COURT OF APPEALS DECISION DATED AND RELEASED September 26, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1862-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JANE I. PECKHAM,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Dane County:
DANIEL R. MOESER, Judge. Reversed
and remanded.
Before Eich, C.J.,
Vergeront, J., and Robert D. Sundby, Reserve Judge.
PER
CURIAM. Jane Peckham appeals from an order denying
postconviction relief, entered subsequent to her conviction on multiple felony
and misdemeanor counts. Peckham
received prison sentences totaling twenty years and probation terms totaling
thirty-two years, commencing midway through her prison sentences. As a condition of probation the court
ordered that there be "no letters, no calls or communications of any type
to any court, division of corrections person, prosecutors or any of the
families of those groups of people without the written permission of her
probation agent." The issue is
whether that condition is an unconstitutional infringement on Peckham's
rights. Because we conclude that the
condition is overly broad in some respects, we reverse. We remand to allow the court to fashion a
condition that attains the same goal without violating Peckham's constitutional
rights.
The trial court may
impose any conditions of probation which appear to be reasonable and
appropriate. Section 973.09(1)(a), Stats.
The conditions of probation may restrict constitutional rights, but not
in an overly broad manner, nor in any way not reasonably related to the
defendant's rehabilitation. Edwards
v. State, 74 Wis.2d 79, 84-85, 246 N.W.2d 109, 111 (1976). Whether a condition satisfies this
constitutional test is a question of law which we decide without deference to
the trial court. State v. Miller,
175 Wis.2d 204, 208, 499 N.W.2d 215, 216 (Ct. App. 1993).
The trial court's
condition of probation is overly broad in two respects. First, it unduly restricts Peckham's right
of access to the courts. The trial
court stated that its intention was not "in any way to restrict Ms.
Peckham's rights to file grievances, to file lawsuits, to pursue any legal
remedy she feels that she has."
However, read literally, that is precisely what it does by requiring
permission from her probation agent to exercise those rights. Second, as the State concedes, the court
imposed an impractical restriction on communication with Department of
Corrections personnel. Peckham will be
in prison while she serves the first part of her probation period. During that time, the condition, read
literally, prohibits what will be inevitable and unavoidable daily contact with
DOC employees.
The condition of
probation is otherwise reasonably related to Peckham's rehabilitation and not
overly broad. Peckham has an undisputed
record of harassing people involved in prosecuting her or supervising and
regulating her behavior during and subsequent to her prosecutions. She has, in fact, been criminally prosecuted
and convicted for such behavior.
Peckham nevertheless contends that the condition is unreasonable because
it does not relate to her current convictions on various theft and forgery
charges. However, preventing her from
harassing public officials is reasonably related to previous criminal conduct
and to her rehabilitation. That is all
that is necessary. Miller,
175 Wis.2d at 210, 499 N.W.2d at 217.
On remand, the trial
court may refashion the condition so that it is directed solely toward the
prevention of harassing behavior. The
court may not impose a prior approval requirement, for reasons other than
harassment, on her right of access to courts or other legal forums to pursue
claims. Nor can the court restrict
reasonable and necessary communications with DOC personnel during her
incarceration.
By the Court.—Order
reversed and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.