State v. Gleason

   NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
   as well as formal revision before publication in the Vermont Reports.
   Readers are requested to notify the Reporter of Decisions, Vermont Supreme
   Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
   that corrections may be made before this opinion goes to press.
 
 
                                   No. 87-384
 
 
   State of Vermont                             Supreme Court
 
                                                On Appeal from
        v.                                      District Court of Vermont,
                                                Unit No. 3, Caledonia Circuit
 
   Myron Gleason                                June Term, 1989
 
 
 
   Dean Pineles, J.
 
   Robert M. Butterfield, Caledonia County Deputy State's Attorney,
     St. Johnsbury, for plaintiff-appellee
 
   Walter M. Morris, Jr., Defender General, and Henry Hinton, Appellate
     Defender, Montpelier, and Robert Appel, Public Defender, St. Johnsbury,
     for defendant-appellant
 
 
   PRESENT:  Allen, C.J., Peck, Dooley and Morse, JJ., and Keyser, J. (Ret.),
             Specially Assigned
 
 
        ALLEN, C.J.   Defendant appeals from the order of the district court
   revoking his probation and imposing an underlying sentence following his
   conviction for the misdemeanor offense of lewdness.  13 V.S.A. { 2632(a)(8).
   We affirm.
        The trial court accepted defendant's plea of nolo contendere, issued a
   suspended sentence of one to three months, and placed defendant on pro-
   bation.  In addition to the standard conditions, the court imposed the
   special condition, No. 21, that defendant "continue with family counseling
   at Northeast Kingdom Mental Health."  Approximately seven months after the
   imposition of conditions, defendant's probation officer filed a complaint
   alleging that defendant had violated two of the standard conditions (FN1)
   and the special condition of his probation.  At the probation violation
   hearing, the probation officer testified that, due in part to defendant's 
   1973 felony sexual offense conviction, she referred defendant to a sexual 
   offender's treatment program.  The probation officer stated that defendant 
   had refused to discuss any sex-related issues or the sexual offense
   convictions that had brought him before the court.
        Roger Putnam, a licensed psychologist with Northeast Kingdom Mental
   Health (NEKMH), had been counseling defendant for over two years.  Mr.
   Putnam testified that defendant declined to discuss his sexuality or the
   history of that sexuality.  The psychologist stated that defendant had "not
   addressed the issue in any way with me in a meaningful way and this pattern
   of massive denial concerns me for his safe[ty] and for the community."  In
   conclusion, Mr. Putnam opined that defendant presented a high risk of re-
   peating some kind of sexually deviant behavior if he did not receive treat-
   ment for his "sexual confusion."
        The court found that defendant had violated conditions 8 and 21.  To
   allow defendant to continue probation, the court modified condition 21
   (21(a)) to require defendant to "discuss issues surrounding sexual behavior
   and sexual offenses with Roger Putnam at NEKMH twice per month."  The modi-
   fication of condition 21 followed defendant's expression that he wished to
   continue counseling with Mr. Putnam and was willing to discuss all the
   issues surrounding the offenses for which he had been convicted.  Defendant
   then signed the modified probation order indicating that he understood it
   and would abide by the modified conditions.
        Approximately five months later, defendant's probation officer filed a
   second probation violation complaint alleging that defendant had violated
   conditions 8 and 21(a).  At the violation hearing on this complaint, the
   psychologist testified once again.  Mr. Putnam explained that defendant
   faithfully met his appointments and was pleasant.  However, "when the agenda
   focused on any sexual matters or issues, there was a definite change in
   attitude and cooperation in terms of discussing that particular issue."
   While defendant elaborated to some extent on his childhood history, his
   sexual knowledge, and his adolescent sexual experiences, he adamantly
   refused to engage in any meaningful dialogue regarding his sexual offense
   convictions.  Defendant also "readily dismissed" Mr. Putnam's suggestion
   that he engage in group therapy or group therapeutic work.  Mr. Putnam
   concluded that because of this "wall of denial," defendant had failed to
   achieve any insight or self-understanding regarding his sexual behavior and
   the two offenses in particular.  The psychologist testified that, as a
   result, he discontinued defendant's therapy sessions in the belief that
   additional counseling would not prove helpful.  Defendant's probation
   officer also testified that defendant declined to discuss his sexual conduct
   or treatment issues.
        The court concluded that defendant had steadfastly refused to discuss
   the issues surrounding his two sexual offense convictions and had therefore
   violated 21(a), the modified condition of probation.  The court revoked
   defendant's probation and this appeal followed.
                                       I.
        Defendant argues that special condition 21(a) is invalid on its face
   and therefore could not serve as a basis for the trial court's revocation of
   defendant's probation.  Specifically, defendant contends that the modified
   condition violated his constitutional right against self-incrimination be-
   cause it compelled him to discuss issues surrounding the two sexual offenses
   or face probation revocation and, consequently, incarceration.  Any admis-
   sions to the therapist could subsequently be revealed to the probation
   officer.  Therefore, defendant maintains that statements of the kind
   required could only be ordered with a grant of immunity because:  (1) any
   information disclosed would be available to the State for use against him in
   any future revocation proceeding; and (2) the modified condition required
   him to confess to the instant offense, to which he never admitted by virtue
   of his nolo contendere plea, and to any unknown and uncharged acts of sexual
   deviancy.
         At the outset we note that defendant raised none of these objections
   before the trial court.  The policy that requires parties to bring to the
   attention of the trial court errors capable of correction applies in the
   context of probation hearings. (FN2) See State v. Cooper, 304 N.C. 180, 183,
   282 S.E.2d 436, 439 (1981) ("defendant cannot relitigate the legality of a
   condition of probation unless he raises the issue no later than the hearing
   at which probation is revoked").  Ordinarily, this Court will not consider
   arguments raised for the first time on appeal, even when the defendant
   asserts a violation of constitutional rights.  State v. Stanislaw, No. 88-
   131, slip op. at 11-12 (Vt. Jan. 26, 1990).  Therefore, the trial court's
   decision will stand unless the revocation of defendant's probation for the
   violation of special condition 21(a) constitutes plain error.
        The nolo contendere "plea is a formal declaration that the accused does
   not contest the charge against him."  State v. Fisher, 233 Kan. 29, 34, 661 P.2d 791, 796 (1983).  Unlike a plea of guilty, a nolo contendere plea is
   not admissible in another action based on the same act.  Id.  "However, in
   the criminal proceeding then pending, the plea of nolo contendere is taken
   as a complete admission of guilt leading to a judgment of conviction."
   United States v. Williams, 642 F.2d 136, 139 (5th Cir. 1981).  When the
   court accepts a plea of nolo contendere, it has the same effect in that case
   as a plea of guilty and "authorizes the court for the purposes of the case
   to treat defendant as though he were guilty."  State v. Peck, 149 Vt. 617,
   622, 547 A.2d 1329, 1332 (1988); State v. Cox, 147 Vt. 421, 423, 519 A.2d 1144, 1145 (1986).  See 2 W. LaFave & J. Isreal, Criminal Procedure { 20.4,
   at 637 (1984 & Supp. 1989) [hereinafter LaFave & Isreal] (nolo plea has same
   effect as guilty plea in terms of its finality and as a waiver of claims un-
   related to the plea).  A conviction that results from a nolo plea stands on
   the same footing as a conviction produced by trial or guilty plea, unless a
   specific statute creates a difference.  Williams, 642 F.2d  at 139.  See
   LaFave & Isreal { 20.4, at 637 (judgment entered on plea of nolo contendere
   is a conviction and is admissible as such in other proceedings where the
   fact of conviction has legal significance, e.g., to apply habitual offender
   penalty provisions, or to claim double jeopardy in a subsequent prosecu-
   tion).  Therefore, though he did not expressly admit his guilt, defendant
   waived his right to trial, the right to be confronted with witnesses against
   him, and his privilege against self-incrimination.  V.R.Cr.P. 11(c)(4).
        While defendant's nolo plea effected a waiver of his privilege against
   self-incrimination, the waiver "relates only to the determination of guilt
   or innocence of the crime for which the plea is entered."  Cox, 147 Vt. at
   423, 519 A.2d  at 1145.  While awaiting sentencing, a defendant who has pled
   nolo contendere may invoke the privilege to prevent the possible enhancement
   of the sentence.  Id.  However, the imposition of sentence extinguishes the
   privilege against self-incrimination with respect to the crime of which the
   accused is convicted and, because of the protection against double jeopardy,
   defendant faces no threat of subsequent prosecution for the offense.
        In Minnesota v. Murphy, 465 U.S. 420, 436 (1984), the United States
   Supreme Court confronted the claim that a condition that compelled a
   defendant to participate in a sexual offender treatment program and "to be
   truthful with the probation officer in all matters" violated the Fifth
   Amendment privilege against self-incrimination.  The Supreme Court explained
   that, where questions put to a probationer were relevant to his probationary
   status and posed no realistic threat of incrimination in a separate criminal
   proceeding, "there can be no valid claim of the privilege on the ground that
   the information sought can be used in revocation proceedings" and that
   "nothing in the Federal Constitution would prevent a State from revoking
   probation for a refusal to answer that violated an express condition of
   probation."  Id. at 435-36 n.7.
        While the special condition does not contravene the Fifth and
   Fourteenth Amendments, defendant claims that 21(a) violates Chapter I,
   Article Ten of the Vermont Constitution.  An advocate has the duty to
   diligently develop and plausibly maintain the state constitutional issues it
   raises on appeal.  State v. Ryea, No. 85-497, slip op. at 3 (Vt. Jan. 5,
   1990).  Defendant offers no explanation how or why Article Ten affords
   greater protection in this instance than the Fifth Amendment.  On these
   facts we find no reason to conclude that Article Ten compels a result
   different from that reached in Minnesota v. Murphy.
        Defendant retained no privilege against self-incrimination with respect
   the lewdness conviction, and the court did not err by conditioning defend-
   ant's probation upon a discussion of the sexual issues surrounding that
   conviction.  Therefore, special condition 21(a) is not void on its face.
   Defendant's refusal to respond to inquiries regarding the sexual issues
   surrounding his convictions represented a violation of an express condition
   of probation.  Therefore, the court could revoke defendant's probation based
   on his failure, in the opinion of the therapist, to discuss meaningfully the
   relationship of the convictions to his sexuality.
        The special condition required that defendant discuss sexual issues in
   order to preserve, rather than terminate, his conditional freedom.  However,
   even if the special condition had required the disclosure of information
   that could potentially lead to revocation, such as the violation of another
   probation condition, there would exist no valid claim of the privilege
   against self-incrimination.
        We also reject defendant's contention that special condition 21(a)
   violated the privilege against self-incrimination because it required him to
   admit to uncharged acts of sexual deviancy.  If the questions asked of a
   probationer call for answers that would incriminate him in a pending or
   later criminal prosecution, the state will have created the classic penalty
   situation if it asserts, either expressly or by implication, that an
   invocation of the privilege would result in probation revocation.  Murphy,
   465 U.S.  at 435. (FN3)
        Special condition 21(a), however, required defendant to discuss matters
   relevant only to his probationary status and his prospective rehabilitation.
   The special condition did not take the extra, impermissible step of compell-
   ing defendant to choose between making incriminating statements and jeopar-
   dizing his conditional liberty by remaining silent. (FN4)  See Id.  The only
   sexual offenses that 21(a) required defendant to explore were those for
   which he had been convicted.  Aside from those convictions, special condi-
   tion 21(a) directed defendant to discuss issues surrounding his sexual
   behavior in an effort to help defendant "understand the root of [his]
   problems and perhaps control [his] behavior."  The special condition said
   nothing about defendant's freedom to decline to answer particular questions
   and contained no suggestion that his probation was conditional on the waiver
   of his privilege against self-incrimination with respect to further criminal
   prosecution.  See Id. at 437.  There was no infringement of the privilege
   against self-incrimination and the court did not err in imposing the special
   condition.
                                       II.
        In a related argument, defendant claims the court impermissibly in-
   cluded in the special condition a requirement that defendant address his
   1973 felony sexual offense conviction.  The court placed defendant on
   probation for a misdemeanor conviction based upon a single lewd act.
   Defendant asserts that, because it refers to the 1973 conviction, 21(a) is
   unrelated to the instant conviction and its inclusion as a condition of
   probation denies him the due process of law guaranteed by Chapter I, Article
   10 of the Vermont Constitution.
        28 V.S.A. { 252(b)(13) authorizes the court to impose probation
   conditions that reasonably relate to the rehabilitation of the defendant.
   Courts possess great discretion in setting the conditions of probation.
   State v. Peck, 149 Vt. at 622-23, 547 A.2d  at 1333.  To prevail on appeal,
   an aggrieved party must establish an abuse of discretion.  Compare
   Mangiapane v. State, 178 Ga. App. 836, 836, 344 S.E.2d 756, 757 (1986)
   (probation condition that defendant complete the written requirements for
   Boy Scout merit badges on subject of traffic safety, law, and citizenship
   was reasonably related to defendant's driving under influence of alcohol
   conviction) with State v. Brown, 284 S.C. 407, 411, 326 S.E.2d 410, 412
   (1985) (per curiam) (court could not condition the probation of defendants
   convicted of first degree criminal sexual conduct upon their successful
   surgical castration).
        The court ordered as a condition of probation counseling regarding a
   conviction involving a similar offense, even though the conviction was
   twelve years old at the time of the commission of the instant offense.
   Completion of counseling with a psychologist is reasonably related to the
   crime of lewdness.  Where the prior conviction also involved a crime of a
   sexual nature, the court could reasonably include it in the counseling
   program in an effort to enable defendant to understand his sexual mis-
   behavior.  See In re Martinez, 86 Cal. App. 3d 577, 581, 150 Cal. Rptr. 366, 369 (1978) (where on its face, the prohibition against defendant's
   future possession of dangerous weapons was not related to defendant's
   instant battery conviction, the individual's propensities "as manifested by
   the present offense and past behavior, may justify such a condition in order
   to deter future criminality") (emphasis in original).  The probation officer
   and the psychologist testified, and the court agreed, that the public would
   be best protected if defendant could learn to control his sexual behavior.
   The court believed that analysis of a similar conviction might help defend-
   ant understand his sexuality and directed him to examine it with the help of
   the psychologist.  The court did not abuse its discretion by requiring
   discussion of the sexual issues relevant to the 1973 conviction.  See Peck,
   149 Vt. at 622-23, 547 A.2d  at 1333 (where defendant charged with lewd and
   lascivious conduct involving a child under the age of sixteen pled nolo
   contendere to simple assault, the court could condition probation on the
   completion of counseling in a sexual offender's group because the assault
   was of a sexual nature).
                                      III.
        Defendant argues that the trial court unconstitutionally delegated its
   judicial authority by allowing the probation officer to modify the plain
   meaning of special condition 21(a) and thereby violated Chapter II, { 5 of
   the Vermont Constitution.  Defendant did not raise this argument before the
   trial court and we decline to consider it on appeal.  State v. Stanislaw,
   slip op. at 11-12.
                                       IV.
         Defendant claims that trial court erred by ruling that the special
   condition afforded defendant fair notice of the probation requirements, the
   violation of which could result in revocation.  We disagree.
        Due process requires that the defendant receive "fair notice as to what
   acts may constitute a violation of his probation, thereby subjecting him to
   loss of liberty."  Peck, 149 Vt. at 619, 547 A.2d  at 1331.  An offender
   placed on probation must be given a certificate explicitly setting forth the
   conditions of release.  28 V.S.A. { 252(c).  The instructions and directions
   given to a defendant by a probation officer or the court can also serve to
   provide fair notice.  Peck, 149 Vt. at 619-20, 547 A.2d  at 1331.  The
   court's findings will stand if the record contains any credible evidence
   that fairly and reasonably tends to support them.  Id. at 620, 547 A.2d  at
   1331.
        The record contains ample support for the finding that defendant re-
   ceived notice sufficient to satisfy due process requirements.  According to
   condition 8, defendant agreed to participate fully in any program to which
   the court or the probation officer referred him.  The first probation
   violation hearing resulted in large measure from defendant's refusal to
   approach sexual issues in general, and the sexual ramifications of his
   misdemeanor conviction in particular.  At the first violation hearing, the
   court asked defendant if he was willing to discuss "all of the issues
   surrounding [his] sexual behavior in these particular offenses.  Defendant
   acknowledged that he was so willing.  As a result, the court modified the
   special condition and made it more explicit instead of revoking his
   probation.  Under these circumstances, the court properly determined that
   defendant had fair notice that his failure to discuss the sexual issues
   surrounding the two convictions would qualify as a probation violation.  See
   State v. Foster, ___ Vt. ___, ___, 561 A.2d 107, 109-10 (1989).
                                       V.
        Lastly, defendant argues that the trial court lacked sufficient
   evidence to find that defendant violated special condition 21(a).  "A court
   may revoke probation only after the State has established an alleged
   violation by a preponderance of the evidence."  State v. Millard, 149 Vt.
   384, 385, 543 A.2d 700, 701 (1988).   Examination of the record discloses
   sufficient evidence upon which the trial court could base its finding of a
   probation violation.  The psychologist testified he found it impossible to
   engage in any meaningful dialogue with defendant regarding the sexual
   offense convictions.  While defendant made some progress discussing  how he
   gained sexual knowledge and his adolescent sexual experiences, Mr. Putnam
   concluded that defendant had constructed a "wall of denial" around his
   sexual misbehavior and was incapable of insight into "his needs, his self
   identity, how he responded to stress, and how all that might relate to his
   sexuality."  This evidence fairly and reasonably supports the court's
   finding that defendant had violated the special condition of his probation.
   Therefore, defendant has not demonstrated the clear error necessary to
   obtain a reversal on appeal.  Peck, 149 Vt. at 620, 547 A.2d  at 1331.
        Affirmed.
                                           FOR THE COURT:
 
 
 
                                           Chief Justice



FN1.      The standard conditions were:  (7) You shall permit a probation
officer to visit your home or elsewhere; (8) You shall participate fully in
any program to which you may be referred by the court or your probation
officer.

FN2.      We leave open the question whether raising an issue at the
revocation hearing will preserve the issue for appeal.

FN3.      However, "a State may validly insist on answers to even
incriminating questions and hence sensibly administer its probation system,
as long as it recognizes that the required answers may not be used in a
criminal proceeding and thus eliminates the threat of incrimination."
Murphy, 465 U.S.  at 435-36 n.7.

FN4.      "[T]he State could not constitutionally carry out a threat to revoke
probation for the legitimate exercise of the Fifth Amendment privilege."
Murphy, 465 U.S.  at 438.