This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1682

 

State of Minnesota,
Respondent,

vs.

John P. Murphy,
Appellant.

 

Filed July 11, 2006

Affirmed

Peterson, Judge

 

Ramsey County District Court

File No. K2-93-1209

 

John M. Stuart, State Public Defender, Cathryn Y. Middlebrook, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

            Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from an order denying his motion for resentencing under Minn. R. Crim. P. 27.03, subd. 9, appellant John Patrick Murphy argues that the district court abused its discretion in declining to remove a condition of probation imposed as part of his 1994 sentence for terroristic threats.  We affirm.

FACTS

            In April 1994, appellant pleaded guilty to ten counts of terroristic threats and one count of conspiracy to commit terroristic threats.  State v. Murphy, 545 N.W.2d 909, 912 (Minn. 1996).  Appellant admitted to allegations regarding offenses committed against at least 12 victims.  Id. at 913.  Appellant was sentenced to 96 months in prison and 450 months of probation.  Id. at 914.  As a condition of probation, appellant was ordered to serve his probation outside the states of Minnesota and Wisconsin; or, in the alternative, outside a 150-mile radius from the border of Minneapolis and St. Paul at the Mississippi River.  Id.

            In 1995, appellant challenged the geographical-restriction condition of his probation.  State v. Murphy, No. C3-94-1931, 1995 WL 2227643, at *2 (Minn. App. Apr. 18, 1995), review granted (Minn. June 29, 1995), aff’d, 545 N.W.2d 909 (Minn. 1996).  This court concluded that the provision of appellant’s sentence that requires him to serve his probation outside of Minnesota and Wisconsin does not constitute banishment.  Id. Upon further review, the supreme court declined to address the probation issue after concluding that the issue was speculative and not ripe for review because appellant was serving his prison sentence and had not been placed on probation.  Murphy, 545 N.W.2d at 918.

In September 1998, appellant was released on probation.  State v. Murphy, No. C0-99-1453, 2000 WL 272074, at *1 (Minn. App. Mar. 14, 2000), review denied (Minn. May 16, 2000).  In March 1999, appellant’s probation was revoked, and he was sentenced to 24 months in prison.    Id.  Appellant’s probation was revoked again in December 2000, and he was sentenced to 60 months in prison.  State v. Murphy, No. C5-02-1329, 2003 WL 1218495, at *1 (Minn. App. Mar. 18, 2003), review denied (Minn. June 17, 2003).

            Appellant was released from prison on probation in October 2004.  His supervising agents were unable to reach an agreement with a foreign state for out-of-state placement for appellant under Minn. Stat. § 243.16 (2004).  In April 2005, appellant filed a motion for resentencing, arguing that the district court should rescind the geographical-restriction conditions of his probation.  The district court denied appellant’s motion.  This appeal follows.

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).  “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.” Id.  The purposes of sentencing are “to prevent future unlawful conduct by defendants and establish reasonable consequences for their unlawful conduct.”  Id. at 516.  “Conditions of probation may include restrictions upon . . . places the probationer may frequent . . . .”  Id. at 515-16.  When considering the validity of probation conditions containing geographical exclusions, courts should consider “1) the purpose sought to be served by probation; 2) the extent to which constitutional rights enjoyed by law-abiding citizens should be accorded to probationers; and 3) the legitimate needs of law enforcement.”  Id. at 516. 

            The district court found that “[t]he purposes of the probation conditions [are] served by limiting [appellant’s] opportunity to commit similar crimes against the victims in this case and by protecting the victims from the likelihood of further repetitive behavior against them by [appellant]. . . .”  Appellant argues that because the condition of his probation excluding him from traveling within 150 miles of the Twin Cities does not meet the stated goals for the condition, the district court abused its discretion by failing to correct his sentence by excluding the condition.  Appellant concedes that “the generic concept of a geographical restriction may be appropriate here to advance both victim safety and appellant’s rehabilitation,” but he contends that the 150-mile-exclusion condition fails to further the goals of probation because it is overbroad and keeps him out of an area that is larger than needed to protect public safety and promote offender rehabilitation. 

             The purposes of probation are to “produce a law abiding citizen and at the same time to protect the public against continued criminal or antisocial behavior.”  State v. Haynes, 423 N.W.2d 102, 104 (Minn. App. 1988) (quotation and emphasis omitted).  In Haynes, this court affirmed a restriction prohibiting the defendant from coming within one and one-half miles of the drug house where he was arrested.  Id. at 103.  This court found that the restriction would allow the neighborhood residents to enjoy safe and stable lives and would help the defendant avoid the circumstances that led to his arrest.  Id. at 104. 

            The one-and-one-half-mile restriction that this court affirmed in Haynes was obviously much shorter than appellant’s 150-mile restriction.  But, unlike appellant’s circumstances, the circumstances in Haynes involved a single location that the defendant was required to avoid.  Appellant’s offenses involved numerous victims and were committed at numerous locations.  Consequently, the geographical restrictions of his probation needed to apply to numerous locations.  Under these circumstances, a geographical restriction that is described by a single long radius and includes all of the relevant locations is more practical than a restriction that requires appellant to remain some shorter distance away from numerous separate locations because a single radius simplifies the law-enforcement task of identifying the area from which appellant is excluded.

            Appellant argues that the large area from which he is excluded fails to meet the legitimate needs of law enforcement because the quantity of law-enforcement resources needed to monitor this large area far exceeds the benefit that the exclusion zone provides for his victims or for his rehabilitation.  But appellant does not identify any reason why law-enforcement officials would need to monitor the exclusion zone.  Appellant is prohibited from entering the zone; but that does not mean that law-enforcement officials must do anything to keep him from entering.  It means that if it is discovered that appellant has entered the zone, his probation may be revoked, and he may be returned to prison.  The possibility of being sent back to prison is intended to deter appellant from entering the restricted area and protect his victims by keeping him away from them.

            Appellant also argues that restricting him from entering such a large area was simply overkill because a much smaller area would have been sufficient to keep him from coming close enough to his victims or their homes to present an opportunity to re-offend.  The geographical restriction imposed as a condition of appellant’s probation is greater than other geographical restrictions that this court has affirmed.  As we have already discussed, one reason for the large area is that appellant must stay away from numerous locations.  The record does not indicate how small the restricted area could have been and still include all of the relevant locations, but, presumably, it could have been a circle with a radius shorter than 150 miles.  But the district court was not limited to imposing the minimum restriction necessary; the district court was limited to imposing conditions that are reasonably related to the purposes of sentencing and are not unduly restrictive of the probationer’s liberty or autonomy.  There is no bright line that indicates when a geographical restriction is not reasonably related to the purposes of sentencing.  It is true that the area from which appellant is restricted is large.  But it is also true that a person could travel by car from the perimeter of the restricted area to its center in less than three hours.  Therefore, in light of the goal of keeping some distance between appellant and his victims, we conclude that the geographical-restriction condition of appellant’s probation is reasonably related to the purposes of sentencing.

            Appellant also contends that the geographical restriction prevents him from traveling to see his wife, his children, and his elderly mother and to pay his respects at his father’s gravesite and worship at his church.  Appellant argues that the impact that the restriction has on his liberty to do these things is unjustified considering the minimal contribution that the restriction makes to the goals of sentencing.  But appellant concedes that a geographical restriction is appropriate to advance both victim safety and his rehabilitation, and he does not explain how the district court could impose a restriction that advances these goals without also restricting his liberty to do these things.[1]  Furthermore, the conditions of appellant’s probation permit him to travel within the restricted area with the permission of the district court and any supervising probation agent, and appellant does not claim that he has been denied permission to travel within the restricted area for any of these purposes or explain why the condition allowing him to obtain permission to travel in the restricted area does not prevent the geographical restriction from unduly limiting his liberty to do the things that he claims he is prevented from doing. 

            Finally, appellant argues that the fact that he waived his right to travel is insufficient, by itself, to validate a condition of probation that would not otherwise be permitted under Friberg.  But the district court did not determine that appellant’s waiver of his right to travel was sufficient, by itself, to validate the geographical-restriction condition of appellant’s probation; the district court addressed all three factors identified in Friberg and determined that the geographical restriction is valid because it is reasonably related to the purposes sought to be served by probation; appellant agreed to the condition and, thereby, knowingly and intelligently waived his constitutional right to travel within the restricted geographic areas; and the condition meets the legitimate needs of law enforcement. 

            Because the geographical-restriction condition is reasonably related to the purposes to be served by probation and meets the legitimate needs of law enforcement, and appellant has not shown that the conditions of his probation unduly restrict his liberty to travel, we conclude that the district court did not abuse its discretion when it denied appellant’s motion to remove the geographical-restriction condition.

            Affirmed.