State v. Talty

{¶ 1} Appellant, Sean Talty, challenges the imposition of a condition of community control that ordered him to make “all reasonable efforts to avoid conceiving another child” during his five-year probationary period. Because we hold that the antiprocreation order is overbroad, see State v. Jones (1990), 49 Ohio St.3d 51, 52, 550 N.E.2d 469, we vacate that portion of the trial court’s sentencing order.

I

{¶ 2} On February 27, 2002, the Medina County Grand Jury indicted Talty on two counts of nonsupport in violation of R.C. 2919.21(A)(2) or (B), a fifth-degree felony. After initially pleading not guilty, Talty changed his plea to no contest. The trial court accepted Talty no-contest plea and found him guilty of both counts of nonsupport in violation of R.C. 2919.21(B).

{¶ 3} Prior to sentencing, the trial court ordered each party to brief “whether or not the Court can lawfully order that, as a condition of his supervision by the Adult Probation Department, the defendant may not impregnate a woman while under supervision.” The American Civil Liberties Union of Ohio Foundation filed a motion for leave to file an amicus brief, which the trial court granted. The parties and the ACLU thereafter filed briefs on the constitutionality of an antiprocreation sanction.

{¶ 4} In a journal entry dated September 6, 2002, the trial court sentenced Talty to community control for five years under nonresidential sanctions in the form of the general supervision and control of the Adult Probation Department. As a condition of that community control, the trial court ordered Talty to “make all reasonable efforts to avoid conceiving another child.” The court additionally stated, “What those efforts are are up to [Talty], that is not for me to say; I am not mandating what he does, only that he has to make reasonable efforts to do so.”

{¶ 5} Talty appealed the antiprocreation portion of the trial court’s sentencing order to the Ninth District Court of Appeals, asserting that it violated his fundamental right to procreation under the Ohio and United States Constitutions. The court of appeals concluded that the reasonableness test enunciated in State v. Jones, 49 Ohio St.3d at 52-53, 550 N.E.2d 469 — rather than a heightened level of scrutiny that traditionally applies in eases where a fundamental right is implicated — governed the validity of the community-control sanction.

{¶ 6} Having framed the issue as whether the antiprocreation condition satisfied the Jones test, the court of appeals held that the order was constitutional. In so holding, the court reasoned that the condition was reasonably related to the three objectives underlying the former probation statute: the rehabilitation of the defendant, the administration of justice, and the prevention of future criminality. Former R.C. 2951.02(C), 1983 Am.Sub.S.B. No. 210, 140 Ohio Laws, Part I, 604. Accordingly, the court of appeals held that the condition was constitutional and affirmed the judgment of the trial court.

{¶ 7} The cause is before this court upon our acceptance of a discretionary appeal. 100 Ohio St.3d 1469, 2003-Ohio-5772, 798 N.E.2d 405.

II

{¶ 8} This appeal requires us to consider the validity of a community-control sanction that ordered a defendant to “make all reasonable efforts to avoid conceiving another child” during a five-year probationary period. It is undisputed that the right to procreate is considered fundamental under the United States Constitution, see Skinner v. Oklahoma (1942), 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655, and that the trial court’s order in this case infringes that right. The issue on appeal is whether that infringement is permissible when imposed upon a probationer who has been convicted of nonsupport.

{¶ 9} Talty challenges the antiprocreation condition on both constitutional and nonconstitutional grounds. Both parties agree that the nonconstitutional aspect of Talty’s challenge is governed by State v. Jones, 49 Ohio St.3d at 52-53, 550 N.E.2d 469. The parties disagree, however, whether his constitutional challenge should be governed by a strict-scrutiny analysis. It is well settled that this court will not reach constitutional issues unless absolutely necessary. In re Miller (1992), 63 Ohio St.3d 99, 110, 585 N.E.2d 396; Hall China Co. v. Pub. Util. Comm. (1977), 50 Ohio St.2d 206, 210, 4 O.O.3d 390, 364 N.E.2d 852. To determine the necessity of a constitutional analysis, therefore, we must first decide whether Talty’s nonconstitutional arguments are dispositive. We thus turn to the principles that govern the nonconstitutional validity of a community-control sanction.

A

{¶ 10} R.C. 2929.15(A)(1) governs the authority of the trial court to impose conditions of community control. That section provides that when sentencing an offender for a felony, the trial court may impose one or more community sanctions, including residential, nonresidential, and financial sanctions, and any other conditions that it considers “appropriate.” The General Assembly has thus granted broad discretion to trial courts in imposing community-control sanctions. We review the trial court’s imposition of community-control sanctions under an abuse-of-discretion standard. Lakewood v. Hartman (1999), 86 Ohio St.3d 275, 714 N.E.2d 902 (reviewing a probation condition under an abuse-of-discretion standard).

{¶ 11} Nevertheless, a trial court’s discretion in imposing probationary conditions is not limitless. Jones, 49 Ohio St.3d at 52, 550 N.E.2d 469. In Jones, we set forth the standard by which courts determine whether a trial court exceeds those limits. The issue in Jones was whether a trial court may impose a probation condition that required an offender to “have no association or communication, direct or indirect, with anyone under the age of eighteen (18) years not a member of his immediate family.” Id. at 52, 550 N.E.2d 469. We did not decide, however, whether the condition was constitutionally permissible. Instead, we concluded that the order “should reasonably be interpreted as meaning an illicit, or potentially unlawful association or communication.” Id. at 55, 550 N.E.2d 469. Because the Constitution does not confer a right to speech or association for illegal purposes, see Chicago v. Morales (1999), 527 U.S. 41, 53, 119 S.Ct. 1849, 144 L.Ed.2d 67, our opinion in Jones thus addressed only a nonconstitutional challenge to the condition.

{¶ 12} Having so limited our analysis in Jones, we set forth the test for determining whether a condition reasonably relates to the three probationary goals — as reflected in former R.C. 2951.02(C) — of “doing justice, rehabilitating the offender, and insuring good behavior.” 140 Ohio Laws, Part I, at 604. We stated that courts must “consider whether the condition (1) is reasonably related to rehabilitating the offender, (2) has some relationship to the crime of which the offender was convicted, and (3) relates to conduct which is criminal or reasonably related to future criminality and serves the statutory ends of probation.” Jones, 49 Ohio St.3d at 53, 550 N.E.2d 469.

{¶ 13} In addition to considering whether a condition relates to these statutory goals, we observed that probation conditions “cannot be overly broad so as to unnecessarily impinge upon the probationer’s liberty.” Id. at 52, 550 N.E.2d 469. This proposition, although having roots in Ohio case law, see State v. Maynard (1988), 47 Ohio App.3d 76, 77, 547 N.E.2d 409, has been recognized and applied in other jurisdictions. See, e.g., Hughes v. State (Fla.App.1996), 667 So.2d 910, 912 (asserting that the trial court may not impose conditions of probation that are “overbroad and can be violated unintentionally”); Williams v. State (Fla.App. 1995), 661 So.2d 59, 61 (stating that the trial court may not “impose conditions of probation which are overbroad”); State v. Friberg (Minn.1989), 435 N.W.2d 509, 515 (noting that probation not only must be reasonably related to the purposes of sentencing, but must not be “unduly restrictive of the probationer’s liberty or autonomy”).

{¶ 14} The requirement that a condition may not be overbroad is connected to the reasonableness of a condition. See Turner v. Safley (1987), 482 U.S. 78, 90-91, 107 S.Ct. 2254, 96 L.Ed.2d 64. The United States Supreme Court has explained — albeit in a constitutional context — that the availability of ready alternatives to a regulation is evidence that the regulation is unreasonable:

{¶ 15} “[T]he absence of ready alternatives is evidence of the reasonableness of a prison regulation. By the same token, the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an ‘exaggerated response’ to prison concerns. This is not a ‘least restrictive alternative’ test: prison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant’s constitutional complaint. But if an inmate claimant can point to an alternative that fully accommodates the prisoner’s rights at de minimis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard.” (Citations omitted.) Id.

{¶ 16} Thus, Jones stands for the proposition that probation conditions must be reasonably related to the statutory ends of probation and must not be overbroad. Because community control is the functional equivalent of probation, this proposition applies with equal force to community-control sanctions. With the passage of Am.Sub.S.B. No. 2 in 1995, community control replaced probation as a possible sentence under Ohio’s felony sentencing law. Cleveland Bar Assn. v. Cleary (2001), 93 Ohio St.3d 191, 192, 754 N.E.2d 235, fn. 1; compare R.C. 2929.15 with former R.C. 2951.02. The community-control statute, despite changing the manner in which probation was administered, did not change its underlying goals of rehabilitation, administering justice, and ensuring good behavior — notwithstanding the lack of explicit language in the community-control statute to that effect. Consequently, we see no meaningful distinction between community control and probation for purposes of reviewing the reasonableness of their conditions.

{¶ 17} With these principles in mind, we turn to the instant case.

B

{¶ 18} Talty asserts that his community-control order is overbroad because there was no opportunity to have the antiprocreation condition lifted if he became current on his child-support payments. The government counters that other states have applied a test similar to Jones and upheld “virtually identical” conditions. Specifically, the state points to State v. Oakley (2001), 245 Wis.2d 447, 629 N.W.2d 200, in which the Wisconsin Supreme Court upheld an antiprocreation condition imposed upon a father who had been convicted of intentionally refusing to pay child support.

{¶ 19} Significantly, however, the antiprocreation condition in Oakley included the stipulation that the court would terminate the condition if the defendant could prove to the court that he had supported his children. The Wisconsin Supreme Court considered this portion of the order critical, stating 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.” Id. at 473, 629 N.W.2d 200.

{¶ 20} Unlike the facts in Oakley, the trial court in the instant case did not allow for suspending the procreation ban if Talty fulfilled his child-support obligations. Indeed, the trial court cited Talty’s rehabilitation and the avoidance of future violations as the reasons for imposing the condition. In view of these objects, however, the antiprocreation condition is, by any objective measure, overbroad; it restricts Talty’s right to procreate without providing a mechanism by which the prohibition can be lifted if the relevant conduct should change.

{¶ 21} Although we do not determine whether a mechanism that allowed the antiprocreation condition to be lifted would have rendered the condition valid under Jones, such a mechanism would have been, at the very least, an easy alternative that would have better accommodated Talty’s procreation rights at de minimis costs to the legitimate probationary interests of rehabilitation and avoiding future criminality. See Turner, 482 U.S. at 90, 107 S.Ct. 2254, 96 L.Ed.2d 64. Nor can the condition be considered valid merely because the trial court could modify the order if Talty became current on his child-support payments. Our review of a condition of community control is limited, as it must be, to what the sentencing order says and not what a trial court might later modify it to say.

{¶ 22} Further, we reject the argument that the antiprocreation order is valid because Talty could have been incarcerated but for the trial judge’s “act of grace” and that, if incarcerated, he would have been denied conjugal visits. Although it is true that probationers, like incarcerated persons, do not enjoy the absolute liberty to which every citizen is entitled, the United States Supreme Court has rejected the “act of grace” doctrine. See Gagnon v. Scarpelli (1973), 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656, fn. 4 (“a probationer can no longer be denied due process, in reliance on the dictum in [a prior case] that probation is an ‘act of grace’ ”). Thus, the fact that the state might have incarcerated a defendant does not, in itself, justify a lesser intrusion of his or her rights. See United States v. Tolla (C.A.2, 1986), 781 F.2d 29, 33; United States v. Pastore (C.A.2, 1976), 537 F.2d 675, 681; see, also, Griffin v. Wisconsin (1987), 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (“A probationer’s home, like anyone else’s, is protected by the Fourth Amendment’s requirement that searches be ‘reasonable’ ”).

{¶ 23} Our rejection of the “act of grace” theory is predicated on the undisputed proposition that infringements of constitutional rights must be tailored to specific government interests, and these interests may differ depending on whether the defendant is incarcerated or whether the defendant is sentenced to community control. Thus, a prisoner who is convicted of a crime wholly unrelated to procreation (say, burglary) may nonetheless be denied conjugal visits — arguably an infringement of the right to procreate — because, for example, the regulation is reasonably related to the legitimate government interest of maintaining the security of the prison. See, generally, Hernandez v. Coughlin (C.A.2, 1994), 18 F.3d 133, 137; Goodwin v. Turner (C.A.8, 1990), 908 F.2d 1395, 1398; Goodwin v. Turner (W.D.Mo.1988), 702 F.Supp. 1452, 1454. For the same crime (burglary), however, a probationer may not be denied the right to procreate on the basis of the same government interest — maintaining the security of a prison — because the probationer is not in prison. It follows, therefore, that a legitimate penological interest may be different from a legitimate probationary interest, thus rendering unsound the notion that the government may withhold from a probationer any right that it could withhold from a prisoner.

{¶ 24} Finally, a decision that upheld a condition on an “act of grace” theory would be incompatible with the three-part test that we adopted in Jones, 49 Ohio St.3d at 53, 550 N.E.2d 469. For if a trial judge could deny to a probationer any right that a prison official could deny to an inmate, then a condition of community control need not be related to the rehabilitation of the defendant, the administration of justice, or the prevention of future criminality. Id. at 53, 550 N.E.2d 469. Rather, the condition need only infringe the rights of a probationer as much as or less than a prison regulation may infringe those of an inmate. This proposition, if not implicitly rejected in Jones, was expressly rejected in Gagnon, 411 U.S. at 782, 93 S.Ct. 1756, 36 L.Ed.2d 656, fn. 4. Hence, in addition to the reality that the government has different interests in imposing community-control sanctions than it does in administering prisons — and thus probationers may retain certain liberties that inmates do not — we reject the “act of grace” doctrine as being contrary to our precedent.

Ill

{¶ 25} For the foregoing reasons, we hold that the antiprocreation order is overbroad under Jones, 49 Ohio St.3d at 52, 550 N.E.2d 469, and vacate that portion of the trial court’s sentencing order. Given our disposition, we need not address Talty’s constitutional and remaining nonconstitutional challenges to the antiprocreation condition. Accordingly, we reverse the judgment of the court of appeals and remand the cause to the trial court for resentencing.

Judgment reversed.

Resnick, F.E. Sweeney, O’Connor and O’Donnell, JJ., concur.

Pfeifer and Lundberg Stratton, JJ., dissent.

. The court further ordered Talty to make regular payments of child support, to pay $150 per week on arrearages, to obtain a GED within five years, and to make reasonable efforts to remain employed on a full-time basis.

. Applying the three-part test in Jones, we upheld the condition prohibiting illegal communication or association with anyone younger than 18.