may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Talitha Syntyche Simpson,
Filed February 11, 1996
Blue Earth County District Court
File No. K4941654
Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)
Ross Arneson, Blue Earth County Attorney, 410 South Fifth Street, P.O. Box 347, Mankato, MN 56002 (for Respondent)
Jodi Sharrow, Certified Student Attorney, Bradford Colbert, Assistant State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for Appellant)
Considered and decided by Peterson, Presiding Judge, Willis, Judge, and Forsberg, Judge.[*]
U N P U B L I S H E D O P I N I O N
In this sentencing appeal, Talitha Simpson argues the district court erred in requiring as a condition of probation that she have no contact with the man who is the father of her two children and the child she was expecting. We affirm.
In 1994, appellant Talitha Simpson was charged with perjury; two counts of check forgery; two counts of offering a forged check; three counts of forgery; and four counts of gross misdemeanor theft. Simpson pleaded guilty to perjury. The district court stayed imposition of sentence and placed Simpson on probation for five years on condition that she pay restitution; serve four days in jail; participate in all treatment programs designated by probation; follow all rules and regulations of probation; and not violate any laws.
At a probation violation hearing on June 12, 1996, Simpson admitted that she violated her probation by being convicted of two new felonies. The district court told Simpson that the purpose of probation was to change her way of life and then noted that Simpson was living with Ralph Griffen, who was on parole for aggravated robbery. The court told Simpson that living with people like Griffen would not help her to change her life.
Simpson pointed out that Griffen is the father of her children and the child she was expecting. The court recognized that fact and the fact that Griffen may have visitation privileges, but reiterated that Griffen was a convicted felon and that Simpson could not change her life if she continued to associate with people like him. When Simpson explained that Griffen was not involved with this offense and was away when it occurred, the court again stated that Simpson should not be dealing with criminals and that Griffen was a felon on parole.
The court then revoked the stay of imposition and imposed a sentence of one year and one day. The court stayed execution of the sentence on condition that Simpson (1) serve 45 days in jail concurrent to the 37 days of probationary jail time remaining on the new offenses; (2) have no contact with Ralph Griffen other than for visitation purposes; and (3) have no contact with other people involved in check schemes or anyone involved in Simpson's other offenses.
D E C I S I O N
Trial courts have great discretion in the imposition of a sentence and appellate courts cannot substitute their judgment for that of the trial court in the imposition of a sentence.
State v. Friberg, 435 N.W.2d 509, 515 (Minn. 1989).
The discretion of the trial court in establishing conditions of probation is reviewed carefully, however, when the conditions restrict fundamental rights.
Id. at 516.
The purpose of sentencing is to prevent future unlawful conduct by defendants and establish reasonable consequences for their unlawful conduct.
Id. The purpose of probation is to produce a law abiding person and to protect the public against continued criminal behavior. State v. Haynes, 423 N.W.2d 102, 104 (Minn. App. 1988).
Generally, conditions of probation must be reasonably related to the purposes of sentencing and must not be unduly restrictive of the probationer's liberty or autonomy. Conditions of probation may include restrictions upon employment or business activities, places the probationer may frequent and even people with whom the probationer may associate. Although they do not entirely give up their constitutional rights, the rights of probationers are properly "subject to limitations from which ordinary persons are free * * *."
Friberg, 435 N.W.2d at 515-16 (quoting United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir. 1975) (alteration in original) (citation omitted).
Probation conditions may seek to prevent reversion into a former crime-inducing lifestyle by barring contact with old haunts and associates, even though the activities may be legal.
United States v. Bolinger, 940 F.2d 478, 480 (9th. Cir. 1991).
Simpson contends that prohibiting her from having any contact with Griffen was an abuse of discretion because Griffen had no connection to her crime of conviction. Simpson argues that when prohibiting a probationer from having contact with another person, the court must ensure that the person bore a significant relationship to the probationer's criminal activity. We disagree.
The cases Simpson relies on to support this argument involved probationers whose contact with a spouse was restricted. See Dawson v. State, 894 P.2d 672, 680 , 681 & n.14 (Alaska Ct. App. 1995) (noting that courts had treated marital relationship differently than relationships with fiances or girlfriends and stating that prohibition on contact with spouse might be justified in circumstances showing "actual necessity and the lack of less restrictive alternatives" as long as court tailored a close fit between scope of condition and specific needs of case to avoid unnecessary intrusion on marital privacy). State v. Saxon, 886 P.2d 505, 506 (Or. Ct. App. 1994) (condition of probation prohibiting contact with spouse vacated when record did not show sentencing court considered whether there was less intrusive alternative). The cases Simpson cites do not apply here because Griffen is not Simpson's spouse.
Instead, cases in which probationers were ordered to have no contact with a fiance or boyfriend apply here. Courts have upheld conditions of probation prohibiting a probationer's contact with a fiance or boyfriend when the fiance or boyfriend was directly involved in the probationer's criminal activity. See, e.g., United States v. Bortels, 962 F.2d 558, 559-60 (6th Cir. 1992) (prohibition on contact with felons, including fiance, upheld when crimes of conviction arose out of Bortels's attempt to prevent fiance's arrest and sentencing court noted Bortels would not be in jail but for her association with fiance; her rehabilitation would be aided if she avoided further contact with him; and public safety would be served if she were not tempted to act impulsively to protect him again in future); People v. Celestine, 12 Cal. Rptr. 2d 179, 182 (Cal. Ct. App. 1992) (prohibition on contact with admitted cocaine users and suspected cocaine sellers, including girlfriend, upheld when crime of conviction was cocaine possession).
But courts also have upheld conditions of probation prohibiting a probationer's contact with a boyfriend when the boyfriend was not directly involved in the probationer's criminal activity. See State v. Davis, 687 P.2d 998, 999-1001 (Idaho Ct. App. 1984) (prohibition on contact with boyfriend upheld when crime of conviction was passing a forged check; boyfriend had extensive felony record; relationship with boyfriend was negative influence on probationer; sentencing court believed condition was "absolutely essential" to probationer's chances for rehabilitation; and sentencing court believed condition was not impossible to fulfill because probationer could make a choice not to see boyfriend).
We conclude that the district court did not abuse its discretion when it prohibited Simpson from having contact with Griffen. It is evident from the remarks the district court made at sentencing that Simpson was prohibited from having any contact with Griffen because the court concluded that, even if Griffen was not involved with Simpson's offenses, Simpson could not change her life if she continued to associate with him. These remarks show that the no-contact condition was reasonably related to the purposes of sentencing and probation because the condition was intended to prevent future unlawful conduct by Simpson and to help her rehabilitation.
Furthermore, the no-contact condition in this case was tailored to permit Griffen to exercise any visitation rights he may have with respect to Simpson's children. We therefore affirm the district court's decision.
[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.