Summary
The Nevada Supreme Court considered whether a plea-agreement waiver of the right to appeal a conviction barred an appeal challenging probation conditions. The court held that the waiver did not encompass the sentence or probation conditions. It further held that Nevada's mandatory, categorical internet-access prohibition for probationers convicted of sexual offenses violates the First Amendment because it is not narrowly tailored, while affirming the separate condition restricting access to places primarily serving children.
Topics
Practice areas
Questions Presented
- Whether Aldape's plea-agreement waiver of the right to appeal his conviction also waived his right to challenge probation conditions imposed as part of his sentence.
- Whether NRS 176A.410(1)(q), which mandates a categorical internet-access ban for probationers convicted of sexual offenses, violates the First Amendment.
- Whether the district court had authority under NRS 176A.400(1)(c)(3) to impose a geographic restriction on a non-Tier III sexual offender similar to the mandatory restriction in NRS 176A.410(1)(m).
- Whether the geographic restriction violated the First Amendment.
Holdings
- A plea-agreement waiver of the right to appeal the defendant's conviction, without also referring to the sentence or probation conditions, does not waive an appeal challenging probation conditions imposed at sentencing.
- NRS 176A.410(1)(q) is facially unconstitutional under the First Amendment because its mandatory, categorical prohibition on internet access by every probationer convicted of a sexual offense is not narrowly tailored to the State's interests in public safety and rehabilitation.
- NRS 176A.410(1)(m)'s limitation of its mandatory condition to Tier III offenders does not prohibit a district court from imposing a similar geographic restriction on a non-Tier III offender under the discretionary authority granted by NRS 176A.400(1)(c)(3).
Key quotations
“Packingham therefore assists us in holding that the First Amendment protects the right of court supervisees, including Aldape, to access the internet.” (10)
“Because NRS 176A.410(1)(q) is both mandatory and restricts more speech than necessary to serve the government's interest with no tailoring mechanism, and the State fails its burden to show otherwise, it is facially unconstitutional under the First Amendment.” (16)
“Because Aldape's appellate waiver did not preclude challenges to the conditions of his probation, and because subsection (q) is facially unconstitutional, we reverse and remand to the district court to remove condition 15, restricting Aldape's access to the internet and internet-connected devices, from the judgment of conviction.” (20)
Factual background
Aldape pleaded guilty pursuant to North Carolina v. Alford to two counts of attempted lewdness with a child under 14 involving his step-granddaughter. The conduct occurred at Aldape's home and did not involve other children or the internet. The district court imposed a suspended aggregate prison term and probation, including a mandatory condition prohibiting internet access and possession of internet-capable devices and a separate condition restricting access to places primarily serving children.
Procedural history
Aldape pleaded guilty under North Carolina v. Alford to two counts of attempted lewdness with a child under 14. The district court imposed probation and several conditions, including a mandatory internet ban under NRS 176A.410(1)(q) and a geographic restriction under NRS 176A.400(1)(c)(3). After the district court rejected Aldape's challenges, he timely appealed. The Nevada Supreme Court held that the appeal waiver did not encompass sentencing or probation conditions, invalidated the mandatory internet ban, and affirmed the remaining challenged condition.
Remand instructions
Remand to the district court to remove special condition 15, restricting Aldape's access to the internet and internet-connected devices, from the judgment of conviction. The conviction and special condition 11 are otherwise affirmed.