v. Landis

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
July 8, 2021

2021COA92

No. 17CA1449, People v. Landis — Criminal Law — Sentencing
— Sex Offender Intensive Supervision Probation; Constitutional
Law — First Amendment — Freedom of Speech

A division of the court of appeals holds that the conditions of

defendant Christopher David Landis’s sentence to sex offender

intensive supervision probation (SOISP) restricting his use of the

internet and social media did not violate the Colorado statutory

scheme or his constitutional rights to free speech under the United

States and Colorado Constitutions. In doing so, the division holds,

as a matter of first impression in Colorado, that the United States

Supreme Court’s decision in Packingham v. North Carolina, 582 U.S.

___, 137 S. Ct. 1730 (2017), does not apply to conditions restricting

internet and social media use of a sentence to SOISP that a

defendant is still serving.
COLORADO COURT OF APPEALS 2021COA92

Court of Appeals No. 17CA1449
Mesa County District Court No. 17CR296
Honorable Valerie J. Robison, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Christopher David Landis,

Defendant-Appellant.

SENTENCE AFFIRMED

Division IV
Opinion by JUDGE DAVIDSON*
Furman and Pawar, JJ., concur

Announced July 8, 2021

Philip J. Weiser, Attorney General, Gabriel P. Olivares, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jeanne Segil, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶1 Defendant, Christopher David Landis, appeals his

probationary sentence for attempted sexual assault on a child. He

contends that the conditions of his probation restricting his use of

the internet and social media violate (1) the governing Colorado

statutory scheme and (2) his rights to free speech under the United

States and Colorado Constitutions. While we fully acknowledge

that, to date, the internet has become one of the most important

places, if not the most important place, for people to exchange views

and ideas, under the circumstances here, we disagree with both of

Landis’s contentions. Accordingly, we affirm.

I. Background

¶2 According to the affidavit of probable cause for arrest, Landis

sexually assaulted his stepdaughter when she was ten years old.

The evidence included his admission to police that he touched the

victim’s vagina and breasts.

¶3 The prosecution charged Landis with sexual assault on a child

and sexual assault on a child by one in a position of trust. He

pleaded guilty to an added count of attempted sexual assault on a

child, and the original charges were dismissed. The parties

stipulated to a sentence to probation.

1
¶4 At the sentencing hearing, the prosecutor agreed with the

recommendation in the presentence investigation report that the

district court sentence Landis to sex offender intensive supervision

probation (SOISP) and require him to comply with (1) the standard

“Additional Conditions of Probation for Adult Sex Offenders” (the

standard conditions) and (2) the recommendations in the sex offense

specific evaluation (SOSE).

¶5 However, Landis argued, among other things, that he should

not be required to comply with the two standard conditions

prohibiting use of the internet and social media without prior

approval from his probation officer. He emphasized that he is

required to use the internet in his ongoing employment at an

electronics installation company. He also argued that the

conditions violate his constitutional rights based on Packingham v.

North Carolina, 582 U.S. ___, 137 S. Ct. 1730 (2017) (invalidating

statute creating new felony offense for violation of post-custodial

restrictions on sex offender access to social media).

¶6 The district court sentenced Landis to seven years of SOISP.

As for the two standard conditions restricting use of the internet

and social media, the court required Landis to comply with those

2
conditions but modified them to allow for such use required by his

employment at the electronics installation company. Specifically,

the modified conditions at issue read (with the modifications in bold

typeface) as follows:

22. You shall not be allowed to subscribe to
any internet service provider, by modem, LAN,
DSL, or any other avenue (to include, but not
limited to, satellite dishes, PDAs, electronic
games, web televisions, internet appliances
and cellular/digital telephones) and shall not
be allowed to use another person’s internet or
use the internet through any venue until
approved by the supervision team, with the
exception of use through employment for
[the electronics installation company].
When access has been approved (including
access through [the electronics installation
company]), you agree to sign, and comply
with, the conditions of the “Computer Use
Agreement” – JDF321P. Additionally, you will
allow your probation officer, or other person
trained, to conduct searches of computers or
other electronic devices used by you. This
includes the computer usage during
employment with [the electronics
installation company]. The person
conducting the search may include a
non-judicial employee and you may be
required to pay for such a search.

....

28. You shall not utilize, by any means, any
social networking forums offering an
interactive, user-submitted network of friends,

3
 personal profiles, blogs, chat rooms or other
environment which allows for real-time
interaction with others, except under
circumstances approved in advance and in
writing by the probation officer in consultation
with the community supervision team. The
only exception authorized by the Court at
the time of sentencing was through
employment with [the electronics
installation company]. This exception does
not preclude additional exceptions that
may be authorized by the probation officer
in consultation with the community
supervision team.

II. Landis’s Statutory Claim

¶7 Landis contends that the district court abused its discretion

by imposing the probation conditions at issue because they are not

reasonably related to his rehabilitation and the purposes of

probation under section 18-1.3-204(2)(a)(XV), C.R.S. 2020. We

disagree.

A. Applicable Law and Standard of Review

¶8 Probation is “a privilege, not a right.” People v. Smith, 2014

CO 10, ¶ 8. It is an alternative to prison and is intended to be

rehabilitative. See § 18-1.3-104(1)(a), (b), C.R.S. 2020; Smith, ¶ 8.

If an offender seeks a probationary sentence as an alternative to

4
 prison, he or she must accept the district court’s conditions for

probation. Smith, ¶ 8.

¶9 Section 18-1.3-204(2) lists the various conditions of probation

that a district court may impose, which includes a catchall for “any

other conditions reasonably related to the defendant’s rehabilitation

and the purposes of probation.” § 18-1.3-204(2)(a)(XV).

¶ 10 The parties agree that the following five factors are relevant in

determining whether the probation conditions at issue are

reasonably related to Landis’s rehabilitation and the purposes of

probation: (1) whether the conditions are reasonably related to the

underlying offense; (2) whether the conditions are punitive to the

point of being unrelated to rehabilitation; (3) whether the conditions

are unduly severe and restrictive; (4) whether the defendant may

petition the court to lift the conditions temporarily when necessary;

and (5) whether less restrictive means are available. See People v.

Brockelman, 933 P.2d 1315, 1319 (Colo. 1997).

¶ 11 “[A district] court has broad discretion to impose whatever

[probation] conditions it considers appropriate” in any given case.

Smith, ¶ 9; see also § 18-1.3-202(1)(a), C.R.S. 2020 (A district court

may grant a defendant probation “upon such terms and conditions

5
 as it deems best.”); § 18-1.3-204(1)(a) (“The conditions of probation

shall be such as the court in its discretion deems reasonably

necessary.”).

¶ 12 We review the district court’s decision for an abuse of

discretion. See Brockelman, 933 P.2d at 1319 (“[T]he applicable

standard of review . . . requires an abuse of discretion by the trial

court to occasion any modification of the trial court’s [conditions of

probation].”); cf. People v. Cooley, 2020 COA 101, ¶ 26 (“We

consider de novo whether a probation condition is constitutional or

statutorily authorized.”) (emphasis added).

B. Brockelman Factors

¶ 13 We conclude from our evaluation of the five Brockelman

factors that the probation conditions at issue restricting Landis’s

use of the internet and social media are reasonably related to his

rehabilitation and the purposes of probation.

¶ 14 First, the conditions are reasonably related to Landis’s

underlying offense. To be sure, Landis did not use the internet in

attempting to sexually assault his stepdaughter. However, he

engaged in sexual conduct with a child, and it was reasonable to

place restrictions on Landis’s use of a medium that easily can be

6
used to facilitate contact with children. See United States v.

Edwards, 813 F.3d 953, 969 n.11 (10th Cir. 2015) (“Computers and

internet connections have been characterized elsewhere as tools of

the trade for those who sexually prey on children.” (quoting United

States v. Colbert, 605 F.3d 573, 578 (8th Cir. 2010))); United States

v. Robertson, 350 F.3d 1109, 1113 (10th Cir. 2003) (“[C]yberspace

provides an increasingly common and effective medium by which

would-be sexual predators can contact minors.”); see also People v.

Crabtree, 37 N.E.3d 922, 927 (Ill. App. Ct. 2015) (“[A]lthough [the]

defendant’s crime did not include use of a computer or a social

networking website, it involved the sexual abuse of a young girl.

Thus, the conditions of probation [restricting his use of a computer]

appear reasonably related to the goals of deterrence, protection of

the public, and rehabilitation of [the] defendant.”); McVey v. State,

863 N.E.2d 434, 450 (Ind. Ct. App. 2007) (where the defendant was

convicted of child molesting, the court held that a probation

condition restricting his internet access was reasonable — despite

the fact that his offense did not involve the use of a computer —

because “accessing prohibited material is easily accomplished with

a computer, and for that reason computer access would provide a

7
 temptation of such a magnitude that exposure to it would not be in

the best interest of [the defendant’s] rehabilitation. This is so

because the internet defies boundaries and offers unlimited access

to people, including children.”) (citation omitted).

¶ 15 Notably, according to the SOSE, objective testing indicated

that Landis’s highest sexual interest is toward juvenile females. It

also concluded that he was in high denial regarding his offense.

The SOSE recommended that he be “monitored carefully while in

the community” and “not have contact with [the victim] or with

anyone younger than 18.” See People v. Devorss, 277 P.3d 829, 837

(Colo. App. 2011) (“By prohibiting unapproved contact with an

underage child, a sex offender learns to avoid situations that may

lead to inappropriate and unlawful conduct.”).

¶ 16 Regarding the second and third Brockelman factors, the

conditions at issue are not punitive to the point of being unrelated

to rehabilitation and are not unduly severe and restrictive.

Significantly, this was not a standard sentence to probation.

Landis is sentenced to sex offender intensive supervision probation.

Defendants serving an SOISP sentence are subject to “severely

restricted activities” and “receive the highest level of supervision

8
 that is provided to probationers.” § 18-1.3-1007(2), C.R.S. 2020;

see also McKune v. Lile, 536 U.S. 24, 32-33 (2002) (“Sex offenders

are a serious threat in this Nation. . . . When convicted sex

offenders reenter society, they are much more likely than any other

type of offender to be rearrested for a new rape or sexual

assault. . . . States thus have a vital interest in rehabilitating

convicted sex offenders.”); see generally People v. Manaois, 2021 CO

49, ¶¶ 35-40 (discussing the special nature of sex offender

sentencing, including SOISP’s rigorous treatment and supervision

requirements).

¶ 17 The General Assembly has given the Sex Offender

Management Board (SOMB) authority to “develop, implement, and

revise, as appropriate, guidelines and standards to treat adult sex

offenders.” § 16-11.7-103(4)(b), C.R.S. 2020. The probation

conditions at issue were based on the then-applicable standard

“Additional Conditions of Probation for Adult Sex Offenders,” which

the SOMB determined were appropriate for sex offenders sentenced

to SOISP at that time.

¶ 18 Further, the conditions are not unduly severe and restrictive

because the district court specifically authorized Landis to use the

9
 internet and social media as required by his employment at the

electronics installation company.

¶ 19 As to the fourth Brockelman factor, Landis retains the right to

ask the district court to modify the conditions in the future. See

§ 18-1.3-204(4)(a). Even more significantly, the probation

conditions at issue specifically envision that Landis’s probation

officer and the rest of his supervision team will tailor the conditions

to Landis’s circumstances. For example, condition number 22

provides that Landis will not be allowed to use the internet “until

approved by the supervision team,” and that Landis is required to

comply with the Computer Use Agreement “[w]hen access has been

approved.” See United States v. Koch, 625 F.3d 470, 482 (8th Cir.

2010) (upholding a supervised release condition restricting the

defendant’s computer and internet use “because the restriction is

not a complete ban. [The defendant] is permitted to use a computer

and the internet with prior approval from a probation officer.”); cf.

People v. Lientz, 2012 COA 118, ¶ 26 (distinguishing cases that

included an outright ban on intimate relationships that did not

allow for modification by the defendant’s probation officer or

10
 treatment provider). As the Fifth Circuit explained in United States

v. Miller,

[t]he district court’s restrictions . . . permit
flexibility by allowing the probation officer to
consider all the circumstances, including [the
defendant’s] needs for computer and Internet
access and alternatives that may exist in the
future for supervising that access. . . . [We]
“assume the Probation Office will reasonably
exercise its discretion by permitting [the
defendant] to use the Internet when, and to
the extent, the prohibition no longer serves the
purposes of his supervised release.”

665 F.3d 114, 133-34 (5th Cir. 2011) (quoting United States v. Love,

593 F.3d 1, 12 (D.C. Cir. 2010)); see also United States v. Morais,

670 F.3d 889, 897 (8th Cir. 2012) (“Given the importance of the

Internet as a resource, we expect that the probation office will not

arbitrarily refuse such approval when it is reasonably requested

and when appropriate safeguards are available.”).

¶ 20 Furthermore, for many of the reasons we have already

discussed, we conclude that less restrictive means would not be

reasonable. This is a sentence to SOISP, the conditions already

allow internet and social media use required by Landis’s

employment, and the conditions allow him to seek modification of

the conditions through his probation officer or the district court.

11
 Further, Landis will obviously retain other means for

communication, including communication in person and over the

telephone.

III. Landis’s Federal Constitutional Claim

¶ 21 Landis also contends that the two probation conditions at

issue infringe on his right to free speech under the United States

Constitution. See U.S. Const. amends. I, XIV.

¶ 22 We review the constitutionality of a probation condition de

novo. See Cooley, ¶ 26.

A. Constitutionality of Internet Restrictions: Packingham

¶ 23 At sentencing, and continuing in this appeal, Landis bases his

claim that his probationary conditions are unconstitutional on the

United States Supreme Court’s decision in Packingham v. North

Carolina, 582 U.S. ___, 137 S. Ct. 1730 (2017). Packingham

involved a North Carolina statute making it a felony for a registered

sex offender to access commercial social networking websites like

Facebook and Twitter. See id. at ___, 137 S. Ct. at 1733-34. The

Supreme Court held that the statute was unconstitutional. See id.

at ___, 137 S. Ct. at 1735-38.

12
¶ 24 However, the Supreme Court specifically pointed out that “[o]f

importance” to the Court was “the troubling fact that the [North

Carolina] law imposes severe restrictions on persons who already

have served their sentence and are no longer subject to the

supervision of the criminal justice system.” Id. at ___, 137 S. Ct. at

1737 (emphasis added). The Court repeated the same point soon

after, concluding that “[i]t is unsettling to suggest that only a

limited set of websites can be used even by persons who have

completed their sentences.” Id. (emphasis added); see also United

States v. Halverson, 897 F.3d 645, 658 (5th Cir. 2018) (concluding

that “the driving concern” of the Court in Packingham was that the

North Carolina statute applied to people who were no longer serving

their sentences).

¶ 25 We conclude that Packingham is distinguishable on that basis.

Unlike the defendant in Packingham, Landis is quite obviously still

serving his probationary sentence for a sex-related offense. See

Manaois, ¶ 46 (pointing out that a sentence to SOISP applies to an

offender who commits a sex offense or a sex-related offense) (citing

§ 18-1.3-1007(1)(a)). As the United States Supreme Court held in

United States v. Knights, “[i]nherent in the very nature of probation

13
 is that probationers ‘do not enjoy “the absolute liberty to which

every citizen is entitled.”’” 534 U.S. 112, 119 (2001) (quoting Griffin

v. Wisconsin, 483 U.S. 868, 874 (1987)). “Just as other

punishments for criminal convictions curtail an offender’s

freedoms, a court granting probation may impose reasonable

conditions that deprive the offender of some freedoms enjoyed by

law-abiding citizens.” Id.; see also Gall v. United States, 552 U.S.

38, 48 (2007) (“Offenders on probation are . . . subject to several

standard conditions that substantially restrict their liberty.”)

(emphasis added).

¶ 26 We agree with other courts that have distinguished

Packingham on that same basis for other types of sex-related

offenses. See United States v. Carson, 924 F.3d 467, 472-73 (8th

Cir. 2019); Halverson, 897 F.3d at 657-58; United States v. Rock,

863 F.3d 827, 831 (D.C. Cir. 2017); State v. King, 950 N.W.2d 891,

900-02 (Wis. Ct. App. 2020); Alford v. State, 279 So. 3d 752, 754-56

(Fla. Dist. Ct. App. 2019). But see United States v. Eaglin, 913 F.3d

88, 95-99 (2d Cir. 2019); United States v. Holena, 906 F.3d 288,

294-95 (3d Cir. 2018).

14
¶ 27 And given that Landis is serving a sentence to SOISP, we are

unpersuaded by his argument that the probation conditions at

issue amount to an unconstitutional prior restraint. This is not a

case of a free citizen being enjoined from engaging in

constitutionally protected speech. See In re Jawan S., 121 N.E.3d

1002, 1016-17 (Ill. App. Ct. 2018) (explaining why the principle of

an unconstitutional prior restraint does not apply to conditions of

probation).

¶ 28 In United States v. Ritter, the Sixth Circuit concluded that

“[s]upervisory conditions that implicate fundamental rights such as

freedom of speech and freedom of association are subject to careful

review, but if primarily designed to meet the ends of rehabilitation

and protection of the public, they are generally upheld.” 118 F.3d

502, 504 (6th Cir. 1997). Here, we have already concluded that the

two probation conditions at issue meet the goals of Landis’s

rehabilitation and the purposes of SOISP.

B. Constitutionality of Internet Restrictions:
Probationary Sex Offenders

¶ 29 We have concluded that the rule in Packingham that a state

statute imposing a lifetime restriction of internet access to all

15
 registered sex offenders is unconstitutional is inapplicable to an

analysis of the constitutionality of internet restrictions of sex

offenders on probation or supervised release. Landis argues that,

nevertheless, even under the more general intermediate scrutiny

test for determining the federal constitutionality of the probation

conditions at issue, the restrictions violate the First Amendment.

We do not agree.

¶ 30 For a content-neutral law to survive intermediate scrutiny, the

law must be “narrowly tailored to serve a significant governmental

interest.” Packingham, 582 U.S. at ___, 137 S. Ct. at 1736 (quoting

McCullen v. Coakley, 573 U.S. 464, 486 (2014)). “[T]he essence of

narrow tailoring” is that a restriction “focuses on the source of the

evils the [government] seeks to eliminate . . . without at the same

time banning or significantly restricting a substantial quantity of

speech that does not create the same evils.” Ward v. Rock Against

Racism, 491 U.S. 781, 799 n.7 (1989). Here, the probation

conditions focus on the source of evil the government aimed to

eliminate — convicted offenders of sex assaults against children,

who are still serving their sentences but nevertheless contact

minors or view sexually stimulating materials. Further, the

16
 probation conditions promote the substantial government interest

of protecting minors from a convicted sex offender who is still

serving his sentence and is still in the midst of rehabilitation. See

id. at 799 (concluding that the requirement of narrow tailoring is

satisfied if the restriction “promotes a substantial government

interest that would be achieved less effectively absent the

regulation.” (quoting United States v. Albertini, 472 U.S. 675, 689

(1985))).

¶ 31 We are unpersuaded by Landis’s argument that the district

court should have employed less restrictive means to regulate his

internet use. As the Fifth Circuit explained in Miller,

we reject the argument that a district court
may only resort to restrictions on Internet
access like those imposed in the present case
after investigating the efficacy of other options
such as monitoring computer usage and
Internet sites visited, unannounced
inspections, and filtering devices. Internet
access is widely available at locations other
than one’s home or place of employment.
Internet access is similarly widely available
from many types of devices that
defendants . . . might obtain or use without
detection. In addition, there are a variety of
devices that are likely to be possessed by
friends, family, and acquaintances that might
be available to defendants . . . for Internet
access without detection.

17
 665 F.3d at 133.

¶ 32 Additionally, the probation conditions at issue still leave ample

channels of communication for Landis to engage in everyday life.

For example, Landis may still communicate in person,

communicate over the telephone, receive news from television and

newspapers, and write to his government representatives. See Hill

v. Thomas, 973 P.2d 1246, 1257 (Colo. 1999) (absent a showing

that channels of communication are inadequate for petitioners to

express themselves, the law will be deemed to have left open ample

alternatives and should be upheld as constitutional), aff’d sub

nom. Hill v. Colorado, 530 U.S. 703 (2000).

¶ 33 We conclude that although the probation conditions at issue

are not the least restrictive means available, they are still

sufficiently narrowly tailored to serve the significant government

interest of protecting minors from a convicted sex offender who is

still serving his sentence and is still in the midst of rehabilitation.

IV. Landis’s State Constitutional Claim

¶ 34 Finally, Landis contends that the two probation conditions at

issue infringe on his right to free speech under the Colorado

18
 Constitution. See Colo. Const. art. II, § 10. In doing so, he

emphasizes that the Colorado Constitution provides greater

protection of free speech than the United States Constitution. See,

e.g., Bock v. Westminster Mall Co., 819 P.2d 55, 59 (Colo. 1991)

(“For more than a century, this Court has held that Article II,

Section 10 [of the Colorado Constitution] provides greater protection

of free speech than does the First Amendment [to the United States

Constitution].”).

¶ 35 However, Landis makes only a very general argument on

appeal that “[b]ecause [the probation conditions at issue] fail the

intermediate scrutiny test under the First Amendment, they

necessarily fail the more stringent test under article II, section 10,

of the Colorado Constitution.” In the district court, too, he made no

specific argument regarding his state constitutional claim beyond

his general assertion that the Colorado Constitution provides

“broader protection” of speech than the First Amendment.

¶ 36 As divisions of this court have determined, “where neither

party argues that a conceptual framework different from First

Amendment analysis governs the analysis of a free speech issue

under the Colorado Constitution, and federal jurisprudence has

19
 established a framework for considering the issue, our analysis may

proceed solely under the First Amendment.” In re Marriage of

Newell, 192 P.3d 529, 535 (Colo. App. 2008); see also Holliday v.

Reg’l Transp. Dist., 43 P.3d 676, 681 (Colo. App. 2001) (same).

Here, we have held that the probation conditions at issue are not

unconstitutional under the conceptional framework for analyzing a

First Amendment claim. Accordingly, because Landis has advanced

no specific suggestion on how a claim under article II, section 10 of

the Colorado Constitution should be analyzed differently, we

conclude that his claim under the Colorado Constitution also fails.

See also Curious Theatre Co. v. Colo. Dep’t of Pub. Health & Env’t,

220 P.3d 544, 551 (Colo. 2009) (“[W]e have at times characterized

the state constitution as providing greater protection for individual

freedom of expression than the Federal Constitution. We have,

however, rarely, if ever, construed article II, section 10 to

circumscribe more narrowly than the First Amendment the

regulatory powers of government.”) (citations omitted).

V. Conclusion

¶ 37 The sentence is affirmed.

JUDGE FURMAN and JUDGE PAWAR concur.

20