State v. Mace

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. 89-166


State of Vermont                             Supreme Court

     v.                                      On Appeal from
                                             District Court of Vermont,
Robert D. Mace                               Unit No. 3, Orange Circuit

                                             March Term, 1990


Linda Levitt, J.

Jeffrey L. Amestoy, Attorney General, Montpelier, and Donal F. Hartman,
   Assistant Attorney General, Waterbury, for plaintiff-appellee

Walter M. Morris, Jr., Defender General, and William A. Nelson, Appellate
   Defender, Montpelier, for defendant-appellant


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.


     GIBSON, J.   Defendant Robert Mace appeals from an order of the
district court finding him in violation of his probation and sentencing him
to sixty days of a previously suspended one-to-five-year sentence.  We
affirm.
                                    I.
     In July of 1987, defendant was charged with sexually assaulting his
fourteen-year-old stepdaughter.  Pursuant to a plea agreement, he pled
guilty in March of 1988 to an amended charge of lewd or lascivious conduct
with a child.  The court suspended a one-to-five-year sentence, and imposed
an order of probation.  Referring to the suspended sentence and probation
conditions, the court stated,
            And the conditions are to be taken very seriously.
          The only reason I'm going this way is to give you and
          your family a shot at doing this successfully.  And I
          would expect that you would participate with some
          enthusiasm.  And I think that either myself or any other
          judge, were you not to do so, would view it very
          seriously.  And you'd probably be looking at a straight
          1 to 5 on a violation of those conditions.
In May of 1988, defendant signed a probation agreement that included the
following provision: "You shall attend, participate, and complete the sexual
therapy program at Orange County Mental Health in Randolph as directed by
[your therapist] and approved by your probation officer."
     On December 7, 1988, defendant's therapist and parole officer informed
defendant that his continuing denial of having had sexual intercourse with
his stepdaughter was interfering with the successful completion of his
therapy.  Defendant admitted that he had sexually molested his stepdaughter,
but denied having had sexual intercourse with her and stated that he would
never admit to having done so.  As a result, defendant's probation officer
cited defendant for a violation of probation effective December 12, 1988.
     At subsequent hearings, the trial court found that defendant had
violated the probation condition requiring that he complete the sexual
therapy program, and sentenced him to serve sixty days of the previously
suspended sentence.  The sentence was stayed pending appeal.  On appeal,
defendant argues that the order revoking his probation for refusing to admit
to a crime that he denied committing violated his due process right to fair
notice of the conditions of his probation, his privilege against self-
incrimination, and his First Amendment right against the coerced expression
of belief.
                                    II.
     Defendant first contends that because his probation agreement neither
explicitly nor implicitly required that he admit having had sexual inter-
course with his stepdaughter, he had no fair notice that his probation
could be revoked based on his refusal to make such an admission.  We
disagree.
     Despite defendant's attempts to distinguish the case, State v. Peck,
149 Vt. 617, 547 A.2d 1329 (1988) is dispositive of this issue.  In Peck, as
the result of a plea agreement, the defendant pled nolo contendere to a
charge of simple assault, which had been amended from an original charge of
committing a lewd or lascivious act with a child.  The defendant signed a
probation agreement that included a provision requiring him "to participate
in and complete mental health counseling to the full satisfaction of his
probation officer."  Id. at 618, 547 A.2d  at 1330.  The probation officer
later directed him to participate in a sex offender's counseling group,
where he was told that he would have to take responsibility for past conduct
in order to complete the program successfully.  The defendant attended the
group for six months but continually refused to admit having committed any
sexual offense; as a result, he was terminated from the group and cited for
a violation of probation.
     In affirming the trial court's conclusion that the defendant had
violated his probation agreement, we stated that "[f]air notice can . . . be
provided by the instructions and directions given to defendant by his or her
probation officer," and that the directions provided by the probation
officer in that case constituted fair notice to defendant.  Id. at 619-20,
547 A.2d  at 1331.  We also noted that there was no danger of forcing
defendant to admit to an offense he had not committed because the
presentence investigation report contained evidence that he had admitted
having sexual contact with the victim.  Id. at 621, 547 A.2d  at 1331-32.
     Defendant attempts to distinguish Peck in two ways.  First, he
maintains that in Peck the same judge who imposed the probation conditions
sat at the revocation hearing and thus was able to determine that the de-
fendant had fair notice that his conduct violated the conditions.  According
to defendant, in the instant case, the judge who revoked probation was not
the same judge who had imposed probation, and, therefore, was unable to
determine that defendant had fair warning that refusing to acknowledge
certain acts would constitute a probation violation.  This argument is
without merit.  The Peck opinion does not indicate whether the same judge
sat at both the sentencing and revocation of probation hearings; in any
event, there is no requirement that the judge revoking probation must be
the same judge who set the probation conditions.  In both Peck and the
instant case, the defendants agreed to probation conditions that required
them to participate in a treatment program as directed by their probation
officers.  Further, the probation officers in both cases informed the
defendants that they would have to take responsibility for their conduct in
order to complete their programs successfully, and that successful
completion of the programs was a prerequisite to satisfying the above
probation conditions.  The defendants had virtually the same notice in both
cases.
     Second, defendant argues that, unlike the defendant in Peck, he never
acknowledged committing the acts that his probation officer later required
him to acknowledge.  We disagree.  As in Peck, the trial court based its
finding of a probation violation, in part, on the fact that defendant had
admitted to the act that he later denied committing.  At the violation of
probation hearing, defendant's therapist testified that defendant had
admitted in a group therapy session to having had oral sex with his
stepdaughter on several occasions, and to telling his wife that he had had
intercourse with his stepdaughter.  Moreover, the victim's own statement
made at the time of the investigation also indicated that defendant had had
sexual intercourse with her.  The court stated that it believed that
defendant had truthfully admitted to his wife that he had had intercourse
with his stepdaughter and that it did not believe the testimony of defend-
ant's wife and stepdaughter at the violation hearing that sexual intercourse
had never actually occurred.  Accordingly, the court found that sexual
intercourse had occurred and that, by refusing to take responsibility for
his actions through a full disclosure of them and by not participating in
and completing the required treatment program, defendant had violated one
of his probation conditions.  We find no error.  Id. at 620, 547 A.2d  at
1331 (court's findings will stand if fairly and reasonably supported by
credible evidence).
     Defendant argues that even if he admitted to having had sexual
intercourse with his stepdaughter, the admission came after the probation
conditions were imposed.  This fact is irrelevant.  The court required
defendant to participate in rehabilitative therapy as directed by his
therapist and probation officer.  Such a condition is reasonably related to
the rehabilitation of defendant and thus lies within the discretion of the
court.  See id. at 622-23, 547 A.2d  at 1333.  If it should develop that
unreasonable demands are placed upon a defendant during therapy, the court,
in its discretion, may refuse to find a violation, and further, may order a
change in the conditions of probation, if necessary.  See State v. Gleason,
No. 87-384, slip op. at 2 (Vt. Apr. 20, 1990).
     At the violation hearing, the therapist testified that defendant was in
a state of denial regarding what had taken place with his stepdaughter, and
that he would have to come to terms with his past conduct in order to bene-
fit fully from the program.  Regardless of when defendant acknowledged
having had intercourse with his stepdaughter, with that information in mind,
his therapist and probation officer acted within the scope of the probation
conditions when they required defendant to openly admit and frankly discuss
what had occurred.  Defendant was given notice that his continued denial of
what had taken place would result in a violation of probation, which had
been granted to him with the admonition that he "participate with
enthusiasm" in the rehabilitation program.  There was no due process
violation of the fair notice requirement.  See Gleason, slip op. at 11;
State v. Foster, 151 Vt. 442, 447, 561 A.2d 107, 109-10 (1989).
                                   III.
     Defendant also contends that requiring him to admit to having had
sexual intercourse with his stepdaughter, in effect, forces him to incrim-
inate himself and coerces speech in violation of the Fifth and First
Amendments to the United States Constitution.  We disagree.  Regarding
defendant's self-incrimination argument, a defendant convicted of a related
lesser offense pursuant to a plea agreement cannot later be prosecuted for
the originally charged greater offense.  Cf. State v. Parker, 123 Vt. 369,
371, 189 A.2d 540, 541-42 (1963) (where one offense constitutes part of
another, and both stem from the same transaction, judgment of one bars
prosecution for the other).  Therefore, defendant retains no privilege
against self-incrimination with respect to his actions surrounding his
conviction for lewd or lascivious conduct with a child.  Cf. People v.
McCutcheon, 68 Ill. 2d 101, 106-07, 368 N.E.2d 886, 888-89 (1977) (on
related facts, case implies that conviction of lesser charge resulting from
plea bargain would preclude later prosecution on greater charge).
     Defendant, however, refers us to the affidavit of probable cause
accompanying the original charge, in which the investigating officer
reported that the victim had told him that her stepfather had been having
sexual intercourse with her since she was eleven.  Citing State v. Ramsay,
146 Vt. 70, 73, 499 A.2d 15, 17 (1985), defendant contends that he could
still face prosecution for having committed different sexual acts against
his stepdaughter on different days.  While this is theoretically true, we
conclude that defendant has not shown that he faces a "realistic threat of
self-incrimination."  See Minnesota v. Murphy, 465 U.S. 420, 427, 435 n.7
(1984).  The court imposed probation conditions aimed at treating defendant
for aberrant sexual behavior toward his stepdaughter.  In furtherance of
that goal, defendant was compelled to divulge and discuss his sexual conduct
with his stepdaughter.  The record makes it clear that the mental health
clinic's goal of full disclosure of this conduct is aimed at rehabilitation
and treatment, not later prosecution.
                                    IV.
     Defendant's First Amendment argument, explicitly raised for the first
time on appeal, does not reveal plain error.  See Gleason, slip op. at 4-5
(absent plain error, we will not consider issues raised for the first time
on appeal, even in the context of a probation hearing where the defendant
asserts a violation of constitutional rights).  Probation conditions may
impact upon a probationer's First Amendment rights so long as the conditions
have a reasonable nexus with rehabilitation of the defendant and protection
of the public.  See, e.g., United States v. Terrigno, 838 F.2d 371, 374
(9th Cir. 1988).  Such is the case here.
     Affirmed.






                                        FOR THE COURT:



                                        __________________________________
                                        Associate Justice