As part of his September 2008 plea agreement stemming from charges of sexual assault, Defendant agreed to plead guilty to the charges in return for a suspended four to ten year sentence with three probation conditions: (1) he was not to participate in friendships or relationships with women or men who have children under the age of eighteen; (2) he was to abide by a 9 p.m. curfew; and (3) he was not buy, have, or use any regulated drugs unless prescribed by a doctor.
You see where this is going.
At approximately 10:30 p.m. on April 12, 2009, police came to Defendant’s home on an unrelated matter and found that he was not home. After learning that the police were looking for him, Defendant voluntarily went to the police station at 10:45 p.m. He smelled of marijuana and admitted that he “took a couple hits off a joint” that evening. When questioned about his relationship with a woman named Bonnie, Defendant confirmed that she had three children. Upon his arrest for probation violations, Defendant asked police to have his mother deliver the flowers to Bonnie that were in his car.
At trial, the court found that the State met its burden of proving a probation violation by a preponderance of the evidence and reinstated Defendant’s original suspended sentence. On appeal, Defendant argued that the State failed its burden because it did not submit evidence on the ages of Bonnie’s children, who might all be over the age of 18 and still living with their parent. The Court reasoned that the State met its prima facie burden by presenting evidence from Defendant that he revealed the existence of the children in a meeting with his probation officer who had examined him in the context of his probation condition. The Court reasoned that it was then up to Defendant to present evidence to rebut the ensuing presumption the children were minors and that without such evidence the trial court’s conclusion that Defendant had violated the first probation condition was reasonable.
Defendant then raised the argument that the condition violated his first amendment right to free assembly. The Court rejected this argument as an impermissible collateral challenge that could have and should have been raised at sentencing or on direct appeal. By failing to challenge it then, Defendant waived his rights and must now change residence. No word on whether Bonnie enjoyed the flowers or intends to get more serious.