835 S.E.2d 87
Va. Ct. App.2019Background
- Defendant Chancelier Fazili pleaded guilty to one count of aggravated sexual battery of a child under thirteen for touching a five-year-old; sperm matching his DNA was found on the child.
- He was sentenced to 20 years’ imprisonment with 15 years suspended (10-year probationary period) after the circuit court departed upward from the recommended sentencing guideline range.
- As a condition of probation the court ordered Fazili "have no use of any device that can access internet unless approved by his Probation Officer." Fazili objected on First Amendment and delegation grounds.
- The court explained the upward departure in writing under Va. Code § 19.2-298.01(B); the sentence was within the statutory maximum for aggravated sexual battery.
- The Court of Appeals reviewed (1) whether the sentence was an abuse of discretion and (2) the legality and scope of the internet-access probation condition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused its discretion in sentencing/departure from guidelines | Fazili: court failed to give mitigating factors adequate weight and improperly relied on irrelevant factors | Commonwealth: sentence within statutory range; guidelines are discretionary and court explained its reasons for departure | No abuse; sentence affirmed (within statutory range; court considered guidelines and stated reasons) |
| Whether internet-access probation condition violated First Amendment | Fazili: blanket ban burdens free speech and is not narrowly tailored | Commonwealth: probation conditions are permissible to protect public safety/rehabilitation and can limit liberties of probationers | Reversed in part and remanded — condition was not narrowly tailored on this record; court must articulate justification or narrow the restriction if reimposed |
| Whether delegating approval authority to probation officer violated Va. Code § 19.2-303 (improper delegation) | Fazili: court impermissibly delegated the parameters of the condition to probation officer | Commonwealth: court may set bounds and delegate day-to-day supervision/parameters to probation officer | Delegation not per se improper; but court erred by failing to provide sufficient rationale/parameters when imposing a broad ban |
| Whether the internet ban was an unreasonable condition of probation | Fazili: condition unreasonable and overbroad given offense did not involve internet | Commonwealth: condition reasonable as a supervision tool tied to public safety/rehabilitation | Condition was unreasonable as imposed (overbroad); remand for resentencing with instruction to justify or narrow any internet restriction |
Key Cases Cited
- Packingham v. North Carolina, 137 S. Ct. 1730 (2017) (Supreme Court struck down a broad post-custodial ban on access to social-networking sites and applied narrow-tailoring scrutiny for content-neutral internet restrictions)
- Griffin v. Wisconsin, 483 U.S. 868 (1987) (probation is an alternative to incarceration and probationers have diminished liberty interests)
- McCullen v. Coakley, 573 U.S. 464 (2014) (intermediate scrutiny requires narrow tailoring to serve significant governmental interests)
- United States v. Knights, 534 U.S. 112 (2001) (probationers do not enjoy the full scope of ordinary liberty and may be subject to search/conditions)
- Morrissey v. Brewer, 408 U.S. 471 (1972) (probation/parole is conditional liberty dependent on observance of conditions)
- Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (government may prohibit specific speech conduct that facilitates sexual abuse)
- West v. Director, Department of Corrections, 273 Va. 56 (2007) (Virginia sentencing guidelines are discretionary and courts must explain departures)
- Murry v. Commonwealth, 288 Va. 117 (2014) (probation is an act of grace; courts have broad discretion to impose conditions of probation)