699 (Or. Ct. App. 1998).²⁴ In Kline, the defendant physically and emotionally abused his wife and children, especially when high on methamphetamine, which caused him to become angry and hostile. Id. at 698. Until his parental rights to his son were terminated, he abused him regularly, eventually breaking his arm. Id. Subsequently, he and his wife had a baby girl. Id. Undeterred, the defendant spiral fractured his two-and-a-half month old baby girl's leg and bruised her head and chest, causing her to scream uncontrollably. Id. He admitted that" 'I caused the bruises on the baby because I don't know my own strength'" and explained his conduct with the observation that" 'babies are so hard to understand. They are so frustrating.'" Id. at 699. The defendant was convicted of criminal mistreatment and as a condition of his probation he was required to successfully complete drug and anger management program and obtain prior written approval of the court before fathering any future child. Id. at 699. The defendant contested the condition as violating his fundamental right to procreate and asserted that strict scrutiny applied.

¶ 18. The court rejected the defendant's argument that strict scrutiny applied to the probation condition at issue. Securing the rights of his child victims, the court wrote that "[t]he condition provides potential victims with protection from future injury and interferes with defendant's fundamental rights to a permissible degree." Id. The court acknowledged that the trial court — like the circuit court in the present case — "did not impose a total ban on defendant's reproductive rights." Id. The Kline court further noted that the trial court "expressed its concern for the safety of any children defendant might conceive in the future in the light of defendant's potential for violence associated with his anger and drug abuse problems." Id. Similarly, we believe that in light of Oakley's troubling record of child witness intimidation and intentional refusal to pay child support, denying his nine children assistance for their basic needs, the condition here will provide his child victims and any future child victims with some measure of protection from any of Oakley's future acts that may violate the law.

¶ 19. Furthermore, Oakley fails to note that incarceration, by its very nature, deprives a convicted individual of the fundamental right to be free from physical restraint, which in turn encompasses and restricts other fundamental rights, such as the right to procreate.²⁵ See Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (acknowledging that liberty defined by the Fourteenth Amendment denotes more than just freedom from bodily restraint); State ex rel. Anderson-El v. Cooke, 2000 WI 40, ¶ 24, 234 Wis. 2d 626, 610 N.W.2d 821 (noting that a prisoner's rights and privileges are diminished compared to other citizens, although a prisoner must still be afforded certain constitutional protections). Therefore, given that a convicted felon does not stand in the same position as someone who has not been convicted of a crime²⁶ , we have previously stated that "conditions of probation may impinge upon constitutional rights as long as they are not overly broad and are reasonably related to the person's rehabilitation." Edwards v. State, 74 Wis. 2d 79, 84-85, 246 N.W.2d 109 (1976).²⁷ In State v. Krebs, 212 Wis. 2d 127, , 568 N.W.2d 26 (Ct. App. 1997), the court of appeals recently applied this established standard to uphold a condition of probation that required a defendant who sexually assaulted his own daughter to obtain his probation agent's approval before entering into an intimate or sexual relationship. The court found that although the condition infringed upon a constitutional right, it was reasonable and not overly broad. Id. at 131.

¶ 20. Applying the relevant standard here, we find that the condition is not overly broad because it does not eliminate Oakley's ability to exercise his constitutional right to procreate. He can satisfy the condition of probation by making efforts to support his children as required by law. Judge Hazlewood placed no limit on the number of children Oakley could have. Instead, the requirement is that Oakley acknowledge the requirements of the law and support his present and any future children.²⁸ If Oakley decides to continue his present course of conduct — intentionally refusing to pay child support — he will face eight years in prison regardless of how many children he has. Furthermore, this condition will expire at the end of his term of probation. He may then decide to have more children, but of course, if he continues to intentionally refuse to support his children, the State could charge him again under § 948.22(2). Rather, because Oakley can satisfy this condition by not intentionally refusing to support his current nine children and any future children as required by the law, we find that the condition is narrowly tailored to serve the State's compelling interest of having parents support their children.²⁹ It is also narrowly tailored to serve the State's compelling interest in rehabilitating Oakley through probation rather than prison. The alternative to probation with conditions — incarceration for eight years — would have further victimized his children.³⁰ And it is undoubtedly much broader than this conditional impingement on his procreative freedom for it would deprive him of his fundamental right to he free from physical restraint. Simply stated, Judge Hazlewood preserved much of Oakley's liberty by imposing probation with conditions rather than the more punitive option of imprisonment. See State v. Evans, 77 Wis. 2d 225, 230, 252 N.W.2d 664 (1977) ("Whether sentence 'is withheld or imposed and stayed, a convicted person's status as a probationer is a matter of grace or privilege and not a right' made possible by the legislature.") (citation omitted).

¶ 21. Moreover, the condition is reasonably related to the goal of rehabilitation. A condition is reasonably related to the goal of rehabilitation if it assists the convicted individual in conforming his or her conduct to the law. See State v. Miller, 175 Wis. 2d 204, 210, 499 N.W.2d 215 (Ct. App. 1993) (ruling that condition on probationer convicted of making obscene telephone calls forbidding him to make calls to any woman other than a family member was reasonably related to his rehabilitation); Edwards, 74 Wis. 2d at 85 (holding that condition on probationer convicted of three crimes with co-defendants banning her from having any contact with her co-defendants was reasonably related to her rehabilitation). Here, Oakley was convicted of intentionally refusing to support his children. The condition at bar will prevent him from adding victims if he continues to intentionally refuse to support his children. As the State argues, the condition essentially bans Oakley from violating the law again. Future violations of the law would be detrimental to Oakley's rehabilitation, which necessitates preventing him from continuing to disregard its dictates. Accordingly, this condition is reasonably related to his rehabilitation because it will assist Oakley in conforming his conduct to the law.

I — I HH 1 — 1

¶ 22. Having determined that the probation condition is valid, we turn now to the issue of whether Oakley waived his claim of error that the State was impermissibly allowed to withdraw from an earlier plea agreement by entering into a subsequent plea agreement with the State.³¹ Whether a defendant has waived his or her claim of error by entering a plea is a question of law which this court reviews de novo. State v. Lechner, 217 Wis. 2d 392, 404 n.8, 576 N.W.2d 912 (1998); State v. Riekkoff, 122 Wis. 2d 119, 122-25, 332 N.W.2d 744 (1983).

¶ 23. As this court has previously stated, "[i]t is well-established that a plea of no contest, knowingly and understanding^ made, constitutes a waiver of non-jurisdictional defects and defenses, including claimed violations of constitutional rights." Lechner, 217 Wis. 2d at 404 n.8. Therefore, when a defendant pleads no contest, he or she waives all defenses based on a denial of due process because the prosecutor breached an earlier plea agreement. In the instant case, Oakley pled no contest based on his second plea agreement. By doing so, he waived any claim of error that may have occurred when the circuit court permitted the State to withdraw from the first plea agreement.³² As the court of appeals noted in State v. Paske, 121 Wis. 2d 471, 474, 360 N.W.2d 695 (Ct. App. 1984), "[i]t is only when the consensual character of the plea is called into question that the validity of a guilty plea may be impaired." There is no indication here that Oakley's plea was nonconsensual. Accordingly, we find that Oakley, by pleading no contest to the second plea agreement, waived his claim of error that the State was impermissibly allowed to withdraw from the earlier plea agreement.

IV

¶ 24. In conclusion, based on the atypical facts presented by this case, the Constitution does not shield Oakley — whose record evidences consistent disregard for the law and ongoing victimization of his own nine children — from this unique probation condition where he has intentionally refused to support his children. Under the exceptional factors presented by this case, the probation condition is not overbroad and it is reasonably related to the probationary goal of rehabilitation. Indeed, this condition is narrowly tailored to serve the compelling state interest of requiring parents to support their children as well as rehabilitating those convicted of crimes. Moreover, this condition will assist Oakley in conforming his conduct to the law and is therefore reasonably related to his rehabilitation. Finally, we find that he waived any claim of error by pleading no contest under the second plea agreement.

By the Court. — The decision of the court of appeals is affirmed.

1 Oakley initially argued a third issue on appeal to this court: whether the trial court erred in finding that transferring him to an out-of-state prison did not present a new factor to merit resentencing. However, in his reply brief, Oakley acknowledges that he has since been returned to prison in Wisconsin. Accordingly, that issue is now moot. See State ex rel. Hawkins v. DHSS, 92 Wis. 2d 420, 421, 284 N.W.2d 680 (1979) (determining that appeal was moot where convicted individual had been released from incarceration).

2 All subsequent references to the Wisconsin Statutes will be to the 1997-98 version unless otherwise indicated.

3 Oakley's probation on his felony witness intimidation conviction in Sheboygan County was revoked for violating a condition of his probation.

4 In order to address the epidemic of noncustodial parents refusing to pay child support, Congress passed the Deadbeat Parents Punishment Act of 1998, Pub. L. 105-187, amending 18 U.S.C. § 228.

5 Timothy Grail, Child Support for Custodial Mothers and Fathers, Current Population Reports, United States Census Bureau, 4 (October 2000).

6 United States Census Bureau, U.S. Dep't of Commerce, Current Population Survey, Child Support 1997, Table 1 (1998).

7 Karen Rothschild Cavanaugh & Daniel Pollack, Child Support Obligations of Incarcerated Parents, 1 Cornell J.L. & Pub. Poly 531 (1998).

8 See Child Support 1997, Table 1; Drew D. Hansen, The American Invention of Child Support: Dependency and Punishment in Early American Child Support Law, 108 Yale L.J. 1123, 1125-26 (1999) (observing that historically, courts, spurred by increasing concern over the dependency of single mothers, created child support obligations); Daniel R. Meyer, "Fathers and the Child Support System" 88, in Child Support: The Next Frontier, (J. Thomas Oldham & Marygold S. Melli eds., 2000).

9 Marsha Garrison, "The Goals and Limits of Child Support Policy" 16 in Child Support: The Next Frontier, (J. Thomas Oldham & Marygold S. Melli eds., 2000).

10 Grail, supra, 2.

11 Daniel R. Meyer & Maria Candan, Child Support and Economic Well-Being Following an Exit from AFDC (1996) (report submitted to the Wisconsin Department of Workforce Development); Elaine Sorensen & Chava Zibman, To What Extent do Children Benefit from Child Support? New Information from the National Survey of America's Families, 1997, Focus, Spring 2000, at 36-37.

12 Garrison, supra, 16.

13 Joseph Dalaker & Bernadette D. Proctor, Poverty in the United States, vi Current Population Reports, United States Census Bureau (2000).

14 Children's Defense Fund, Child Poverty by State-1997 (2000); U.S. Census Bureau, Low Income Uninsured Children by State: 1997, 1998, and 1999, Current Population Survey (1998-2000).

15 Garrison, supra, 22 — 26.

16 Sorensen, supra, 36.

17 Sorensen, supra, 37.

18 Justice Bradley seems to disagree with the public policy that intentionally refusing to pay child support should warrant punishment because this crime "imbues a fundamental liberty interest [the right to procreate] with a sliding scale of wealth." Justice Bradley's dissent at ¶ 58, joined by Chief Justice Abra-hamson and Justice Sykes. However, in opting to score rhetorical points rather than providing a clear and judicious explication of the law, Justice Bradley ignores the central element in this crime: it punishes only intentional refusal to pay child support. If an individual is unable to pay child support, but did not intentionally refuse to do so, this element of the offense would not be met. This is not a strict liability offense. While Justice Bradley may believe that it is unfair for the law to require that "deadbeat parents" not intentionally refuse to pay child support, that is a policy decision for the legislature, not this court.

19 In Wisconsin, a circuit court typically orders support payments as a percentage of a parent's income, not as an invariable dollar amount. Wis. Admin. Code §§ DWD 40.03 & 40.04 (2001). This means that it is within any parent's ability — regardless of his or her actual income or number of children he or she has — to comply with a child support order.

20 See, e.g., Andrew Horwitz, Coercion, Pop-Psychology and Judicial Moralizing: Some Proposals for Curbing Judicial Abuse of Probation Conditions, 57 Wash. & Lee L. Rev. 75 (2000) (advocating greater appellate court oversight of the trial judge's discretion to experiment with new probation conditions); Jon A. Brilliant, The Modern Day Scarlet Letter: A Critical Analysis of Modern Probation Conditions, 1989 Duke L. J. 1357, 1384 (1989) (lauding "innovative judges" for imposing creative sentences but urging appellate review when "their creativity strays too far.").

21 Justice Bradley misrepresents the record by stating that Judge Hazlewood "acknowledged that Oakley [would] be unable to meet this condition." Justice Bradley's dissent at ¶ 43. However, a careful reading of the record uncovers no such acknowledgement by Judge Hazlewood. Instead, the record reveals Judge Hazlewood's recognition that Oakley might not be able to earn large amounts of money in the future, but that he would be expected to provide support based on his ability to earn and pay. But Judge Hazlewood had no doubt that Oakley could avoid committing the crimes for which he was convicted: intentionally refusing to support his children, which is what the probation condition is directed at preventing. As previously noted, Judge Hazlewood commented on the intent element of this crime by stating that "if Mr. Oakley had paid something, had made an earnest effort to pay anything within his remote ability to pay, we wouldn't be sitting here." While Justice Bradley seems to be attempting to twist Judge Hazlewood’s statement regarding Oakley's situation into something with malevolent overtones, the record does not support her effort.

22 Justice Bradley begins here defending what she apparently perceives is Oakley's absolute right to procreate children while refusing to support them. Justice Bradley's dissent at ¶ 40. In the process, she diminishes the basic needs of children — -the true victims when a parent intentionally refuses to pay child support — contrary to Wis. Stat. § 948.22(2), which is the crime Oakley was convicted of committing. Unlike Justice Bradley, we do not believe that Oakley has an absolute right to refuse to support his nine current children or any future children.

23 While the condition here survives strict scrutiny, see majority op. at ¶ 18, we note that probation conditions — like prison regulations — are not subject to strict scrutiny analysis, contrary to the unwarranted assumptions in the arguments of both Oakley and Justice Bradley. Justice Bradley's dissent at ¶ 45. If probation conditions were subject to strict scrutiny, it would necessarily follow that the more severe punitive sanction of incarceration, which deprives an individual of the right to be free from physical restraint and infringes upon various other fundamental rights, likewise would be subjected to strict scrutiny analysis. See Sherry F. Colb, Freedom from Incarceration: Why is This Right Different from All Other Rights? 69 N.Y.U. L. Rev. 781 (1994) (advocating strict scrutiny for every time an individual is incarcerated because fundamental rights are implicated including total deprivation of the right to be free from physical restraint during the period of confinement). Thus, Oakley and Justice Bradley's position is either illogical in that it requires strict scrutiny for conditions of probation that infringe upon fundamental rights but not for the more restrictive alternative of incarceration, or it is unworkable in that it demands the State meet the heavy burden of strict scrutiny whenever it is confronted with someone who has violated the law. This would be in addition to the State's burden to demonstrate a defendant's guilt beyond a reasonable doubt. We reject the ■unsupported position of Oakley and Justice Bradley that strict scrutiny applies in this context.

In contrast, Justice Sykes identifies the correct test. Justice Sykes' dissent at ¶ 68, joined by Chief Justice Abraham son and Justice Bradley. However, Justice Sykes missteps by failing to apply that test and, in relying on Zablocki v. Redhail, 434 U.S. 374, 376 (1978), she utilizes strict scrutiny, like Justice Bradley. Justice Sykes' dissent at ¶¶ 72-73. Although it may be that the facts of Zablocki are interesting because it was a Wisconsin case, its holding is not implicated here for the simple reason that the test in Zablocki was "[w]hen a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests," a.k.a., strict scrutiny. 434 U.S. at 388. Therefore, Justice Sykes' dissent is legally inconsistent in that she identifies the correct test (to avoid the precedential pitfalls that Justice Bradley would make as highlighted above), but she nevertheless applies the incorrect test, strict scrutiny, to Oakley's case.

24 Justice Bradley attempts to minimize the force of State v. Kline, 963 P.2d 697 (Or. Ct. App. 1998) as "a single appellate court case from the state of Oregon." See Justice Bradley's dissent at ¶ 61 n.3. We agree with Justice Bradley's dissent insofar as it implies that parole conditions infrequently face appellate review. While it may be that criminal defendants, facing the more punitive alternative of incarceration, are generally unwilling to appeal conditions of their probation, this lack of mettle should not be taken as justification for overturning any probation condition that happens to reach an appellate court. See Horwitz, supra, 81-84 (discussing the reluctance of probationer's, "who feel with good cause," that appealing a condition of probation may result in the imposition of incarceration if the condition is overturned). Furthermore, as we previously observed, the particular condition at issue here is only appropriate in the most egregious circumstances. We decline to overturn a probation condition that is reasonably related to a defendant's rehabilitation because it is only utilized when the defendant's conduct is outrageous and therefore even less likely to reach an appellate court. Thus, while the condition here is extreme and is only acceptable where a defendant's conduct is truly shocking, it is not unprecedented.

25 If Oakley were incarcerated, he would be unable to exercise his constitutional right to procreate. See Hernandez v. Coughlin, 18 F.3d 133, 137 (2d Cir. 1994) (observing that "[t]he Constitution. . .does not create any protected guarantee to conjugal visitation privileges while incarcerated"); Goodwin v. Turner, 908 F.2d 1395, 1398 (8th Cir. 1990) (asserting that whether restriction of prisoner's right to procreate is valid is determined by whether it "is reasonably related to achieving its legitimate penological objective"); Goodwin v. Turner, 702 F.Supp. 1452, 1454 (W.D. Missouri 1988) (holding that "many aspects of marriage that make it a basic civil right, such as cohabitation, sexual intercourse, and the bearing and rearing of children, are superseded by the fact of confinement").

26 For example, convicted felons can be deprived of their constitutional right to vote even after serving their sentence. See Richardson v. Ramirez, 418 U.S. 24, 56 (1974) (convicted felons can be deprived of their right to vote after serving their sentences); Wis. Const, art. Ill, § 2(4)(a).

27 Justice Bradley disregards this reasonability standard and asserts, without any authority, that the probation condition here requires strict scrutiny. Justice Bradley's dissent at ¶ 45. Nevertheless, there is abundant case law that a probation condition infringing upon a constitutional right is analyzed under the above well-established reasonability standard. Below is a sampling of the cases employing this well-established reasona-bility standard in analyzing a probation that infringes upon a convicted individual's fundamental right:

1st Amendment — Freedom of Speech

State v. Miller, 175 Wis. 2d 204, 210, 499 N.W.2d 215 (Ct. App. 1993) (holding that probation condition prohibiting probationer from telephoning any woman not a member of his family without prior permission from his probation officer was a reasonable and not overly broad infringement of probationer's first amendment rights); United States v. Turner, 44 F.3d 900, 903 (10th Cir. 1995) (asserting that probation condition requiring defendant convicted of obstructing federal court order to refrain from harassing, intimidating, or picketing in front of any abortion family planning services center permissible restriction of First Amendment right of free speech because restriction reasonably related to goal of prohibiting further illegal conduct); United States v. Clark, 918 F.2d 843, 847-48 (9th Cir. 1990) (ruling that probation condition that police officers convicted of perjury issue public apology is reasonable because recognition of guilt related to rehabilitation) rev'd on other grounds sub nom. United States v. Keys, 95 F.3d 874 (9th Cir. 1996); United States v. Terrigno, 838 F.2d 371, 374 (9th Cir. 1988) (upholding probation condition that defendant not speak for money about her crime, even though it infringed on her right to free speech, because it was reasonably related to her rehabilitation); United States v. Beros, 833 F.2d 455, 467 (3d Cir. 1987)(upholding probation condition that defendant refrain from representing union as elected official or paid employee because significant imposition upon defendant's First Amendment rights "reasonable in light of the offense").

1st Amendment — Freedom of Association

Turner, 44 F.3d at 903 (ruling that probation condition prohibiting defendant from harassing, intimidating or picketing in front of any abortion family planning services center permissible restriction of First Amendment freedom of association when convicted of obstructing federal court order and restriction reasonably related to goal of prohibiting further illegal conduct); United States v. Hughes, 964 F.2d 536, 542—43 (6th Cir. 1992) (upholding as reasonable a probation condition that prohibited the defendant from representing or serving as officer in Communications Workers of America constitutionally permissible when defendant convicted of violations of IRS Code and federal false statements statutes); United States v. Bolinger, 940 F.2d 478, 480 (9th Cir. 1991) (upholding probation condition that prevented defendant from participating in any motorcycle club activities as reasonably related to the defendant's rehabilitation where he was convicted of being a felon in possession of a weapon); Malone v. United States, 502 F.2d 554, 556-57 (9th Cir. 1974) (allowing probation condition that prohibited defendant from associating with Irish cultural, political, or social organizations as reasonably related to the goals of probation — thereby constitutionally permissible — when defendant, Irish Republican Army sympathizer, convicted of gun running).

1st Amendment — -Freedom of Religion and 2nd Amendment — Right to Bear Arms

United States v. Juvenile No. 1, 38 F.3d 470, 473 (9th Cir. 1994) (holding that probation condition prohibiting Native-Ameriean juveniles who pleaded guilty to simple assault from possessing firearms until age 21 is constitutionally permissible even though hunting with firearm important religious ritual to juveniles because probation condition reasonably served statutory goals of punishment, deterrence and public protection).

2nd Amendment — Right to Bear Arms

Rice v. United States, 850 F.Supp. 306 (E.D. Pa. 1994) (ruling that Congress could restrict a person's right to possess a firearm, after a conviction for possession of firearms by a convicted felon, even when a pardon was granted with regard to the underlying felony and citing Lewis v. United States, 445 U.S. 55 (1980)), rev'd on other grounds Rice v. United States, 68 F.3d 702 (3d 1995).

4th Amendment — Right to be Free from Unreasonable Searches and Seizures

Griffin v. Wisconsin, 483 U.S. 868, 874 (1987) (upholding Wisconsin law allowing a search of a probationer's home as long as the probation officer has "reasonable grounds" to believe the presence of contraband and reiterating its Morrissey v. Brewer, 408 U.S. 471 (1972) language that "probationers.. .do not enjoy 'the absolute liberty to which every citizen is entitled, but only. . .conditional liberty properly dependent on observance of special restrictions.'"). Right to Engage in Political Activity or Run for Political Office

U.S. v. Peete, 919 F.2d 1168, 1181 (6th Cir. 1990) (holding that probation condition on elected official convicted of attempting to extort bribe lawfully prevented that official from seeking or serving in elected public office during period of probation were valid because it would assist in the probationer's rehabilitation and protect the public); United States v. Tonry, 605 F.2d 144, 148 (5th Cir. 1979) (ruling that probationer convicted of violating federal election laws could be lawfully prohibited from running for political office or engaging in political activities during period of probation because the condition was reasonably related to the probationer's rehabilitation).

Freedom of Movement

United States v. Lowe, 654 F.2d 562, 568 (9th Cir. 1981) (upholding probation condition that prohibited defendants convicted of entering a submarine base illegally from coming within 250 feet of the base was reasonable "[g]iven the alternatives of imprisonment or some other greater restriction" upon the defendant's rights of movement, association, and speech); State v. Cooper, 282 S.E.2d 436, 439 (N.C. 1981) (ruling that probation condition prohibiting defendant from operating a motor vehicle on the public streets and highways between 12:01 a.m. and 5:30 a.m. was reasonably related to defendant's rehabilitation where defendant pled guilty to fourteen crimes involving the use of stolen credit cards).

Right to Procreate

State v. Krebs, 212 Wis. 2d 127, 131-32, 568 N.W.2d 26 (Ct. App. 1997) (upholding probation condition that required defendant convicted of sexually assaulting his daughter to obtain permission from his probation agent prior to engaging in sexual relationship was reasonable and not overly broad); State v. Kline, 963 P.2d 697, 699 (Or. Ct. App. 1998) (rejecting strict scrutiny of probation condition that required defendant to complete drug counseling and anger management treatment before fathering any future children). Accordingly, in light of the weight of authority indicating that strict scrutiny does not apply when a probation condition infringes upon a fundamental right and the dearth of authority to the contrary, we are convinced that the reasonability standard is the constitutionally valid approach to evaluate a probation condition that infringes upon a fundamental right. To hold otherwise here would elevate the right to procreate — which is undeniably fundamental — above all other fundamental rights, such as free speech, free exercise of religion, and the right to vote. There is no constitutional basis for doing so.

28 Contrary to the contention in ¶ 48 of Justice Bradley's dissent, we have stated condition at issue accurately. See ¶ 6 herein. That Oakley intentionally refused to pay child support is the choice that he made that led to the probation condition. Contrary to Justice Bradley's implication, that is the only choice at issue. It is not the amount of money he makes, but his persistent refusal to pay a cent to his children, despite his ability to do so.

29 Justice Bradley correctly notes that there is not a single court that "has allowed the right to have children conditioned upon financial status." Justice Bradley's dissent at ¶ 61. Today's opinion is in accord with that lack of precedent. We uphold Judge Hazlewood's efforts to preserve Oakley's fundamental rights — including his right to procreate — by not incarcerating him. Oakley must only stop committing the crime of intentionally refusing to pay child support in order stay within the conditions of his parole.

30 The fact that Oakley pled no contest to three counts of Wis. Stat. § 948.22(2) belies the implication in his brief that the State could have utilized other means to serve its compelling interest, such as wage assignment, lien on personal property, or civil contempt. Moreover, Oakley apparently admits that these means would be ineffective by asserting that he "cannot and probably will never have the ability to properly support [his] children." With this statement, Oakley attempts to confuse the financial ability to support his children fully with the intention of making any effort to do so. That is, Oakley violated § 948.22(2) because he intentionally refused to pay any child support, not because he lacked the financial wherewithal to pay any child support. As Judge Hazlewood observed, "if Mr. Oakley had paid something, had made an earnest effort to pay anything within his remote ability to pay, we wouldn't be sitting here."

31 Although Oakley attempts to frame the issue as whether the circuit court erroneously granted the State's motion to withdraw from the original plea agreement, we need not reach that issue because we determine that Oakley waived his right to a claim of error by entering into the subsequent plea agreement. See Hawkins v. State, 26 Wis. 2d 443, 449, 132 N.W.2d 545 (1965) (asserting that there was no need to determine the constitutionality of an allegedly illegal search because the defendant waived his right to litigate that issue with his plea of guilty).

32 In the second plea agreement, Oakley specifically agreed that he would not appeal the State's withdrawal of the first plea agreement. As the court of appeals observed in State v. Paske, 121 Wis. 2d 471, 474, 360 N.W.2d 695 (Ct. App. 1984), ”[c]ourts have frequently looked to contract law analogies in determining the rights of defendants allegedly aggrieved in the plea negotiation process." The State bargained for the term that Oakley would not appeal the State's withdrawal of the first plea agreement and Oakley was aware of what he was giving up in agreeing to it.