Virginia Court of Appeals Upholds Lifetime Probation With Bar on Personal Internet Use in Response to Sex Offender’s Probation Violation
In an unpublished opinion issued on December 17, 2019, the Court of Appeals of Virginia upheld the probation conditions imposed on a sex offender for probation violations, including requiring him to “remain on supervision for the rest of his life” and forbidding him from any “personal internet use.”
Galen Michael Baughman pleaded guilty to aggravated sexual assault of a child younger than 13 years old and carnal knowledge of a child between the ages of 13 and 15. He was sentenced to concurrent sentences of 20 years of incarceration with 13 years suspended and 10 years of incarceration with 3 years suspended, respectively. The court imposed a 10-year suspension period with a condition of supervised release prohibiting Baughman from having unsupervised contact with minors unless approved by his probation officer.
Baughman began exchanging phone, text and email messages with P.D., a 16-year-old boy he met at his nephew’s funeral. He did not seek permission from his probation officer to communicate with P.D. nor did he tell his probation officer about the conversations. Eventually, P.D.’s mother went through his cellphone, discovered worrying communications between him and Baughman—including advice to use Kick or Snapchat to conceal the content of messages from parents and police. She notified the state police.
The trial court held a revocation hearing focusing on whether Baughman was “grooming” P.D. for future sexual relations. The court determined that he had “groomed” P.D. and revoked his probation and the suspension of sentences: The court then imposed an additional year of incarceration and suspended the balance of his sentence, placing him on indefinite probation—including as a condition of probation “no personal internet use.”
With the assistance of attorneys Zachary C. Schauf of Jenner & Block LLP, Baughman appealed the conditions of probation. The court of appeals rejected the assertion that a ban on personal internet use violated the First Amendment because Baughman failed to raise the issue in the trial court and, in fact, suggested the condition of probation as a way to ensure he could use the internet for business purposes. The court did note that it was within the trial court’s power to prohibit internet use as a condition of probation.
The court of appeals also rejected Baughman’s assertion that the trial court could not extend his sentence to life on probation. It held that the sentence was not “extended” at all, but was a new sentence following revocation of the previously imposed sentence and the court could impose the new suspended sentence “for a reasonable time, having due regard to the gravity of the offense, without regard to the maximum period for which the defendant might have been sentenced.” Thus, the trial court had the authority to suspend Baughman’s sentence for life. Therefore, the trial court was affirmed. See: Baughman v. Commonwealth, Va. App., Case No. 0346-18-4
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