The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY July 8, 2021
2021COA92
No. 17CA1449, People v. Landis — Criminal Law — Sentencing — Sex Offender Intensive Supervision Probation; Constitutional Law — First Amendment — Freedom of Speech
A division of the court of appeals holds that the conditions of
defendant Christopher David Landis’s sentence to sex offender
intensive supervision probation (SOISP) restricting his use of the
internet and social media did not violate the Colorado statutory
scheme or his constitutional rights to free speech under the United
States and Colorado Constitutions. In doing so, the division holds,
as a matter of first impression in Colorado, that the United States
Supreme Court’s decision in Packingham v. North Carolina, 582 U.S.
___, 137 S. Ct. 1730 (2017), does not apply to conditions restricting
internet and social media use of a sentence to SOISP that a
defendant is still serving. COLORADO COURT OF APPEALS 2021COA92
Court of Appeals No. 17CA1449 Mesa County District Court No. 17CR296 Honorable Valerie J. Robison, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Christopher David Landis,
Defendant-Appellant.
SENTENCE AFFIRMED
Division IV Opinion by JUDGE DAVIDSON* Furman and Pawar, JJ., concur
Announced July 8, 2021
Philip J. Weiser, Attorney General, Gabriel P. Olivares, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jeanne Segil, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2020. ¶1 Defendant, Christopher David Landis, appeals his
probationary sentence for attempted sexual assault on a child. He
contends that the conditions of his probation restricting his use of
the internet and social media violate (1) the governing Colorado
statutory scheme and (2) his rights to free speech under the United
States and Colorado Constitutions. While we fully acknowledge
that, to date, the internet has become one of the most important
places, if not the most important place, for people to exchange views
and ideas, under the circumstances here, we disagree with both of
Landis’s contentions. Accordingly, we affirm.
I. Background
¶2 According to the affidavit of probable cause for arrest, Landis
sexually assaulted his stepdaughter when she was ten years old.
The evidence included his admission to police that he touched the
victim’s vagina and breasts.
¶3 The prosecution charged Landis with sexual assault on a child
and sexual assault on a child by one in a position of trust. He
pleaded guilty to an added count of attempted sexual assault on a
child, and the original charges were dismissed. The parties
stipulated to a sentence to probation.
1 ¶4 At the sentencing hearing, the prosecutor agreed with the
recommendation in the presentence investigation report that the
district court sentence Landis to sex offender intensive supervision
probation (SOISP) and require him to comply with (1) the standard
“Additional Conditions of Probation for Adult Sex Offenders” (the
standard conditions) and (2) the recommendations in the sex offense
specific evaluation (SOSE).
¶5 However, Landis argued, among other things, that he should
not be required to comply with the two standard conditions
prohibiting use of the internet and social media without prior
approval from his probation officer. He emphasized that he is
required to use the internet in his ongoing employment at an
electronics installation company. He also argued that the
conditions violate his constitutional rights based on Packingham v.
North Carolina, 582 U.S. ___, 137 S. Ct. 1730 (2017) (invalidating
statute creating new felony offense for violation of post-custodial
restrictions on sex offender access to social media).
¶6 The district court sentenced Landis to seven years of SOISP.
As for the two standard conditions restricting use of the internet
and social media, the court required Landis to comply with those
2 conditions but modified them to allow for such use required by his
employment at the electronics installation company. Specifically,
the modified conditions at issue read (with the modifications in bold
typeface) as follows:
22. You shall not be allowed to subscribe to any internet service provider, by modem, LAN, DSL, or any other avenue (to include, but not limited to, satellite dishes, PDAs, electronic games, web televisions, internet appliances and cellular/digital telephones) and shall not be allowed to use another person’s internet or use the internet through any venue until approved by the supervision team, with the exception of use through employment for [the electronics installation company]. When access has been approved (including access through [the electronics installation company]), you agree to sign, and comply with, the conditions of the “Computer Use Agreement” – JDF321P. Additionally, you will allow your probation officer, or other person trained, to conduct searches of computers or other electronic devices used by you. This includes the computer usage during employment with [the electronics installation company]. The person conducting the search may include a non-judicial employee and you may be required to pay for such a search.
....
28. You shall not utilize, by any means, any social networking forums offering an interactive, user-submitted network of friends,
3 personal profiles, blogs, chat rooms or other environment which allows for real-time interaction with others, except under circumstances approved in advance and in writing by the probation officer in consultation with the community supervision team. The only exception authorized by the Court at the time of sentencing was through employment with [the electronics installation company]. This exception does not preclude additional exceptions that may be authorized by the probation officer in consultation with the community supervision team.
II. Landis’s Statutory Claim
¶7 Landis contends that the district court abused its discretion
by imposing the probation conditions at issue because they are not
reasonably related to his rehabilitation and the purposes of
probation under section 18-1.3-204(2)(a)(XV), C.R.S. 2020. We
disagree.
A. Applicable Law and Standard of Review
¶8 Probation is “a privilege, not a right.” People v. Smith, 2014
CO 10, ¶ 8. It is an alternative to prison and is intended to be
rehabilitative. See § 18-1.3-104(1)(a), (b), C.R.S. 2020; Smith, ¶ 8.
If an offender seeks a probationary sentence as an alternative to
4 prison, he or she must accept the district court’s conditions for
probation. Smith, ¶ 8.
¶9 Section 18-1.3-204(2) lists the various conditions of probation
that a district court may impose, which includes a catchall for “any
other conditions reasonably related to the defendant’s rehabilitation
and the purposes of probation.” § 18-1.3-204(2)(a)(XV).
¶ 10 The parties agree that the following five factors are relevant in
determining whether the probation conditions at issue are
reasonably related to Landis’s rehabilitation and the purposes of
probation: (1) whether the conditions are reasonably related to the
underlying offense; (2) whether the conditions are punitive to the
point of being unrelated to rehabilitation; (3) whether the conditions
are unduly severe and restrictive; (4) whether the defendant may
petition the court to lift the conditions temporarily when necessary;
and (5) whether less restrictive means are available. See People v.
Brockelman, 933 P.2d 1315, 1319 (Colo. 1997).
¶ 11 “[A district] court has broad discretion to impose whatever
[probation] conditions it considers appropriate” in any given case.
Smith, ¶ 9; see also § 18-1.3-202(1)(a), C.R.S. 2020 (A district court
may grant a defendant probation “upon such terms and conditions
5 as it deems best.”); § 18-1.3-204(1)(a) (“The conditions of probation
shall be such as the court in its discretion deems reasonably
necessary.”).
¶ 12 We review the district court’s decision for an abuse of
discretion. See Brockelman, 933 P.2d at 1319 (“[T]he applicable
standard of review . . . requires an abuse of discretion by the trial
court to occasion any modification of the trial court’s [conditions of
probation].”); cf. People v. Cooley, 2020 COA 101, ¶ 26 (“We
consider de novo whether a probation condition is constitutional or
statutorily authorized.”) (emphasis added).
B. Brockelman Factors
¶ 13 We conclude from our evaluation of the five Brockelman
factors that the probation conditions at issue restricting Landis’s
use of the internet and social media are reasonably related to his
rehabilitation and the purposes of probation.
¶ 14 First, the conditions are reasonably related to Landis’s
underlying offense. To be sure, Landis did not use the internet in
attempting to sexually assault his stepdaughter. However, he
engaged in sexual conduct with a child, and it was reasonable to
place restrictions on Landis’s use of a medium that easily can be
6 used to facilitate contact with children. See United States v.
Edwards, 813 F.3d 953, 969 n.11 (10th Cir. 2015) (“Computers and
internet connections have been characterized elsewhere as tools of
the trade for those who sexually prey on children.” (quoting United
States v. Colbert, 605 F.3d 573, 578 (8th Cir. 2010))); United States
v. Robertson, 350 F.3d 1109, 1113 (10th Cir. 2003) (“[C]yberspace
provides an increasingly common and effective medium by which
would-be sexual predators can contact minors.”); see also People v.
Crabtree, 37 N.E.3d 922, 927 (Ill. App. Ct. 2015) (“[A]lthough [the]
defendant’s crime did not include use of a computer or a social
networking website, it involved the sexual abuse of a young girl.
Thus, the conditions of probation [restricting his use of a computer]
appear reasonably related to the goals of deterrence, protection of
the public, and rehabilitation of [the] defendant.”); McVey v. State,
863 N.E.2d 434, 450 (Ind. Ct. App. 2007) (where the defendant was
convicted of child molesting, the court held that a probation
condition restricting his internet access was reasonable — despite
the fact that his offense did not involve the use of a computer —
because “accessing prohibited material is easily accomplished with
a computer, and for that reason computer access would provide a
7 temptation of such a magnitude that exposure to it would not be in
the best interest of [the defendant’s] rehabilitation. This is so
because the internet defies boundaries and offers unlimited access
to people, including children.”) (citation omitted).
¶ 15 Notably, according to the SOSE, objective testing indicated
that Landis’s highest sexual interest is toward juvenile females. It
also concluded that he was in high denial regarding his offense.
The SOSE recommended that he be “monitored carefully while in
the community” and “not have contact with [the victim] or with
anyone younger than 18.” See People v. Devorss, 277 P.3d 829, 837
(Colo. App. 2011) (“By prohibiting unapproved contact with an
underage child, a sex offender learns to avoid situations that may
lead to inappropriate and unlawful conduct.”).
¶ 16 Regarding the second and third Brockelman factors, the
conditions at issue are not punitive to the point of being unrelated
to rehabilitation and are not unduly severe and restrictive.
Significantly, this was not a standard sentence to probation.
Landis is sentenced to sex offender intensive supervision probation.
Defendants serving an SOISP sentence are subject to “severely
restricted activities” and “receive the highest level of supervision
8 that is provided to probationers.” § 18-1.3-1007(2), C.R.S. 2020;
see also McKune v. Lile, 536 U.S. 24, 32-33 (2002) (“Sex offenders
are a serious threat in this Nation. . . . When convicted sex
offenders reenter society, they are much more likely than any other
type of offender to be rearrested for a new rape or sexual
assault. . . . States thus have a vital interest in rehabilitating
convicted sex offenders.”); see generally People v. Manaois, 2021 CO
49, ¶¶ 35-40 (discussing the special nature of sex offender
sentencing, including SOISP’s rigorous treatment and supervision
requirements).
¶ 17 The General Assembly has given the Sex Offender
Management Board (SOMB) authority to “develop, implement, and
revise, as appropriate, guidelines and standards to treat adult sex
offenders.” § 16-11.7-103(4)(b), C.R.S. 2020. The probation
conditions at issue were based on the then-applicable standard
“Additional Conditions of Probation for Adult Sex Offenders,” which
the SOMB determined were appropriate for sex offenders sentenced
to SOISP at that time.
¶ 18 Further, the conditions are not unduly severe and restrictive
because the district court specifically authorized Landis to use the
9 internet and social media as required by his employment at the
electronics installation company.
¶ 19 As to the fourth Brockelman factor, Landis retains the right to
ask the district court to modify the conditions in the future. See
§ 18-1.3-204(4)(a). Even more significantly, the probation
conditions at issue specifically envision that Landis’s probation
officer and the rest of his supervision team will tailor the conditions
to Landis’s circumstances. For example, condition number 22
provides that Landis will not be allowed to use the internet “until
approved by the supervision team,” and that Landis is required to
comply with the Computer Use Agreement “[w]hen access has been
approved.” See United States v. Koch, 625 F.3d 470, 482 (8th Cir.
2010) (upholding a supervised release condition restricting the
defendant’s computer and internet use “because the restriction is
not a complete ban. [The defendant] is permitted to use a computer
and the internet with prior approval from a probation officer.”); cf.
People v. Lientz, 2012 COA 118, ¶ 26 (distinguishing cases that
included an outright ban on intimate relationships that did not
allow for modification by the defendant’s probation officer or
10 treatment provider). As the Fifth Circuit explained in United States
v. Miller,
[t]he district court’s restrictions . . . permit flexibility by allowing the probation officer to consider all the circumstances, including [the defendant’s] needs for computer and Internet access and alternatives that may exist in the future for supervising that access. . . . [We] “assume the Probation Office will reasonably exercise its discretion by permitting [the defendant] to use the Internet when, and to the extent, the prohibition no longer serves the purposes of his supervised release.”
665 F.3d 114, 133-34 (5th Cir. 2011) (quoting United States v. Love,
593 F.3d 1, 12 (D.C. Cir. 2010)); see also United States v. Morais,
670 F.3d 889, 897 (8th Cir. 2012) (“Given the importance of the
Internet as a resource, we expect that the probation office will not
arbitrarily refuse such approval when it is reasonably requested
and when appropriate safeguards are available.”).
¶ 20 Furthermore, for many of the reasons we have already
discussed, we conclude that less restrictive means would not be
reasonable. This is a sentence to SOISP, the conditions already
allow internet and social media use required by Landis’s
employment, and the conditions allow him to seek modification of
the conditions through his probation officer or the district court.
11 Further, Landis will obviously retain other means for
communication, including communication in person and over the
telephone.
III. Landis’s Federal Constitutional Claim
¶ 21 Landis also contends that the two probation conditions at
issue infringe on his right to free speech under the United States
Constitution. See U.S. Const. amends. I, XIV.
¶ 22 We review the constitutionality of a probation condition de
novo. See Cooley, ¶ 26.
A. Constitutionality of Internet Restrictions: Packingham
¶ 23 At sentencing, and continuing in this appeal, Landis bases his
claim that his probationary conditions are unconstitutional on the
United States Supreme Court’s decision in Packingham v. North
Carolina, 582 U.S. ___, 137 S. Ct. 1730 (2017). Packingham
involved a North Carolina statute making it a felony for a registered
sex offender to access commercial social networking websites like
Facebook and Twitter. See id. at ___, 137 S. Ct. at 1733-34. The
Supreme Court held that the statute was unconstitutional. See id.
at ___, 137 S. Ct. at 1735-38.
12 ¶ 24 However, the Supreme Court specifically pointed out that “[o]f
importance” to the Court was “the troubling fact that the [North
Carolina] law imposes severe restrictions on persons who already
have served their sentence and are no longer subject to the
supervision of the criminal justice system.” Id. at ___, 137 S. Ct. at
1737 (emphasis added). The Court repeated the same point soon
after, concluding that “[i]t is unsettling to suggest that only a
limited set of websites can be used even by persons who have
completed their sentences.” Id. (emphasis added); see also United
States v. Halverson, 897 F.3d 645, 658 (5th Cir. 2018) (concluding
that “the driving concern” of the Court in Packingham was that the
North Carolina statute applied to people who were no longer serving
their sentences).
¶ 25 We conclude that Packingham is distinguishable on that basis.
Unlike the defendant in Packingham, Landis is quite obviously still
serving his probationary sentence for a sex-related offense. See
Manaois, ¶ 46 (pointing out that a sentence to SOISP applies to an
offender who commits a sex offense or a sex-related offense) (citing
§ 18-1.3-1007(1)(a)). As the United States Supreme Court held in
United States v. Knights, “[i]nherent in the very nature of probation
13 is that probationers ‘do not enjoy “the absolute liberty to which
every citizen is entitled.”’” 534 U.S. 112, 119 (2001) (quoting Griffin
v. Wisconsin, 483 U.S. 868, 874 (1987)). “Just as other
punishments for criminal convictions curtail an offender’s
freedoms, a court granting probation may impose reasonable
conditions that deprive the offender of some freedoms enjoyed by
law-abiding citizens.” Id.; see also Gall v. United States, 552 U.S.
38, 48 (2007) (“Offenders on probation are . . . subject to several
standard conditions that substantially restrict their liberty.”)
(emphasis added).
¶ 26 We agree with other courts that have distinguished
Packingham on that same basis for other types of sex-related
offenses. See United States v. Carson, 924 F.3d 467, 472-73 (8th
Cir. 2019); Halverson, 897 F.3d at 657-58; United States v. Rock,
863 F.3d 827, 831 (D.C. Cir. 2017); State v. King, 950 N.W.2d 891,
900-02 (Wis. Ct. App. 2020); Alford v. State, 279 So. 3d 752, 754-56
(Fla. Dist. Ct. App. 2019). But see United States v. Eaglin, 913 F.3d
88, 95-99 (2d Cir. 2019); United States v. Holena, 906 F.3d 288,
294-95 (3d Cir. 2018).
14 ¶ 27 And given that Landis is serving a sentence to SOISP, we are
unpersuaded by his argument that the probation conditions at
issue amount to an unconstitutional prior restraint. This is not a
case of a free citizen being enjoined from engaging in
constitutionally protected speech. See In re Jawan S., 121 N.E.3d
1002, 1016-17 (Ill. App. Ct. 2018) (explaining why the principle of
an unconstitutional prior restraint does not apply to conditions of
probation).
¶ 28 In United States v. Ritter, the Sixth Circuit concluded that
“[s]upervisory conditions that implicate fundamental rights such as
freedom of speech and freedom of association are subject to careful
review, but if primarily designed to meet the ends of rehabilitation
and protection of the public, they are generally upheld.” 118 F.3d
502, 504 (6th Cir. 1997). Here, we have already concluded that the
two probation conditions at issue meet the goals of Landis’s
rehabilitation and the purposes of SOISP.
B. Constitutionality of Internet Restrictions: Probationary Sex Offenders
¶ 29 We have concluded that the rule in Packingham that a state
statute imposing a lifetime restriction of internet access to all
15 registered sex offenders is unconstitutional is inapplicable to an
analysis of the constitutionality of internet restrictions of sex
offenders on probation or supervised release. Landis argues that,
nevertheless, even under the more general intermediate scrutiny
test for determining the federal constitutionality of the probation
conditions at issue, the restrictions violate the First Amendment.
We do not agree.
¶ 30 For a content-neutral law to survive intermediate scrutiny, the
law must be “narrowly tailored to serve a significant governmental
interest.” Packingham, 582 U.S. at ___, 137 S. Ct. at 1736 (quoting
McCullen v. Coakley, 573 U.S. 464, 486 (2014)). “[T]he essence of
narrow tailoring” is that a restriction “focuses on the source of the
evils the [government] seeks to eliminate . . . without at the same
time banning or significantly restricting a substantial quantity of
speech that does not create the same evils.” Ward v. Rock Against
Racism, 491 U.S. 781, 799 n.7 (1989). Here, the probation
conditions focus on the source of evil the government aimed to
eliminate — convicted offenders of sex assaults against children,
who are still serving their sentences but nevertheless contact
minors or view sexually stimulating materials. Further, the
16 probation conditions promote the substantial government interest
of protecting minors from a convicted sex offender who is still
serving his sentence and is still in the midst of rehabilitation. See
id. at 799 (concluding that the requirement of narrow tailoring is
satisfied if the restriction “promotes a substantial government
interest that would be achieved less effectively absent the
regulation.” (quoting United States v. Albertini, 472 U.S. 675, 689
(1985))).
¶ 31 We are unpersuaded by Landis’s argument that the district
court should have employed less restrictive means to regulate his
internet use. As the Fifth Circuit explained in Miller,
we reject the argument that a district court may only resort to restrictions on Internet access like those imposed in the present case after investigating the efficacy of other options such as monitoring computer usage and Internet sites visited, unannounced inspections, and filtering devices. Internet access is widely available at locations other than one’s home or place of employment. Internet access is similarly widely available from many types of devices that defendants . . . might obtain or use without detection. In addition, there are a variety of devices that are likely to be possessed by friends, family, and acquaintances that might be available to defendants . . . for Internet access without detection.
17 665 F.3d at 133.
¶ 32 Additionally, the probation conditions at issue still leave ample
channels of communication for Landis to engage in everyday life.
For example, Landis may still communicate in person,
communicate over the telephone, receive news from television and
newspapers, and write to his government representatives. See Hill
v. Thomas, 973 P.2d 1246, 1257 (Colo. 1999) (absent a showing
that channels of communication are inadequate for petitioners to
express themselves, the law will be deemed to have left open ample
alternatives and should be upheld as constitutional), aff’d sub
nom. Hill v. Colorado, 530 U.S. 703 (2000).
¶ 33 We conclude that although the probation conditions at issue
are not the least restrictive means available, they are still
sufficiently narrowly tailored to serve the significant government
interest of protecting minors from a convicted sex offender who is
still serving his sentence and is still in the midst of rehabilitation.
IV. Landis’s State Constitutional Claim
¶ 34 Finally, Landis contends that the two probation conditions at
issue infringe on his right to free speech under the Colorado
18 Constitution. See Colo. Const. art. II, § 10. In doing so, he
emphasizes that the Colorado Constitution provides greater
protection of free speech than the United States Constitution. See,
e.g., Bock v. Westminster Mall Co., 819 P.2d 55, 59 (Colo. 1991)
(“For more than a century, this Court has held that Article II,
Section 10 [of the Colorado Constitution] provides greater protection
of free speech than does the First Amendment [to the United States
Constitution].”).
¶ 35 However, Landis makes only a very general argument on
appeal that “[b]ecause [the probation conditions at issue] fail the
intermediate scrutiny test under the First Amendment, they
necessarily fail the more stringent test under article II, section 10,
of the Colorado Constitution.” In the district court, too, he made no
specific argument regarding his state constitutional claim beyond
his general assertion that the Colorado Constitution provides
“broader protection” of speech than the First Amendment.
¶ 36 As divisions of this court have determined, “where neither
party argues that a conceptual framework different from First
Amendment analysis governs the analysis of a free speech issue
under the Colorado Constitution, and federal jurisprudence has
19 established a framework for considering the issue, our analysis may
proceed solely under the First Amendment.” In re Marriage of
Newell, 192 P.3d 529, 535 (Colo. App. 2008); see also Holliday v.
Reg’l Transp. Dist., 43 P.3d 676, 681 (Colo. App. 2001) (same).
Here, we have held that the probation conditions at issue are not
unconstitutional under the conceptional framework for analyzing a
First Amendment claim. Accordingly, because Landis has advanced
no specific suggestion on how a claim under article II, section 10 of
the Colorado Constitution should be analyzed differently, we
conclude that his claim under the Colorado Constitution also fails.
See also Curious Theatre Co. v. Colo. Dep’t of Pub. Health & Env’t,
220 P.3d 544, 551 (Colo. 2009) (“[W]e have at times characterized
the state constitution as providing greater protection for individual
freedom of expression than the Federal Constitution. We have,
however, rarely, if ever, construed article II, section 10 to
circumscribe more narrowly than the First Amendment the
regulatory powers of government.”) (citations omitted).
V. Conclusion
¶ 37 The sentence is affirmed.
JUDGE FURMAN and JUDGE PAWAR concur.