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People v. Cooley.

2020 COA 101. No. 17CA1331. Probation Conditions—Right of Familial Association—Sex Offender—Constitutional Law.

June 25, 2020

Defendant entered into a plea agreement under which he pleaded guilty to one count of sexual assault. The district court sentenced him to sex offender intensive supervision probation (SOISP) for a term of 10 years to life. Defendant’s SOISP included additional probation provisions for adult sex offenders. Condition 4 prohibited contact with any children under the age of 18, including his own children. Condition 5 provided that if defendant had incidental contact with children, he was to be civil and courteous and immediately remove himself from the situation.

The probation department filed a revocation complaint alleging that defendant violated conditions 4 and 5 by talking to his young daughter in his car after church. After a hearing, the district court found that defendant had violated these conditions. It revoked his probation and sentenced him to an indeterminate term of two years to life in the custody of the Department of Corrections.
On appeal, defendant argued that the district court plainly erred by finding that he violated condition 5 “by not immediately reporting” the contact he had with his daughter, because condition 5 did not require him to immediately report the interaction. Condition 5 did not require defendant to immediately report the interaction, and the factual findings that the district court made do not support its conclusion that defendant violated condition 5’s restrictions. Therefore, the district court erred, and this error was plain.

Defendant also argued that condition 4 is invalid because it infringes on his fundamental constitutional right to familial association, so his violation of that condition could not serve as the basis for revocation of his probation. Based on the record, there is no immediately apparent connection between defendant’s offense and the need to restrict his familial contact. In situations where the need for such restrictions is not self-evident, probation conditions that infringe on a defendant’s fundamental constitutional rights must be supported by a specific finding that (1) compelling circumstances require their imposition, and (2) less restrictive means are not available. However, nothing in the record supports the condition 4 limitations or establishes that those conditions are the least restrictive available means to accomplish defendant’s probation’s legitimate purpose.
The order was reversed and the case was remanded with directions.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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