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Case No. Complete Title.
Kenneth Krebs. David H. Schwartz, Administrator. Division of Hearings and Appeals. Opinion Filed: June 11, Submitted on Briefs: May 9, Doyleattorney general and Pamela Mageeassistant attorney general. JUNE 11, A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. He argues that the condition of probation requiring him to discuss and receive approval from his probation agent before he engaged in an intimate relationship with an adult female was unconstitutional.
We affirm the revocation. On March 22,Krebs was convicted of first-degree sexual assault of his daughter. He received a twenty-year imposed and stayed prison term and was instead placed on probation for twenty years, with a variety of conditions.
Krebs ed and agreed to follow all court-ordered conditions of probation as well as the probation rules outlined by his agent. Throughout his probation term, Krebs was cited for various violations of the conditions of his probation. From October 19 through December 5,Krebs was in custody to allow further investigation of those alleged violations. He was warned that any further violations would result in revocation. On January 12,Krebs was unsuccessfully discharged from the program due to his negative and disruptive behavior.
Thereafter, Krebs was served with a notice of violation of his probation and was also notified that the Department of Corrections was recommending revocation of his probation. The notice cited five violations of his rules of probation, all of which Krebs admitted to in the alternative revocation agreement.
After a revocation hearing, the division revoked his probation. The circuit court denied the writ.
Krebs appeals. See Von Arx v. SchwarzWis. Our review of the particular condition, then, examines both its reasonableness and its breadth. See id. Although this may be a constriction of a constitutional right, it is not a denial of it. We conclude that the condition is not overly broad; rather, it is no more than an inconvenience.
See State v. MillerWis. Admission of sexually deviant behavior is necessary to help prevent relapse. See, e. CarrizalesWis. Finally, the condition serves to protect the public. The public is protected because the agent can substantiate that the person is an adult. It also places a potential partner who may have children or grandchildren on alert that the probationer is a sex offender. In this case, Jaeggi also informed Georgia C.
Although Jaeggi did not mention it, we believe this condition also allows the agent to verify that the potential partner has his or her full mental faculties and protects those who are so mentally challenged that he or she cannot give informed consent to sexual relations or are subject to manipulation by the probationer because of his or her disability. Our standard of review of a revocation decision is whether the division acted arbitrarily and capriciously.
See Von ArxWis. As long as the division acted upon a rational basis and the action represented its judgment and not its will, it will not be deemed to have acted arbitrarily and capriciously. The hearing examiner summarized:. On January 26,[Krebs] was released from the Kenosha County Jail after he finished serving one year in custody required as a condition of probation….
He has been involved in sex offender treatment groups. He has been involved in individual counseling for a long period of time. He has attended AA and alcohol and drug education groups. The client had been offered further treatment and was offered placement into a halfway house on two occasions. He declined these opportunities. In December, [Krebs] ed an alternative to revocation agreement admitting violations of his supervision. As a result … [Krebs] was placed into the Thurgood Marshall Halfway House as an alternative to revocation. The record supports this finding. Furthermore, it is absurd for Krebs to presuppose that he can select which treatment program he is willing to attend and pay for.
First, the rules, which he agreed to, do not provide for such a scenario. It is conditioned on adhering to the conditions of probation as set forth in the probation agreement. His position is not that of the nonconvicted citizen. Evans77 Wis. State v. LynchWis. Krebs next maintains that the evidence does not prove that he traveled to Illinois without a valid permit or spent the night in Illinois.
He makes this argument conceding that he was never given permission to stay overnight in Illinois, but he contends that because he left after midnight and returned the next day before midnight, he was not in Illinois for two consecutive calendar days in violation of the overnight provision. We first note that Krebs admitted to these very same violations in his probation statements and the alternative revocation agreement that he ed in December In order to avoid revocation, Krebs admitted the violations, accepted a referral to the Thurgood Marshall House and agreed to complete that treatment program.
Because Krebs failed to complete the program, he was subject to revocation again. The incriminating statements may be used against him in the revocation proceedings to prove the violations. See CarrizalesWis. However, Jaeggi, who represented the DOC, presented more than just the alternative to revocation agreement. You must spend every night at your approved residence, unless you have received approval in advance from your agent to stay elsewhere.
Travel at any other time requires advance approval from the probation agent. Essentially, the probationer is to be available to the agent at anytime. In addition, the probationer is to report to the agent for any scheduled or unscheduled appointments. Krebs was out overnight in direct contravention of the rules and purpose of probation. By the Court.
You shall make every effort to accept the opportunities and counseling offered by supervision.
You shall make yourself available for searches or tests … or search of your residence or any property under your control. You shall not leave the State of Wisconsin unless you get approval and a travel permit in advance from your agent. Another alternative would be to require that the probationer spend so many consecutive hours in his or her residence per day.Sex dating in Krebs
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