State v. Christopher Lynn Moore

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 20, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP970-CR Cir. Ct. No. 2018CF154

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CHRISTOPHER LYNN MOORE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Marinette County: JAMES A. MORRISON, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Christopher Moore appeals from a drug conviction
and an order denying, in part, his postconviction motion to clarify or modify a
No. 2020AP970-CR

condition of his extended supervision. He challenges a condition of his
supervision requiring him to obtain preapproval from his probation agent before
using prescription drugs. We affirm.

BACKGROUND

¶2 Based upon numerous items seized during a traffic stop, the State
charged Moore with one count of possession with intent to deliver cocaine, one
count of possession with intent to deliver ecstasy, and one count of possession of
drug paraphernalia, each as a repeat offender and as a second or subsequent
offense. Moore eventually pleaded no contest to the count of possession with
intent to deliver cocaine, in exchange for the dismissal of the other counts as
read-in offenses, dropping the sentence enhancers, and the dismissal of a charge in
another case.

¶3 The circuit court sentenced Moore to five years’ initial confinement
and five years’ extended supervision. When imposing conditions for Moore’s
extended supervision, the court stated:

Absolute sobriety, no alcohol, no drugs, even legal drugs.
The only exception to that will be legal drugs that have
been prescribed by your physician and that are taken
pursuant to the prescription and only after the agent
approves. If you happen to live anywhere in the world
where THC is legal, it is illegal in Wisconsin, and
therefore, you may not use it.

.…

It’s illegal here. It’s illegal today. So even if they legalize
it tomorrow, it’s illegal to you for the rest of your sentence,
no matter where in the universe you live. If you need to
take a prescription medication, if, for instance, you might
have prescription medication directed as part of a—as part
of a treatment program, you can do that, but only if your
agent approves in advance.

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The judgment of conviction memorialized this condition of extended supervision
with the notation: “No alcohol, no illegal or legal drugs except with a valid
prescription by Dr. and agent approved.”

¶4 Moore moved to modify or clarify the condition that he obtain
preapproval for “legal drugs.” He claimed that the preapproval condition
represented an erroneous exercise of discretion and violated his Eighth
Amendment right against cruel and unusual punishment because it was overly
broad. Moore argued that the condition, as written, would prohibit things such as
drinking a cup of green tea without first calling a doctor and his agent, and it
would prevent medical personnel from administering epinephrine in response to an
allergic reaction. Moore proposed that the condition be reworded to state: “No
alcohol, no illegal drugs, no marijuana, no reasonably abusive prescription
medication without a valid prescription and approval by the agent; however,
medically necessary drugs can be used in time of emergency.”

¶5 The circuit court granted the motion in part. At the postconviction
hearing, the court clarified:

What I always say and what I intend to say is that he may
not use any alcohol, any illegal drugs, including marijuana,
whether it’s legal in some other state or not, it’s illegal for
him; or he may not use any prescription medication except
pursuant to a valid prescription, taken as prescribed, and
with the advance approval of his agent, the only exception
being stuff he gets in the hospital when he’s unconscious.
That’s what I always say.

The court agreed that the preapproval condition for “legal drugs” could be
modified in conformity with the court’s revised wording at the postconviction
hearing. The court also clarified that the preapproval condition did not apply to
caffeine. The court subsequently entered an order directing that the judgment of

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No. 2020AP970-CR

conviction be amended to state: “No alcohol, no illegal drugs, no marijuana, no
prescription drugs without advance approval of an agent and pursuant to a doctor’s
prescription.” However, the court refused to further modify the preapproval
condition by limiting it to “reasonably abusive prescription medication.”

¶6 Moore now appeals. He contends that the amended condition of
supervision still represents an erroneous exercise of discretion and a violation of
the Eighth Amendment because it requires preapproval for what he deems are
“non-abusive prescription drugs” and “life-saving emergency drugs.”

DISCUSSION

¶7 As a threshold matter, we disagree with Moore’s characterization of
the preapproval condition of his supervision as applying to “life-saving emergency
drugs.” Many prescription drugs are used to treat potentially life-threatening
conditions, and thus could be viewed as “life-saving.” However, medical
personnel issue written prescriptions for drugs to patients in advance of, not in
response to, an emergency situation. Drugs administered by medical personnel in
an emergency situation are not obtained or used by prescription, and they are
therefore outside the scope of the preapproval condition at issue here. Any other
interpretation of the preapproval condition would be absurd. See State v. Lo, 228
Wis. 2d 531, 537, 599 N.W.2d 659 (Ct. App. 1999) (conditions of supervision
should be given “commonsense” constructions). We therefore limit our discussion
below to whether requiring preapproval for what Moore refers to as “non-abusive
prescription drugs” represents an erroneous exercise of discretion or a violation of
the Eighth Amendment.

¶8 A circuit court has wide discretion to impose “reasonable and
appropriate” conditions of supervision. State v. Stewart, 2006 WI App 67, ¶11,

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No. 2020AP970-CR

291 Wis. 2d 480, 713 N.W.2d 165. We review the reasonableness of such
conditions under the erroneous exercise of discretion standard, “measured by how
well they serve their objectives: rehabilitation and protection of the state and
community interest.” Id. In addition, we will independently determine whether a
particular condition violates a defendant’s constitutional rights. Id., ¶12.

¶9 Moore first contends the preapproval condition imposed by the
circuit court is neither reasonable nor appropriate. He argues that requiring an
agent’s preapproval for his use of non-abusive prescription drugs does not further
the goal of rehabilitation because he was not charged with abusing such drugs. He
further asserts that the public would have no need to be protected from his use of
non-abusive prescription drugs. We disagree with both points.

¶10 A condition that would assist the supervised individual “in
conforming his or her conduct to the law” is reasonably related to both the
rehabilitation of the offender and the protection of the public. State v. Oakley,
2001 WI 103, ¶¶18-21, 245 Wis. 2d 447, 629 N.W.2d 200. Here, the read-in
offenses and Moore’s extensive criminal history showed that Moore had been
selling more than one type of illegal drug and that he was also using illegal drugs
himself. Moore also admitted to both presentence investigation report authors
that that he had used and sometimes abused numerous legal intoxicating
substances in the past—including alcohol, tobacco, and prescription pills. It is not
unreasonably “theoretical,” as Moore contends, to consider that Moore might turn
to selling or trading prescription drugs in an attempt to replace his lost income
stream, or to continue to feed his own drug habit by abusing prescription drugs.

¶11 Moreover, we are not persuaded the term “non-abusive prescription
drugs” is useful, because any prescription drug could be abused if taken in

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No. 2020AP970-CR

excessive quantities, or if used by a person to whom it was not prescribed or to
whom it was prescribed based upon invented or exaggerated ailments. Moore’s
agent would be in a position to observe whether Moore was, in fact, acting in
conformity with any claimed ailments for which he sought prescriptions. In short,
requiring Moore to obtain preapproval for prescription drugs is a reasonable and
appropriate measure to ensure that Moore can obtain and use only those
prescriptions that truly meet his medical needs and that he is unlikely to sell, trade,
or abuse himself.

¶12 Moore next contends that requiring him to obtain agent approval
before using prescription drugs constitutes a “cruel and unusual punishment” that
could adversely impact his health. See U.S. CONST. amend. VIII. He cites no case
in which a similar preapproval condition has been found unconstitutional,
however, and he provides no argument as to how the preapproval condition here
would qualify as “punitive” under the intents-effects tests used to evaluate Eighth
Amendment claims. See State v. Muldrow, 2018 WI 52, ¶¶30-31, 381 Wis. 2d
492, 912 N.W.2d 74. Instead, Moore argues that the condition is cruel and
unusual because it is “grossly disproportionate to the severity of the crime” and
“so excessive and unusual … as to shock public sentiment.”

¶13 The disproportionality test Moore relies upon is generally used to
determine whether the length of a sentence is unduly harsh or unconscionable. See
State v. Ninham, 2011 WI 33, ¶85, 333 Wis. 2d 335, 797 N.W.2d 451. Again,
Moore has cited no case applying the disproportionality test to a condition of
probation in the context of an Eighth Amendment claim. Even if the
disproportionality test could be applied to a condition of probation, we have
already explained why the preapproval condition at issue here was reasonable and
appropriate. For the same reasons, we do not find it to be a disproportionate

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No. 2020AP970-CR

response to Moore’s conviction for possession with intent to deliver cocaine, in
conjunction with the additional read-in offenses and Moore’s criminal history. We
conclude the circuit court properly denied Moore’s Eighth Amendment claim, as
well as his challenge to the court’s exercise of its discretion.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2019-20).

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