950 N.W.2d 891
Wis. Ct. App.2020Background
- Peter J. King Jr. was convicted of using a computer to facilitate a child sex crime and child enticement; received consecutive sentences including extended supervision and later a probation term for enticement.
- Court-ordered supervision repeatedly restricted King’s possession/use of internet-capable devices; King violated those restrictions multiple times (Facebook under alias, internet searches for “teen,” pornographic images, secret accounts, refusal to provide passwords).
- After probation revocation, the circuit court imposed a bifurcated sentence and renewed internet-related extended supervision conditions requiring agent permission to possess devices or access the internet and mandatory disclosure of accounts/profiles; limited public-device access permitted for employment/government business.
- King moved to vacate those conditions under the First Amendment relying on Packingham v. North Carolina and sought resentencing, asserting Packingham is a “new factor.”
- The circuit court modified the conditions (agent-permission framework and reporting requirements) but denied vacatur and resentencing; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court-ordered internet restrictions on extended supervision violate First Amendment free speech | State: restrictions are content-neutral, tailored to protect the public and aid rehabilitation given King’s history | King: Packingham shows blanket internet bans impermissibly bar access to protected speech and association | Court: Conditions are not a blanket ban, are narrowly tailored, reasonably related to rehabilitation, and permissible under intermediate scrutiny; individualized findings support them |
| Whether Packingham is a "new factor" requiring resentencing | State: Packingham is inapplicable to supervisees still serving sentences, so not a new factor | King: Packingham is uniquely applicable and was overlooked at sentencing | Court: Packingham does not control supervised-release conditions and was considered in sentencing; not a new factor; resentencing denied |
Key Cases Cited
- Packingham v. North Carolina, 137 S. Ct. 1730 (2017) (Supreme Court struck down a post-sentence statute banning registered sex offenders from social-media sites as overbroad)
- State v. Rowan, 341 Wis. 2d 281 (Wis. 2012) (supervision conditions may impinge rights if not narrowly tailored and reasonably related to rehabilitation)
- State v. Stewart, 291 Wis. 2d 480 (Wis. Ct. App. 2006) (broad discretion to impose probation/supervision conditions; constitutional challenges reviewed de novo for legal questions)
- State v. Harbor, 333 Wis. 2d 53 (Wis. 2011) (standards for modifying sentence based on a new factor)
- United States v. Perrin, 926 F.3d 1044 (8th Cir. 2019) (Packingham does not control supervised-release conditions; agent-approved internet use is not a total ban)
- McCullen v. Coakley, 573 U.S. 464 (2014) (intermediate scrutiny requires content-neutral restrictions be narrowly tailored to significant government interests)