State v. Brandin L. McConochie ( 2020 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 22, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.
Appeal No. 2019AP2149-CR Cir. Ct. No. 2018CF168
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
BRANDIN L. MCCONOCHIE,
DEFENDANT-APPELLANT.
APPEAL from a judgment and an order of the circuit court for Green
Lake County: MARK T. SLATE, Judge. Affirmed.
¶1 REILLY, P.J.1 Brandin L. McConochie appeals from a judgment
convicting him of three counts of lewd and lascivious behavior, as a repeater, and
from an order denying his postconviction motion. McConochie argues a condition
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version.
No. 2019AP2149-CR
of probation prohibiting him from traveling within a finite area (where his victims
reside) is an unconstitutional infringement on his right to travel and associate. As
the court’s banishment of McConochie from the restricted area is narrowly drawn,
protects his victims and the public, and furthers McConochie’s rehabilitative needs,
we affirm.
Facts
¶2 McConochie pled no contest to three counts of lewd and lascivious
behavior as a repeater pursuant to a plea agreement; two counts of exposing genitals
with a hate crime enhancer were dismissed and read in. The charges stemmed from
three incidents over two days in which McConochie pulled his vehicle alongside
Amish buggies and exposed his genitals to the occupants within. Police were led to
McConochie via his GPS ankle bracelet, which McConochie was required to wear
as a result of three prior convictions for second-degree sexual assault of a child, a
previous conviction for exposing genitals to a child, and two convictions for felony
bail jumping. McConochie, who was thirty-two years old, had spent most of his
twenties in prison and committed the present crimes within a relatively short time
after being released.2
¶3 The plea agreement included a joint sentencing recommendation of
two years’ probation, sex offender treatment, and no contact with the victims—the
Amish community. The court adopted the parties’ joint recommendation but added
a condition that McConochie could not enter a clearly delineated area where the
2
McConochie was on extended supervision at the time of these crimes, was subsequently
revoked, and is subject to lifetime GPS monitoring.
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No. 2019AP2149-CR
Amish live.3 The court found that McConochie’s crimes were “clearly targeted at
Amish people, who live in that area,” rather than targeting any specific Amish
individual. The court considered McConochie’s need to be in the area before setting
the boundaries. At sentencing, McConochie only objected to the banishment area
on the grounds that he would not be able to visit his father’s grave. The court
acknowledged the restriction would prevent McConochie from visiting his father’s
grave for the two-year period of probation.
¶4 McConochie filed a postconviction motion alleging the banishment
was an unconstitutional violation of his right to travel and associate. In addition to
the inability to visit his father’s grave, McConochie argued that his mother was
going to will a home to him that was located within the banishment area and he
wanted to eventually live in it. McConochie also told the court that his stepfather
had a home in the banishment area that he could live in. The court considered
McConochie’s future living arrangements to be “speculative” and denied the
motion.4 McConochie appeals.
Banishment as a Condition of Probation
¶5 “Sentencing courts have wide discretion and may impose any
conditions of probation or supervision that appear to be reasonable and appropriate.”
State v. Stewart, 2006 WI App 67, ¶11, 291 Wis. 2d 480, 713 N.W.2d 165. We
review banishment conditions under the erroneous exercise of discretion standard
3
The circuit court indicated that the restricted area was north of Highway 33, which is in
Columbia County; east of Highway 22, which is in Columbia and Marquette counties; west of
Highway 73, which is in Green Lake and Columbia counties; and south of Highways H and BH
from Highway 73 to Highway 22, which extends from Green Lake County to Marquette County.
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The circuit court clarified at the hearing that McConochie was allowed to travel on the
roadways the court mentioned when it drew up the restricted area, but he could not go beyond those
roads into the restricted area.
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No. 2019AP2149-CR
to determine their validity and reasonableness measured by how well they serve the
objectives of rehabilitation and protection of the state and community interest. Id.“The conditions may impinge upon constitutional rights as long as they are not
overly broad and are reasonably related to the person’s rehabilitation.” Id., ¶12.
“Convicted felons do not enjoy the same degree of liberty as those individuals who
have not been convicted of a crime.” Id. (citing State v. Oakley, 2001 WI 103, ¶17,
245 Wis. 2d 447, 629 N.W.2d 200). We review whether a condition of probation
violates a defendant’s constitutional rights de novo. Stewart, 291 Wis. 2d 480, ¶12.
Limits placed on a defendant’s movement in a geographical location, while clearly
restricting a defendant’s rights to travel and associate, are not per se
unconstitutional.5 See id., ¶13; Predick v. O’Connor, 2003 WI App 46, ¶18, 260
Wis. 2d 323, 660 N.W.2d 1. We analyze each case “on its own facts, circumstances
and total atmosphere to determine whether the geographical restriction is narrowly
drawn.” Predick, 260 Wis. 2d 323, ¶18.
Analysis
¶6 The particular facts in this case clearly formed the basis for the circuit
court’s decision to impose a geographic restriction on McConochie. We accept the
circuit court’s finding that McConochie’s crimes were targeted at the Amish
community rather than any specific individual, and, accordingly, we conclude that
the area drawn by the circuit court was not broader than necessary to protect the
community and is reasonably related to McConochie’s rehabilitation.
5
The rights of travel and association are protected constitutional rights. City of
Milwaukee v. Burnette, 2001 WI App 258, ¶17, 248 Wis. 2d 820, 637 N.W.2d 447; Brandmiller
v. Arreola, 199 Wis. 2d 528, 537-39, 544 N.W.2d 894 (1996).
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No. 2019AP2149-CR
¶7 In support of his position that the banishment violates his
constitutional rights, McConochie cites to Stewart, where this court held that a
condition of probation banishing the defendant from the entire Richmond Township
in Walworth County was overly broad. Stewart, 291 Wis. 2d 480, ¶¶14, 16. There,
we explained that “[w]hile the geographical limitation certainly promotes the
purposes of protecting the victims in this case and rehabilitating Stewart, it is
broader than necessary to accomplish those purposes,” finding that the no-contact
provision “already offers protection to his victims.” Id., ¶¶16-17. We disagree that
the result in Stewart necessitates a reversal in this case. As the court explained in
Stewart, “the majority of Stewart’s inappropriate, criminal and threatening behavior
took place in and around his home. It was directed towards his wife, children and
neighbors and not the Richmond township community at large.” Id., ¶16 (footnote
omitted). In contrast, McConochie’s conduct in this case was in fact directed at an
entire community, not specific individuals or specific locations.
¶8 Here, the no-contact order with the Amish community alone is not a
sufficient protection for McConochie’s victims because, as the State explained, “the
crimes were opportunistic and targeted toward any unfortunate occupant of an
Amish buggy.” McConochie’s crimes took place along the roadway within the
Amish community as he came upon an Amish buggy, not at a specific location or
with specific individuals as in Stewart. A simple no-contact order would be
ineffective under the circumstances of McConochie’s crime. We agree with the
State that “[t]o permit McConochie to travel within the area of the Amish
community would be to set up the exact conditions allowing him to engage in
identical criminal conduct in the future.” See Predick, 260 Wis. 2d 323, ¶21
(explaining that the defendant’s banishment from Walworth County was
appropriate as “[a]n area smaller than the county would provide her with too many
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No. 2019AP2149-CR
opportunities to meet up with her victims”). The court noted, and we agree, that it
imposed the banishment for McConochie’s rehabilitation in its discretion so as to
ensure that he would not be in the area or community in which he engaged in his
lewd and lascivious behavior.
¶9 Further, we note that McConochie’s crimes were committed while he
was wearing a GPS ankle bracelet and on extended supervision, suggesting
McConochie’s inability to conform his conduct during extended supervision and a
need for a stronger deterrent of his criminal proclivities to aid his rehabilitation. See
id., ¶1 (noting the defendant’s “past utter disregard for less intrusive orders” as a
reason her “victims needed a ‘zone of protection’”).
¶10 We conclude the circuit court drew the restricted area as narrow as
possible to encompass the entire Amish community. McConochie argues that his
crimes did not take place outside Green Lake County, so the restricted area should
not extend beyond its borders. As we already addressed, McConochie’s crimes
were directed at the entire Amish community, and although his crimes took place in
Green Lake County, there is no indication that McConochie’s victimization of the
Amish community was directed only at residents of specific counties. As Deputy
Matthew Vande Kolk of the Green Lake County Sheriff’s Office testified, the
restricted area, which is mainly located in the southwest corner of Green Lake
County but spills over into two neighboring counties, “includes all active Amish
residences in Green Lake County” and “encompasses a good portion of the Amish
community in those [two neighboring] counties, as well.” McConochie’s crimes
took place within the confines of this area, and these boundaries were narrowly
drawn to serve its purpose.
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No. 2019AP2149-CR
¶11 The circuit court also considered McConochie’s need to be in the area.
At sentencing, the court adjusted the boundaries of the restricted area to allow
McConochie to visit his mother’s home. McConochie also told the court that he
would be unable to visit his father’s grave; the court considered this a cost of
agreeing to probation and told McConochie that he could reject probation if he did
not agree with the geographical restriction on his travel. McConochie did not reject
probation at sentencing. Later, in McConochie’s postconviction motion, he argued
that his mother had a home located within the banishment area, which was currently
being rented to someone else, and that his stepfather also had a home in the restricted
area that he could live in. Prior to McConochie being sentenced to prison, he was
residing with his mother in her home, not in either of these two residences. We
agree with the court’s reasonable assessment that the possible future living
arrangements are “speculative” and do not impact our analysis of whether the
restriction is overly broad and reasonably related to McConochie’s rehabilitation.
Conclusion
¶12 In summary, as the geographical restriction was narrowly drawn for
the protection of the public, was not overly broad, considered McConochie’s need
to be in the banishment area, and was reasonably related to McConochie’s
rehabilitation, it is not an unconstitutional restriction on McConochie’s right to
travel and associate. We affirm the decision of the circuit court.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
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