Opinion
No. 3-489 / 03-0254
Filed September 10, 2003
Appeal from the Iowa District Court forWebsterCounty, Fredrick E. Breen, District Associate Judge.
Defendant-appellant Bounh Khamjoi appeals his judgment and sentence following his plea of guilty to the crime of domestic assault while displaying a dangerous weapon in violation of Iowa Code sections 708.1 and 708.2A(2)(c) (2001). CONVICTION AFFIRMED; SENTENCE MODIFIED.
Linda Del Gallo, State Appellate Defender and David Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Timothy Schot, County Attorney, and Ricki Olson, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Miller and Hecht, JJ.
Defendant-appellant Bounh Khamjoi appeals his judgment and sentence following his plea of guilty to the crime of domestic assault while displaying a dangerous weapon in violation of Iowa Code sections 708.1 and 708.2A(2)(c) (2001). On appeal defendant claims that his sentence was illegal because the terms of his probation, which ban him from Webster City, Iowa, unfairly restrict his constitutional right to free travel. We affirm defendant's conviction but strike that part of his probation sentence restricting him from traveling into Webster City.
I. BACKGROUND FACTS AND PROCEEDINGS
According to the minutes of testimony, defendant and the mother of his three children, Daeng Thongsy, were on a camping trip on July 21, 2002, when defendant held a loaded rifle to Thongsy's head and threatened to kill her. The State filed charges against defendant including domestic assault while displaying a dangerous weapon, in violation of sections 708.1 and 708.2A(2)(c); false imprisonment, in violation of section 710.7; and domestic assault causing injury, in violation of sections 708.1, and 708.2A(2)(b). On September 3, 2002 defendant pled not guilty to the charges.
On October 24, 2002, defendant entered a guilty plea to the sole charge of domestic assault while displaying a dangerous weapon, in violation of sections 708.1 and 708.2A(2)(b). The State dismissed the other charges. Following plea proceedings on December 19, 2002, the district court entered judgment on December 23, 2002, sentencing defendant to an indeterminate term not to exceed two years in the custody of the Department of Corrections. On December 30, 2002, defendant filed a motion for reconsideration of the sentence, which came on for hearing on January 24, 2003. The court suspended the prison sentence and placed defendant on probation. Conditions placed on that probation were that defendant was to move out of the State of Iowa within thirty days, and defendant was not to be present in Webster City, the town of his and Thongsy's residence.
On February 5 the court amended defendant's conditions of probation, setting aside the provision requiring him to leave the state of Iowa. The amendments also permitted defendant to reside in Webster City for a period of ninety days beginning February 5, 2003, before the probation condition requiring him to stay out of Webster City would be reinstated.
The State argues defendant's challenge should be construed as a writ of certiorari. Under section 902.4 the trial court has full discretion in deciding whether to reconsider a sentence. The only means of challenging this discretion is to file a writ of certiorari claiming a substantial error of law. See Tindell v. Iowa Dist. Ct., 600 N.W.2d 308, 310 (Iowa 1999). In this case, however, the issue is not whether the court should have reconsidered defendant's sentence, but whether the actual sentence was illegal. An illegal sentence may be challenged at any time and is not subject to the usual requirements of error preservation. Tindell v. State, 629 N.W.2d 358, 359 (Iowa 2001). We do not decide whether defendant's claim is properly construed as a direct appeal or a writ of certiorari for our review pursuant to Iowa Rule of Appellate Procedure 6.304.
II. SCOPE OF REVIEW
We review for correction of errors at law. State v. Cooley, 587 N.W.2d 752, 754 (Iowa 1998). Where a challenged sentence does not fall outside statutory limits, we review the trial court's decision for abuse of discretion; reversal on this ground is warranted only if the court's discretion has been exercised "on grounds or for reasons clearly untenable or to an extent clearly unreasonable." Id.;(citing State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996)).
III. ANALYSIS
Defendant claims the probationary provision restricting his travel into Webster City is an unconstitutional infringement on his fundamental right to travel.
The legislature has given the courts broad, but not unlimited, authority in establishing the conditions of probation. State v. Jorgensen, 588 N.W.2d 686, 687 (Iowa 1998); s ee State v. Rogers, 251 N.W.2d 239, 242-43 (Iowa 1977). Probationers are subject to any reasonable conditions the court may impose to promote rehabilitation of the defendant or protection of the community. Jorgensen, 588 N.W.2d at 687. Although probationers, by virtue of their convictions, must be subject to greater restrictions of their constitutional rights than ordinary citizens, a district court's discretion in establishing probation conditions is carefully scrutinized when a condition restricts fundamental rights. State v. Franklin, 604 N.W.2d 79, 82 (Minn. 2000).
In discussing the right to travel in City of Panora v. Simmons, 445 N.W.2d 363, 367 (Iowa 1989), our supreme court said the following:
Interstate travel is classified as a "fundamental right" for substantive due process and equal protection purposes, Attorney Gen. of New York v. Soto-Lopez, 476 U.S. 898, 901-04, 106 S.Ct. 2317, 2320, 90 L.Ed.2d 899, 904-06 (1986); Memorial Hosp. v. Maricopa County, 415 U.S. 250, 254, 94 S.Ct. 1076, 1080, 39 L.Ed.2d 306, 312 (1974). The exact source of the fundamental right of interstate travel is said to be uncertain, but it is probably based on the commerce clause or the privilege and immunities provisions of the United States Constitution. L. Tribe, American Constitutional Law § 16-8, at 1455 n. 3 (2d ed. 1988). Travel which is not interstate is, of course, not specifically mentioned in the constitution, and its status as a fundamental right has been debated. Compare Waters v. Barry, 711 F. Supp. 1125 (D.C. 1989); Allen v. City of Bordentown, 216 N.J. Super. 557, 524 A.2d 478 (1987), with Bykofsky v. Borough of Middletown, 401 F. Supp. 1242 (M.D.Pa. 1975), aff'd, 535 F.2d 1245 (3d Cir.), cert. denied, 429 U.S. 964, 97 S.Ct. 394, 50 L.Ed.2d 333 (1976); People in Interest of J.M., 768 P.2d 219 (Colo. 1989).
We recognize the issue of whether intrastate travel is a fundamental right is unsettled, and we are mindful that defendant's rights are somewhat lessened due to his probationary status. Nevertheless, we are convinced that the terms of defendant's probation "mustbe reasonably related to the purposes of sentencing" and not "unduly restrictive of [his] liberty or autonomy." Franklin, 604 N.W.2d at 83 (citing State v. Friberg, 435 N.W.2d 509, 515 (Minn. 1989)).
We agree with defendant that the probationary term restricting him from traveling into the town of Webster City is unduly restrictive. Webster City is a town with a population of over 8000 people. The purpose of keeping defendant from entering Webster City was to help enforce defendant's no-contact order with Thongsy. We note that Thongsy's and defendant's residence is near the outskirts of Webster City, which means that if defendant is relatively close to the house but outside the Webster City city limits he is in compliance with his probation, but if he is relatively far from the house but within the city limits, he is in violation of the probation. Excluding defendant from Webster City does not necessarily assist the implementation of the no-contact order, as it does not consistently establish a distance between defendant and Thongsy, which was the purpose for the probationary provision at issue. In Franklin, 604 N.W.2d at 83, the Minnesota Supreme Court used similar rationale in holding a district court abused its discretion by imposing a probationary travel restriction like the one at issue here.
The State cites several cases in support of its argument that geographical restrictions have been held to be reasonably related to probationary goals and upheld in other states. Only two of those cases, Cobb v. State, 437 So.2d 1218, 1220 (Miss. 1983) and State v. Nienhardt, 537 N.W.2d 123 (Wis.Ct.App. 1995), however, involved defendants who were banned from a relatively large geographical area for the stated purpose of protecting another who would likely be found somewhere in the area. In the more recent of those cases, Nienhardt, 537 N.W.2d at 126, the Wisconsin Court of Appeals determined that the defendant could be banned from a town as part of her probation in order to protect one individual in that town. Although concerned with the reach of the ban, the court relied heavily on the facts that (1) defendant's only named reason to be in that town was to buy cigarettes, and (2) there was no evidence the ban would result in the denial to her of goods and services. Nienhardt, 537 N.W.2d at 126. As the probationary goal of protecting a certain individual living in that town was reached, and the defendant's liberties were not greatly infringed upon by the ban, the court upheld the restriction. In this case, in contrast, defendant lives in Webster City, has family there, including a brother, and has a work history there. His liberties would be significantly infringed upon if he were banned from Webster City, and as we stated earlier, the probationary goal of maintaining a particular distance between him and Thongsy would not necessarily be met in the process.
We are inclined to agree with the Minnesota Supreme Court in Franklin,and we believe its analysis is equally applicable here. We therefore strike that part of defendant's probation restricting him from traveling into the town of Webster City.