Opinion
111,237.
09-26-2014
STATE of Kansas, Appellee, v. Justin W. THULEN, Appellant.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant. J. Scott James, county attorney, and Derek Schmidt, attorney general, for appellee.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant.
J. Scott James, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., STANDRIDGE and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Justin W. Thulen pled guilty to attempted failure to register as a sex offender and was sentenced to probation. As a condition of probation, the district court judge ordered that Thulen cut his hair to no more than 2 inches long. Thulen appeals, arguing that the district court exceeded its authority by making hair length a condition of probation. We agree. Because the condition that Thulen cut his hair is not reasonably related to the goals of probation, his offense, or the protection of the public, the district court exceeded its authority in ordering him to cut his hair, and the order is reversed and the case remanded for the district court to strike the condition.
Factual and Procedural History
Thulen pled no contest to an amended charge of attempted failure to register as a sex offender and was sentenced to an underlying sentence of 10 months' imprisonment, but placed on probation for 18 months. In addition to the ordinary conditions of probation, the district court ordered Thulen to cut his hair to no longer than 2 inches within a week of sentencing. At that time, the following exchange occurred:
“THE COURT:.... Now, the next condition is one that's personal to me-and you have the right to appeal this order, so you can appeal this if you want. But one of the conditions of probation that I think is helpful is to not only help you to reform and comply with the law, but also to change your life, and one of those changes I'm gonna help you make is your appearance. I think being on probation is not a privilege to do as you please; it is a privilege not to go to prison. So I'm gonna order you cut your hair and it will have to be no longer than two inches long. You do that within a week. In spite of the fact your attorney has hair longer than that, he's not on probation, at least not yet.
“[THULEN]: May I make a comment on that?
“THE COURT: Yes.
“[THULEN]: My dad's been diagnosed with cancer and, you know, that's why I'm letting my hair grow out so I can donate to Locks of Love.
“THE COURT: Okay. Well, it would be a good time to donate.
“[THULEN]: I'll be letting it
“THE COURT: Looks like it's about time to harvest.
“[THULEN'S COUNSEL]: He said it's not long enough to cut yet for Locks of Love.
“THE COURT: Oh, I think they'll take it. You tell ‘em I said so. In any event, within a week have it cut. Maybe if you cut it right on the skin level, it'll be long enough.”
Prior to the end of the sentencing hearing, Thulen noted on the record that he wished to reserve the hair issue for appeal. At that time, the district court revisited Thulen's objection to the condition:
“THE COURT: Okay. Were there any ethnic or religious grounds for the objection?
“[THULEN]: I mean, it's against my religion to cut my hair.
“[THULEN'S COUNSEL]: Apparently there are.
“THE COURT: What is that religion?
“[THULEN]: I mean, it's just—I don't see what—why my hair has anything to do with any kind of trouble I've been in.
“THE COURT: Okay. I think that could be a concession if there are no recognized religious bases for the objection.”
Thulen ultimately requested a stay of the order pending appeal, which the district court granted. Thulen then timely appealed.
Analysis
On appeal, Thulen contends that the district court exceeded its authority and impermissibly infringed upon his constitutional rights by ordering that he cut his hair as a condition of probation. The State takes no position on the outcome of the appeal but notes that it believes “the condition is meant to make the probationer more presentable to prospective employers, and thus more likely to secure employment, gain a steady source of income, and thus achieve some stability in the probationer's life.”
The statutory authority for a district court to impose conditions of probation is found in K.S.A.2013 Supp. 21–6607. The relevant provision provides that “[t]he court may impose any conditions of probation ... that the court deems proper, including, but not limited to” 14 enumerated conditions of probation. K.S.A.2013 Supp. 21–6607(b). Because the district court “has broad powers to impose probation conditions designed to serve the accused and the community ... [s]etting the conditions of probation lies within the sound discretion of the trial court.” State v. Mosburg, 13 Kan.App.2d 257, 258, 768 P.2d 313 (1989). However, this broad discretionary power is not unlimited. For example, “a district court does not have discretion to impose probationary conditions that violate a probationer's constitutional rights, absent a compelling state interest.” State v. Bennett, 288 Kan. 86, 91, 200 P.3d 455 (2009). Moreover, even those conditions that do not infringe upon constitutional rights may exceed the court's statutory authority if they are “not reasonably related to the rehabilitative goal of probation or to the protection of the victim and society.” State v. Schad, 41 Kan.App.2d 805, Syl. ¶ 8, 206 P.3d 22 (2009). Accordingly:
“A condition of probation will not be held invalid unless it (1) has no reasonable relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.” State v. Lumley, 267 Kan. 4, 14, 977 P.2d 914 (1999).
This court and our Kansas Supreme Court have each addressed a variety of cases concerning both constitutional and statutory challenges to probation conditions. For example, in Mosburg, the district court imposed the condition that the defendant—a woman convicted of endangering a child—not become pregnant while on parole. The defendant argued that this condition violated her constitutional right to privacy. After reviewing precedent from other jurisdictions, this court found that the challenged condition “unduly intrudes on [the defendant's] right to privacy” and accordingly struck the condition from the terms of her parole. 13 Kan.App.2d at 260.
In State v. Evans, 14 Kan.App.2d 591, 796 P.2d 178 (1990), the defendant challenged a condition of his probation that required he attend and perform 1,000 hours of maintenance work at a specific church. Although this court “agree[d] that certain conditions of probation may restrict constitutional rights or freedoms an ordinary citizen might enjoy,” it determined that “any such restrictions must bear a reasonable relationship to the rehabilitative goals of probation, the protection of the public, and the nature of the offense.” 14 Kan.App.2d at 592. Because this court found no connection between the condition and either the goals of probation, protection of the public, or the offense, and because it was “difficult to conclude that a compelling state interest requires” the condition in question, the court reversed and remanded the case for resentencing. 14 Kan.App.2d at 593.
In another case, our Supreme Court upheld a probation condition requiring the defendant to submit to polygraph tests in order to ensure that he complied with the other terms of his probation—that is, avoiding contact with young females. Lumley, 267 Kan. at 14. Because the condition helped monitor his behavior while on probation and because it was “aimed at deterring and discovering criminal conduct most likely to occur during unsupervised contact with young females,” the court determined that it was related both to the offense and the defendant's future criminality. 267 Kan. at 14. But in another case, this court struck down the condition that the defendant refrain from intimate relationships with individuals under the age of 21 as too unrelated to his offenses or future criminality. State v. Andrus, No. 90,858, 2005 WL 1560802, at *2 (Kan.App.2005) (unpublished opinion). There, the defendant was convicted for domestic battery and sexual exploitation of a child based on an attack on his girlfriend and “retention of computer printouts of nude females, many of whom appeared to be under 18, in sexually explicit poses.” 2005 WL 1560802, at *2. This court determined that although the probation condition was “somewhat ” related to the defendant's offense, it was “simply not drawn narrowly enough to be upheld.” 2005 WL 1560802, at *2.
More recently, in Schad, this court addressed a probation condition that required the defendant—a man convicted of aggravated indecent solicitation of a child—to place signs reading “ ‘Sex Offender Lives Here’ “ on his house and “ ‘Sex Offender In This Car’ “ on his car. 41 Kan.App.2d at 809–10. After reviewing a number of cases from other jurisdictions rejecting the same types of signage conditions, this court analyzed whether, under our Kansas precedent, the district court was authorized to impose such a condition. First, the court parsed the language of what is now K.S.A.2013 Supp. 21–6607(b) and noted that the conditions listed “are closely related to conventional societal duties,” which in turn “reflect[ed] the legislature's intent that the main goal of probation is rehabilitation.” 41 Kan.App.2d at 818. According to the record, the defendant had “ ‘little chance of recidivism’ “ and was not “ ‘a public risk’ “; moreover, nothing in the record or transcripts served to provide a rehabilitative goal for the signs. 41 Kan.App.2d at 819–20. Instead, this court viewed the signs as a “very harsh censure” that “would not be helpful in restoring [the defendant] to the ranks of society's productive citizens.” 41 Kan.App.2d at 821. Next, the court determined that the condition was “not reasonably related to the protection of the public” because, contrary to the district court's concerns, the defendant lived in a very small community where any newcomer would “swiftly be made aware of” the defendant's status as a sex offender. 41 Kan.App.2d at 821. Ultimately, this court held that instead of being related to rehabilitation or the protection of society, the condition “made [the defendant] an object of condemnation and ridicule” and “confirmed society's outrage against [him].” 41 Kan.App.2d at 823. As such, this court found that the district court exceeded its authority, and it remanded the case for the signage conditions to be struck from the probation order. 41 Kan.App.2d at 823.
Clearly, Schad and the other cases discussed involve more severe and restrictive conditions than conforming to a certain type of haircut. A review of the relevant caselaw suggests that a haircut condition like this one is indeed an issue of first impression in Kansas. As Thulen observes, other jurisdictions that have addressed this issue rejected haircuts as a condition of probation. See Inman v. State, 124 Ga.App. 190, 195, 183 S.E.2d 413 (1971) (condition requiring defendant maintain a short haircut determined unreasonable because it “invade[d] a person's constitutionally protected right to personal self-expression” and did not relate to the defendant's crime or future behavior); People v. Dunn, 43 Ill.App.3d 94, 96, 356 N.E.2d 1137 (1976) (condition that traffic defendant “maintain the length of his hair, and his appearance, in a manner approved by his probation officer” was not connected to the offense and exceeded trial court's authority); State v. King, 151 Ohio App.3d 346, 351–52, 784 N.E .2d 138 (2003) (trial court abused its discretion in ordering defendant to cut his hair and “remain clean shaven to ‘change how [the defendant] views himself and change how others view [the defendant]’ “ because the condition infringed on the defendant's liberty).
Under our Kansas precedent, and with these other cases as a guide, it is difficult to determine how a condition requiring a 2–inch haircut is reasonably related to the goals of probation, the underlying offense, the protection of the public, or the possibility of future criminality. According to our Kansas Supreme Court, “[t]he primary purpose of probation is the successful rehabilitation of the offender,” and probation conditions are “restrictions on the probationer's liberty to afford the probationer a setting conducive to the rehabilitative process.” State v. Turner, 257 Kan. 19, 24, 891 P.2d 317 (1995). The State suggests that a short haircut may “make the probationer more presentable to prospective employers” and in turn will allow the probationer to develop some stability. Indeed, the district court in this case stated that it believed that a shorter hairstyle would assist Thulen in changing his life and conforming to the law. However, nothing in the district court's discussion or the record as a whole suggests that Thulen is less likely to be rehabilitated or to establish a stable lifestyle with long hair. Similarly, the record fails to elucidate how Thulen's hair length relates to his offense or his likelihood to reoffend. A shorter haircut also serves no public protective purpose, as the public is unlikely to benefit from Thulen's short hair. If anything, the public benefits more from Thulen growing out his hair and donating it to Locks for Love as he intended at the time of sentencing.
In Inman, the Georgia Court of Appeals summarized the problems with this particular probation condition as such:
“The condition at issue here represents no more than a particular judge's taste in personal appearance and one which has no demonstrable effect on behavior. Society has not authorized its courts to make such conditions for probationers. Some other judge could well decide that they ought to wear striped uniforms and have shaven heads. Limited as their freedom undoubtedly is, probationers are still individuals, not inmates. Having been deemed worthy to stay in society, they must either have the right of a free man to personal self-expression which does not infringe on the rights of others, or the whole concept of rehabilitation through probation goes down the drain.” 124 Ga.App. at 194–95.
The condition that Thulen cut his hair is not reasonably related to the goals of probation, his offense, or the protection of the public. As such, the district court exceeded its authority in ordering him to cut his hair, and we must reverse the order and remand the case for the district court to strike the condition.
Reversed and remanded.