                             THIRD DIVISION
                            MCFADDEN, C. J.,
                        DOYLE, P. J., and HODGES, J.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                   Please refer to the Supreme Court of Georgia Judicial
                   Emergency Order of March 14, 2020 for further
                   information at (https://www.gaappeals.us/rules).


                                                                     June 23, 2020




In the Court of Appeals of Georgia
 A20A0287. CHANEY v. THE STATE.

      HODGES, Judge.

      Following a jury trial, the Superior Court of Colquitt County entered a

judgment of conviction against Amanda Chaney for one count each of aggravated

assault (OCGA § 16-5-21), aggravated battery (OCGA § 16-5-24), and cruelty to

children in the first degree (OCGA § 16-5-70). Chaney appeals from the trial court’s

denial of her motion for new trial as amended, arguing that the trial court erred in

imposing a special condition of probation that Chaney “shall have no contact of any

kind, in person, or by telephone, mail, or otherwise, with ANY CHILD UNDER THE

AGE OF EIGHTEEN (18) YEARS OF AGE.” (Emphasis in original.) Because we

conclude the trial court imposed an overly broad special condition that is not
authorized under Georgia law, we vacate Special Condition of Probation 12 and

remand this case for resentencing in a manner consistent with this opinion.

      Viewed in a light most favorable to the jury’s verdict,1 evidence adduced at

trial revealed that Chaney, along with her husband, inflicted severe punishment on

her 3-year-old stepson by burning him with what appeared to be an iron, taping his

mouth shut, and keeping him locked in a room. A babysitter discovered the injuries

and called 911. The boy was transported to the hospital, where doctors discovered

burns across his abdomen, pelvic area, and back; multiple bruises on his head and

face; and a deep abrasion on his scalp.

      A Colquitt County grand jury indicted Chaney for one count each of

aggravated assault, aggravated battery, and cruelty to children in the first degree.

Chaney’s trial was moved from Colquitt County to Thomas County, and a Thomas

County jury returned verdicts of guilty against Chaney on each count. The trial court

initially sentenced Chaney to three consecutive terms of 20 years in prison.

Approximately two months later, the trial court resentenced Chaney by modifying the

sentence on Count 3 (cruelty to children) from 20 years in prison to 20 years on


      1
       See, e.g., Powell v. State, 310 Ga. App. 144 (712 SE2d 139) (2011). Chaney
does not contest the sufficiency of the evidence.

                                          2
probation, consecutive to Counts 1 and 2 (for an aggregate term of 40 years in

prison). The trial court resentenced Chaney a second time by merging Count 1

(aggravated assault) into Count 2 (aggravated battery), resulting in a sentence of 20

years in prison followed by a 20-year term of probation.

      As part of its 20-year sentence on Count 3, the trial court included Special

Condition of Probation 12, providing that Chaney “shall have no contact of any kind,

in person, or by telephone, mail, or otherwise, with ANY CHILD UNDER THE AGE

OF EIGHTEEN (18) YEARS OF AGE.”2 After the first resentencing, Chaney filed

a “motion for reconsideration of special conditions of probation” to challenge the ban

on contact with children since she had three minor biological children. She later

amended her motion for new trial to include her arguments concerning the special

condition. The trial court denied Chaney’s motion as amended, and this appeal

followed.3

      2
        In its initial resentencing, the trial court included a similar provision stating
that Chaney “is to have NO CONTACT WITH CHILDREN UNDER THE AGE OF
EIGHTEEN (18) YEARS OF AGE.” (Emphasis in original.) However, we need only
review Special Condition of Probation 12, included in the trial court’s second
resentencing.
      3
       The record indicates that Chaney’s original motion for new trial was filed on
April 23, 2010. The motion was amended on April 4, 2019, and the trial court denied
the motion on July 1, 2019. There does not appear to be any discussion in the record

                                           3
      In her sole enumeration of error, Chaney contends that the “no contact”

condition: (1) is not stated with reasonable specificity to notify Chaney of the groups

and locations she should avoid; (2) is so broadly worded that it includes groups and

locations “not rationally related to the purpose of the sentencing objective;” and (3)

effectively terminates her parental rights. In part, we agree.

      It is well settled that

      [a] trial court has broad discretion in sentencing to impose conditions
      reasonably related to the nature and circumstances of the offense and the
      rehabilitative goals of probation. But such conditions must be stated
      with reasonable specificity to afford the probationer notice of the groups
      and places he must avoid. And the conditions must not be so broadly
      worded as to encompass groups and places not rationally related to the
      purpose of the sentencing objective.


(Citation and punctuation omitted.) Grovenstein v. State, 282 Ga. App. 109, 111 (1)

(637 SE2d 821) (2006); see also Ellis v. State, 221 Ga. App. 103, 103-104 (1) (470

SE2d 495) (1996).

      (a) Overbroad Special Conditions. We have rejected as overbroad special

conditions that do not provide sufficient notice to probationers of the groups and



concerning the delay.

                                          4
places that must be avoided. See, e.g., Tyler v. State, 279 Ga. App. 809, 817-818 (4)

(632 SE2d 716) (2006), overruled in part on other grounds, Schofield v. Holsey, 281

Ga. 809, 811 (II), n. 1 (642 SE2d 56) (2007); Ellis, 221 Ga. App. at 103-104 (1). In

Tyler, we approved of a special condition of probation stating that the defendant

“shall not initiate contact with nor continue uninitiated contact with a child under the

age of 18.” 279 Ga. App. at 817 (4). However, we found that another condition

stating that the defendant “shall not be in the presence of a child under the age of 18

without the immediate presence of the supervisor who has been approved by the

treatment provider and probation officer” was improper because the condition “could

be literally applied to prohibit [the defendant] from shopping at virtually any store

without an approved supervisor accompanying him.” Id. at 818 (4). Furthermore, we

concluded that “[t]he condition[], as written, [is] susceptible of being read and applied

in ways which are not reasonably related to the sentencing objectives.” Id.

      Similarly, in Ellis, the trial court imposed special conditions that the defendant

      shall not linger, loiter, or spend time at locations where children under
      18 are present or are likely to be present. Such locations include but are
      not limited to schools, parks, playgrounds, sporting events, school bus
      stops, public swimming pools, and arcades


and

                                           5
      shall not work or volunteer for any business, organization, or activity
      that provides care to or services for children under the age of 18. Such
      businesses, organizations, and activities include but are not limited to
      schools (including driving a school bus), coaching sports/athletic teams,
      Girl or Boy Scouts, day care centers, Girls or Boys clubs, or churches.


221 Ga. App. at 103-104 (1). We recognized that “it was reasonable for the trial court

to regulate Ellis’s contact with children by imposing conditions prohibiting his

association with groups dealing with children and prohibiting his presence at certain

locations where children are present.” 221 Ga. App. at 104 (1). However, we

determined that the conditions imposed by the trial court lacked the required

specificity to provide “notice of the groups and locations he must avoid” and to

ensure that “the conditions are not so broadly worded as to encompass groups and

locations not rationally related to the purpose of the sentencing objective.” Id. at 103-

104 (1). As a result, we held that “[t]he conditions, as written, are susceptible of being

read and applied in ways which are not reasonably related to the sentencing

objectives.” Id.; see also Harrell v. State, 253 Ga. App. 440, 440-441 (1) (559 SE2d

155) (2002).

      (b) Appropriate Special Conditions. In contrast, we have approved of certain

special conditions of probation limiting contact with an individual or a particular

                                            6
cohort as long as the condition is reasonably tailored. See, e.g., Potts v. State, 207 Ga.

App. 863, 866 (3) (429 SE2d 526) (1993). In Potts, a child molestation case, we

found no abuse of discretion where the trial court imposed a special condition of

probation “prohibiting the defendant’s contact with any child under the age of 16”

because “the trial court only limited the defendant from having contact with children

under 16 years of age in volunteer activities and seeking employment which requires

regular contact with children under 16.” Id.; see also Jones v. State, 348 Ga. App.

653, 656 (3) (b) (824 SE2d 575) (2019) (approving special condition that defendant

have “no contact with the victim or his biological child” in a child molestation case);

Moody v. State, 250 Ga. App. 380, 381 (551 SE2d 772) (2001) (finding that a

condition “preventing the defendant from committing further batteries of his wife”

was “no broader than required to establish the goal of protecting the victim from

further criminal conduct” because “[t]he trial court made arrangements for [the

defendant] to visit his teenage children and also permitted him to communicate with

his wife in writing and by telephone”); Mathews v. State, 234 Ga. App. 111, 112 (506

SE2d 225) (1999) (in rape case, approving special condtion that defendant “not have

any contact with S. V., although arrangements were made for him to have supervised

visits with his children” where S. V. was the victim and the defendant’s common law

                                            7
wife); Hardman v. Hardman, 185 Ga. App. 519, 521 (5) (364 SE2d 645) (1988)

(finding no abuse of discretion in special condition that the defendant “have no

unsupervised contact with females under the age of 14; and that [defendant’s]

visitation with his granddaughter be approved by the Department of Family &

Children Services” because defendant’s crime of child molestation “involved young

girls; and that his granddaughter was involved in these matters”).

      (c) Analysis. In this case, the special condition of probation imposed by the trial

court contains no such limitations.4 First, the condition that Chaney “shall have no

contact of any kind, in person, or by telephone, mail, or otherwise, with ANY CHILD

UNDER THE AGE OF EIGHTEEN (18) YEARS OF AGE” fails to provide Chaney

“notice of the groups and places [s]he must avoid.” Ellis, 221 Ga. App. at 104 (1); see

also Grovenstein, 282 Ga. App. at 111 (1). To the contrary, the condition “could be

. . . applied to prohibit [Chaney] from shopping at virtually any store[,]” visiting any

restaurant, or literally going to any other location in which Chaney would come into

contact with the general public. Ellis, 221 Ga. App. at 104 (1); compare Mullens v.

      4
        Moreover, the transcripts of the original sentencing, the resentencing hearing,
and the motion for new trial hearing shed little light on the legal basis of the trial
court’s reasoning (outside of its observation that the crimes were particularly heinous
), although the trial court did inquire whether including “supervised” in its sentence
could address Chaney’s concerns.

                                           8
State, 289 Ga. App. 872, 873-874 (1) (658 SE2d 421) (2008) (special condition

providing that the defendant “shall have no contact, whether directly in person or

indirectly through any means of communication or through employment, volunteer

activity or otherwise with any child under the age of eighteen (18), including your

own children” tempered by statement that if the defendant has “incidental contact

with children, [the defendant] will be civil and courteous to the child and immediately

remove [himself] from the situation” and requiring the defendant to “discuss the

contact at [his] next meeting with [his] Probation Officer.”).

      Second, the trial court’s condition violates the principle that “conditions must

not be so broadly worded as to encompass groups and places not rationally related to

the purpose of the sentencing objective.” Ellis, 221 Ga. App. at 104 (1); see also

Grovenstein, 282 Ga. App. at 111 (1). Inasmuch as Chaney was convicted of cruelty

to children for the severe abuse of her 3-year-old stepson, the trial court’s broad

special condition of probation prohibiting any contact with minors, regardless of

whether the contact was initiated or uninitiated, necessarily includes “groups and

places not rationally related to the purpose of the sentencing objective.” Ellis, 221 Ga.




                                           9
App. at 104 (1). It follows that the trial court abused its discretion in imposing against

Chaney a blanket prohibition against any contact with minors.5

      In short,

      we have upheld probation conditions prohibiting a probationer from
      “being alone with any child under 18 years of age,” or “initiating contact
      with or continuing uninitiated contact with a child under the age of 18.”
      However, a probation condition that prohibits a probationer from merely
      being in the presence of any minor has been held to be overbroad
      because it could literally be interpreted to “prohibit a probationer from
      shopping at virtually any store without an approved supervisor
      accompanying [her].”


(Citations and punctuation omitted.) Laytart v. State, 301 Ga. App. 621, 624 (689

SE2d 50) (2009). Accordingly, it is clear that Georgia law does not support the kind

of universal special condition of probation, prohibiting contact with an individual or

particular cohort without limitation, imposed by the trial court in this case. As a



      5
         Broadly, citing Tyler, the State argues that it can impose a special condition
that will prevent Chaney’s contact with minors, including her own children. While
both of these assertions are true, our case law makes clear that any such condition
cannot be limitless. For example, as we have discussed, the condition in Tyler that we
approved was that “Defendant shall not initiate contact with nor continue uninitiated
contact with a child under the age of 18,” which is dissimilar to the blanket provision
in this case. (Emphasis supplied.) Id. at 817-818 (4). Of note, we rejected an overly
broad prohibition from contact with minors in Tyler. Id. at 818 (4).

                                           10
result, we vacate Special Condition of Probation 12 and remand this case for

resentencing in a manner consistent with this opinion.6

      Judgment vacated in part and case remanded for resentencing. Doyle, P. J.,

concurs, and McFadden, C.J., concurs specially




      6
        Because we conclude that the special condition is not stated with reasonable
sufficiency, we need not address Chaney’s remaining arguments.
 A20A0287. CHANEY v. THE STATE.



      MCFADDEN, Chief Judge, concurring specially.

      I agree with the majority decision to vacate the trial court’s overly broad

special condition of probation prohibiting the appellant from having contact of any

kind with any child under the age of 18 years. I write separately to clarify that

Mullens v. State, 289 Ga. App. 872 (658 SE2d 421) (2008), which is cited in the

majority opinion, is distinguishable from the instant case.

      Unlike the instant case, in which we have resolved the issue of whether the

special condition of probation is overly broad, the issue in Mullens was whether there

was sufficient evidence to support a probation revocation. Id. at 873 (1). While the

condition of probation in Mullens was similar to the condition in this case, although

it did have more terms than those in the instant case, Mullens merely held that there

was sufficient evidence to support the probation revocation and that in light of such

evidence there was no manifest abuse of discretion by the trial court in revoking

probation. Id. at 874 (1).

                                          2
