State v. Ramirez

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 47770
STATE OF IDAHO, )
) Filed: June 15, 2021
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
RUFINO ANGELO RAMIREZ, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)
Appeal from the District Court of the First Judicial District, State of Idaho,
Kootenai County. Hon. Scott L. Wayman, District Judge.
Order denying motion to modify terms of probation, affirmed.
Eric D. Fredericksen, State Appellate Public Defender; Andrea W. Reynolds,
Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Andrew V. Wake, Deputy Attorney
General, Boise, for respondent.
________________________________________________
LORELLO, Judge
Rufino Angelo Ramirez appeals from the district court’s order denying his motion to
modify the terms of his probation. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Ramirez was charged with lewd conduct with a minor under sixteen for allegedly touching
his granddaughter’s genitals over her clothing while in a vehicle delivering newspapers. The
granddaughter disclosed this incident during an interview with officers investigating allegations
that Ramirez had similarly abused her during a later trip to Arizona. Ramirez denied abusing his
granddaughter while delivering newspapers and claimed that he was asleep and dreaming during
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the Arizona incident. Pursuant to a plea agreement, Ramirez entered an Alford 1 plea to an amended
charge of injury to child. In exchange for Ramirez’s plea, the State agreed to recommend probation
if a psychosexual evaluation and polygraph examination indicated he posed a low recidivism risk.
The testing indicated Ramirez presented a below-average risk of sexual recidivism, but the
psychosexual evaluator cautioned that Ramirez was not forthcoming and candid during the
evaluation process.
The district court sentenced Ramirez to a suspended prison term and placed him on
probation for two years. The district court ordered Ramirez to be supervised as a sex offender and
to “comply with all special sex[-]offender terms of probation requested by his probation officer.”
Weeks later, Ramirez moved to modify the terms of his probation. The motion sought, among
other things, to eliminate a probation condition that prohibited him from “using the internet” or
having an internet-enabled phone. The district court denied Ramirez’s request to remove the
internet prohibition, concluding that it was “reasonable and appropriate” considering the nature of
his crime and sex-offender supervision. Ramirez appeals.
II.
STANDARD OF REVIEW
We review a trial court’s decision on a motion to modify the terms and conditions of
probation for an abuse of discretion. See State v. Gibbs, 162 Idaho 782, 789, 405 P.3d 567, 574
(2017) (holding that a trial court’s decision to extend a probation term is reviewed for an abuse of
discretion). When a trial court’s discretionary decision is reviewed on appeal, the appellate court
conducts a multi-tiered inquiry to determine whether the lower court: (1) correctly perceived the
issue as one of discretion; (2) acted within the boundaries of such discretion; (3) acted consistently
with any legal standards applicable to the specific choices before it; and (4) reached its decision
by an exercise of reason. State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018).
III.
ANALYSIS
1
See North Carolina v. Alford, 400 U.S. 25 (1970).
2
Ramirez argues that the district court erred by denying his request to modify the term of
his probation imposing a blanket prohibition against internet access. Ramirez contends the
condition violates the First Amendment and has no reasonable relation to the goals of probation.
The State responds that the record shows the probation condition is reasonably related to Ramirez’s
rehabilitation and is, therefore, lawful. We hold that Ramirez has failed to show that the district
court abused its discretion by denying his motion to modify the terms of his probation.
A. First Amendment
Ramirez first argues that the probation condition prohibiting him from accessing the
internet violates the First Amendment under Packingham v. North Carolina, ___ U.S. ___, 137
S. Ct. 1730 (2017). In Packingham, the United States Supreme Court held that a North Carolina
statute which prohibited registered sex offenders from accessing certain social networking
websites violated the First Amendment. The Court held that the North Carolina statute was
unconstitutionally overbroad because “to foreclose access to social media altogether is to prevent
the user from engaging in the legitimate exercise of First Amendment rights.” Id. at ___, ___ U.S.
at ___, 137 S. Ct. at 1737. In holding as much, the Court reasoned that the internet, and “social
media in particular,” are “the most important places . . . for the exchange of views.” Id. at ___,
___ U.S. at ___, 137 S. Ct. at 1735.
Packingham does not resolve Ramirez’s First Amendment claim for two reasons. First,
Packingham focused on the validity of a criminal statute applicable to all registered sex offenders,
including those who had completed their sentences and were not serving some form of supervised
release. Thus, the Court was considering the constitutionality of a statute, not the constitutionality
of a probationary term. As such, one of the majority’s central concerns in Packingham--that
“persons who have completed their sentence” fell within the ambit of the North Carolina
statute--does not apply to a probationer. Id. (stating that it “is unsettling to suggest that only a
limited set of websites can be used even by persons who have completed their sentence”).
Consequently, Packingham does not apply to Ramirez’s constitutional challenge to his probation
condition. 2
2
Existing United States Supreme Court precedent suggests that review of probation
conditions that burden constitutional rights is not more searching than review aimed at determining
whether the condition reasonably relates to the goals of probation. See Turner v. Safley, 482 U.S.
3Second, even if Packingham recognizes a right to access the internet under the First
Amendment, that does not mean a probation condition restricting that right is unconstitutional.
Indeed, the Court in Packingham “assumed that the First Amendment permits a State to enact
specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often
presages a sexual crime, like contacting a minor or using a website to gather information about a
minor,” recognizing that “specific laws of that type must be the State’s first resort to ward off the
serious harm that sexual crimes inflict.” Id. at ___, ___ U.S. at ___, 137 S. Ct. at 1737. If a statute
could be narrowly tailored in this way and still comport with the First Amendment, so too can a
probation condition. Moreover, it is well-settled that restrictions that would infringe the
constitutional rights of ordinary citizens are not per se impermissible in the probation context. See
21A AM. JUR. 2d Criminal Law § 822 (2020). For example, the Idaho Supreme Court has held
that probation conditions requiring submission to warrantless searches do not constitute an
unreasonable invasion of a probationer’s Fourth Amendment rights. See State v. Gawron, 112
Idaho 841, 843, 736 P.2d 1295, 1297 (1987). Thus, the critical question in this case is not whether
a probation condition limiting Ramirez’s internet access burdens his First Amendment rights but,
rather, whether the condition to which he is subject reasonably relates to the goals of his probation.
We address this question below.
B. Goals of Probation
Ramirez argues that the denial of his motion to modify his probation is an abuse of
discretion because the condition limiting his internet access lacks a reasonable relationship to the
goals of his probation. Consequently, Ramirez contends the district court failed to act consistently
with applicable legal standards in denying his motion to modify probation terms. As previously
noted, the State responds that the record shows the probation condition is reasonably related to
Ramirez’s rehabilitation.
78, 89 (1987) (rejecting prisoners’ argument that prison regulation that burdened the prisoners’
fundamental rights should be subject to strict scrutiny, asking instead whether the regulation that
burdened the prisoners’ fundamental rights was “reasonably related” to “legitimate penological
interests”); Pell v. Procunier, 417 U.S. 817, 822 (1974) (holding that “a prison inmate retains those
First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate
penological objectives of the corrections system”).
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Trial courts have broad discretion to create necessary and appropriate probation conditions.
I.C. § 19-2601(2); State v. Mummert, 98 Idaho 452, 454, 566 P.2d 1110, 1112 (1977). These terms
and conditions may include restrictions on important liberties, such as the right to travel, to change
jobs or residences, or even to marry. State v. Cheatham, 159 Idaho 856, 858, 367 P.3d 251, 253
(Ct. App. 2016). A trial court’s discretion in this context, however, is not boundless. A valid
condition of probation must be reasonably related to the rehabilitative and public safety goals of
probation. Id. Whether the terms and conditions of a defendant’s probation reasonably relate to
the goals of probation and whether constitutional requirements have been satisfied are legal
questions. Id.As a condition of his probation, Ramirez agreed to “comply with all special sex[-]offender
terms of probation requested by his probation officer.” During the hearing on Ramirez’s motion
to modify the terms of his probation, Ramirez testified that sometime after sentencing he learned
that, as a condition of his supervision as a sex offender, he was “not allowed to use the internet”
or have “a phone that can get the internet.” Ramirez further testified that he wanted internet access
to find the location of homes while delivering newspapers. Ramirez challenged the condition as
lacking a reasonable relationship to the goals of his probation because the State had not alleged
facts showing that the crime he was on probation for had a connection to internet use. The district
court rejected this argument, concluding that prohibiting Ramirez from accessing the internet was
“reasonable and appropriate in light of the nature of the charge” and his supervision as a sex
offender. Ramirez faults the district court for upholding the condition without considering the
particular facts of his case.
Initially, we note that Ramirez did not present evidence below establishing the actual
language of the probation condition he challenges. Instead, the only evidence presented relating
to the content of the condition was Ramirez’s testimony that he was not “able to use the internet
or have a phone . . . that can get the internet.” Although Ramirez’s testimony illuminates certain
conduct the condition prohibits, it provides little insight into the actual language of his probation
condition. The conduct a condition affects is not the sole criterion for evaluating the condition’s
reasonableness. The precise scope of a condition, including any applicable exceptions, are
important factors to consider. Subtle variations in the actual language of a condition can
significantly affect its scope. For example, a condition prohibiting a defendant from “having
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access” to the internet is broader than one prohibiting “use” of the internet. Consequently, the
absence of the actual language of Ramirez’s probation condition renders meaningful appellate
review difficult. However, the district court apparently interpreted the probation condition at issue
to be a blanket prohibition against Ramirez accessing the internet that his probation officer had
discretion to modify. We will, therefore, review the condition as such.
According to Ramirez, there is no connection between the internet and the criminal offense
charged in this case, rendering the probation condition prohibiting him from accessing the internet
“patently unreasonable.” Ramirez’s argument is unpersuasive. Although the criminal conduct
charged in this case lacked a direct relationship with the internet, other evidence in the record of
Ramirez’s history and characteristics support restricting his internet access. First, Ramirez’s
presentence investigation report (which the district court reviewed extensively prior to sentencing)
contained allegations of recent sexual abuse that Ramirez perpetrated against his granddaughter
while watching a movie on his phone. This Court has previously upheld a probation condition
limiting computer access where, as here, the defendant used such technology while engaging in
sexually deviant conduct with minors. See State v. Wardle, 137 Idaho 808, 810, 53 P.3d 1227,
1229 (Ct. App. 2002). Even though Ramirez had not been charged criminally for this alleged
conduct, the district court could consider it when fashioning Ramirez’s probation conditions. See
State v. Moore, 131 Idaho 814, 824, 965 P.2d 174, 184 (1998) (observing that a defendant’s
sentence was reasonable based, in part, on his history of uncharged sexual abuse of minors).
In addition to allegations of Ramirez using the internet while sexually abusing his
granddaughter, there is more direct evidence that limiting Ramirez’s internet access will further
his rehabilitation. As previously stated, the goal of probation is to foster the defendant’s
rehabilitation while protecting society. Wardle, 137 Idaho at 810, 53 P.3d at 1229. Restricting a
sex-offender’s computer or internet access can aid rehabilitation--even if the offender is not
convicted of crimes involving the internet. See State v. Heffern, 130 Idaho 946, 949, 950 P.2d
1285, 1288 (Ct. App. 1997) (observing that, with due caution, a trial court may consider a
defendant’s alleged criminal activity for which no charges have been filed at sentencing). Ramirez
admits viewing pornographic material on the internet, and his psychosexual evaluation expressly
recommended that he “refrain from sexually explicit environments [and] viewing pornography”
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while on probation. Based on the foregoing, we cannot say that restricting Ramirez’s internet use
lacks any reasonable relationship to the goals of his probation.
Ramirez relies on cases from other jurisdictions concluding that, in certain circumstances,
banning a defendant from accessing the internet during a period of supervised release is
impermissible. However, these cases are materially different for one of two reasons. First, some
of the cases involve either indeterminate or lengthier restrictions than the two-year prohibition at
issue here. See United States v. Eaglin, 913 F.3d 88, 97 (2d Cir. 2019) (eleven-year prohibition);
United States v. Perazza-Mercado, 553 F.3d 65, 66 (1st Cir. 2009) (fifteen-year restriction); United
States v. Holm, 326 F.3d 872, 874 (7th Cir. 2003) (length of supervised release not specified).
Second, other cases that Ramirez cites do not involve allegations of sexually deviant conduct with
minors occurring concurrently with internet use. See United States v. LaCoste, 821 F.3d 1187,
1189 (9th Cir. 2016); United States v. Wiedower, 634 F.3d 490, 492 (8th Cir. 2011); United States
v. Freeman, 316 F.3d 386, 389 (3d Cir. 2003).
Also, we note that some cases have upheld supervision conditions that restrict a defendant’s
internet access. See, e.g., United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010) (affirming
a complete, one-year internet prohibition after the defendant violated lesser supervision
restrictions); United States v. Johnson, 446 F.3d 272, 274, 283 (2d Cir. 2006) (upholding an
unconditional three-year internet ban for a sex offender); United States v. Paul, 274 F.3d 155, 160,
170 (5th Cir. 2001) (upholding an unconditional three-year term of supervised release prohibiting
the defendant from using “computers, the Internet . . . or any item capable of producing a visual
image” where the defendant was convicted of possessing child pornography). The two-year
probation restriction on Ramirez’s internet access is of similar duration and apparent scope as the
restrictions upheld in other jurisdictions.
Ramirez further contends that the district court erred by failing to consider “less restrictive
alternatives,” resulting in the imposition of an impermissibly overbroad, internet-access
prohibition. According to Ramirez, a narrow condition restricting his internet use for certain
purposes and enforced by monitoring software and unannounced inspections is sufficient. This
argument fails. First, the district court addressed the concerns Ramirez actually raised below
relating to the restrictions on his internet use. More specifically, Ramirez asserted that internet
access would aid him in navigating his newspaper delivery route. In response, the district court
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observed that Ramirez could use other means, like GPS devices, to assist him while delivering
newspapers. Ramirez articulated no other manner in which his restricted internet access negatively
affected him. Second, the allegations regarding Ramirez’s use of technology while abusing his
granddaughter in Arizona, the duration of his probation, and his lack of candor and attempts to
minimize his own responsibility during his psychosexual evaluation support a broad internet
restriction. Ramirez has failed to show that he is subject to an overbroad probation condition.
Because it was within the district court’s discretion to conclude, based on the information
available to it, that a condition prohibiting Ramirez from accessing the internet was reasonably
related to the goals of his probation, Ramirez has failed to show that the district court abused its
discretion by denying his motion to modify the terms of his probation.
IV.
CONCLUSION
Ramirez has failed to show the district court abused its discretion by declining to modify
the term of his probation prohibiting him from accessing the internet. Accordingly, the order
denying Ramirez’s motion to modify the terms of his probation is affirmed.
Chief Judge HUSKEY and Judge BRAILSFORD, CONCUR.
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