State v. Coleman

EO.92-206; 160 Vt. 638; 632 A.2d 21        


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 92-206

                              MARCH TERM, 1993


 State of Vermont                  }          APPEALED FROM:
                                   }
                                   }
      v.                           }          District Court of Vermont,
                                   }          Unit No. 2, Addison Circuit
                                   }
 Lawrence J. Coleman               }
                                   }          DOCKET NO. 1145-12-90Ancr


              In the above entitled cause the Clerk will enter:

      Defendant Lawrence Coleman appeals from a district court order that
 denied his motion to clarify or modify his conditions of probation.  We
 affirm.

      Defendant was charged with sexually assaulting a minor under the age of
 sixteen.  He entered into a plea agreement with the State in which he agreed
 to plead nolo contendere to a reduced charge of lewdness in violation of 13
 V.S.A. { 2632 (a)(8).  The plea was entered pursuant to North Carolina v.
 Alford, 400 U.S. 25 (1970), which held that a criminal defendant may volun-
 tarily assent to a charge while maintaining innocence.  Id. at 37.  The
 State agreed to recommend a suspended sentence of zero-to-six months and
 continued counseling with a family therapist, Dr. Lenore Black, until she
 felt it was no longer necessary.

      At the change-of-plea hearing, the judge informed defendant that a nolo
 contendere plea has the same effect as a guilty plea except that it cannot
 be used as evidence in a subsequent case.  Defendant replied that he under-
 stood, and then formally pleaded nolo.  His attorney stated for the court
 record that the plea was made pursuant to North Carolina v. Alford.  The
 court sentenced defendant to the terms provided in the plea agreement, and
 imposed the "usual conditions" of probation, including condition number
 eight, which states, "You shall participate fully in any program to which
 you may be referred by the court or your probation officer."  In response,
 defense counsel noted, "The usual conditions.  I would point out he's going
 through counseling with the present counselor until the counselor deems it
 no longer necessary."  The court responded, "So imposed."  Defendant then
 signed a probation warrant imposing both condition number eight and
 condition number twenty-three, which mandated "counseling with present
 counselor, Lenore Black until she feels it is no longer necessary."

      Subsequently, Dr. Black recommended to defendant's probation officer
 that defendant's long-term treatment include group therapy for sex

 

 offenders, which she does not provide, and reported that it was
 "inappropriate to offer family therapy" to defendant at that time.  Pursuant
 to condition eight, the probation officer referred defendant to sex offender
 therapy.  Defendant refused the treatment on the ground that he would be
 compelled to admit guilt to the underlying misconduct in order to partici-
 pate in such a program.  Accordingly, a complaint alleging violation of his
 probation was filed in February 1992.

      Thereafter, defendant moved to clarify or, in the alternative, to
 modify the terms of his probation.  The court ruled that defendant could
 withdraw his plea or comply with condition eight by attending the therapy
 program to which he had been referred.  Defendant appeals, requesting that
 this court either clarify his probation conditions so that he cannot be
 compelled to participate in any program that requires an admission of guilt,
 or strike condition eight because it was not part of the plea agreement.
 The probation violation proceedings have been stayed pending this appeal.

      Defendant argues that (1) the plain meaning of his plea agreement
 excludes the possibility of sex offender therapy, (2) neither he nor the
 State intended sex offender therapy to be a condition of his probation, (3)
 the specific condition of counseling with Dr. Black excludes the possibility
 of additional counseling requirements under condition eight, (4) condition
 eight is overly broad and void for vagueness in the context of this case
 because it provides the probation officer with too much discretion, (5) the
 court violated V.R.Cr.P. 11(e)(4) by rejecting the plea agreement and
 imposing a more onerous sentence without offering defendant the opportunity
 to withdraw his plea, and (6) requiring an admission of guilt as a condition
 of probation violates his right against self-incrimination and his right to
 due process because his plea was entered pursuant to Alford.

      The State maintains that there is no provision in the agreement that
 expressly precludes the imposition of sex offender therapy and, therefore,
 defendant is not entitled to enforcement of such a condition.  We agree.
 Plea agreements are contractual in nature and are interpreted according to
 contract law.  State v. Byrne, 149 Vt. 224, 225-26, 542 A.2d 276, 277
 (1988).  The parties are entitled to rely upon the express terms of the
 agreement, State v. Parker, 155 Vt. 650, 651, 583 A.2d 1275, 1276 (mem.
 1990), and defendant may demand specific enforcement of the terms of the
 agreement.  State v. Duval, 156 Vt. 122, 125, 589 A.2d 321, 323 (1991).
 Here, there is no express provision that precludes sex offender therapy,
 however; thus, we cannot enforce such a condition.

      In any event, defendant is unable to comply with the specific condition
 to attend therapy with Dr. Black because she believes that it is presently
 inappropriate to offer defendant family therapy.  She recommends long-term
 sex offender therapy, which she does not provide.  In State v. Sanborn, we
 held that once it became impossible to implement the special condition of
 group counseling when the group went out of existence, there was no longer a
 conflict between that condition and the requirement to attend specialized
 sex offender therapy under condition eight.  155 Vt. 430, 435, 584 A.2d 1148, 1152 (1990).  As in Sanborn, it is impossible for defendant in the

 

 instant case to receive the therapy imposed under special probationary
 condition twenty-three.  Condition eight was designed, at least in part, to
 accommodate precisely the type of situation present in this case.  A court
 or a probation officer must have the flexibility to provide further treat-
 ment for a defendant when, for various reasons, treatment can no longer be
 obtained pursuant to a special probationary condition.

      We do not reach defendant's other arguments because, even if he is
 correct, the trial court's offer to allow defendant to withdraw his plea was
 a complete remedy.  To the extent that there was a misunderstanding between
 the parties or by the court in imposing condition eight in face of an Alford
 plea, the court gave defendant the benefit of the doubt. In Santobello v.
 New York, 404 U.S. 257 (1971), the United States Supreme Court ruled that
 where the prosecution violates a plea agreement, state courts have the
 discretion of deciding whether to enforce the plea agreement or to allow the
 defendant to withdraw his plea.  Id. at 263.  Here, because we hold that
 there was no agreement to exclude sex offender therapy as a condition of
 probation, we cannot impose such an agreement upon the parties.  In such
 circumstances, the court's offer to allow withdrawal of the plea was a
 complete remedy.  See State v. Loehmann, 143 Vt. 372, 377-78, 467 A.2d 118, 121 (1983) (offer to allow defendant to withdraw plea was not error; in
 absence of plea agreement, specific performance of agreement was not
 possible); cf. In re LaRose, 141 Vt. 1, 4, 442 A.2d 467, 469 (1982)
 (defendant argued that sentencing judge's comments during hearing would harm
 parole opportunities in violation of plea agreement; striking comments was
 complete remedy, so withdrawal of plea was unnecessary).  If defendant
 chooses not to withdraw his plea, however, condition eight shall be
 enforced.


      Affirmed and remanded for further proceedings, with leave to defendant
 to withdraw his nolo contendere plea if he so desires.



      MORSE, J., concurring.  I agree that this case should be remanded so
 that defendant can withdraw his nolo contendere plea, but I reach this
 result by a different route and therefore concur separately.

      By entering an Alford plea to lewd and lascivious conduct, defendant
 unequivocally expressed his desire to refrain from admitting he was a sexual
 offender.  Had the condition that he attend sex-offender group therapy
 (requiring an admission of guilt to the offense) been imposed at the time of
 the plea, the fact that the plea and the condition did not mesh would have
 become instantly apparent.  Instead, defendant agreed to an open-ended
 boilerplate condition that he "participate fully in any program to which
 [he] may be referred by the Court or [his] probation officer."

      Condition eight neither expressly included nor excluded the possibility
 of sex-offender therapy.  Thus, the provision had a latent ambiguity.  On
 its face, it says defendant may be ordered into "any program," but the
 context of the agreement -- against the background of defendant's Alford

 

 plea -- assumes an exception for programs that require admissions of guilt.
 The problem should have been apparent to the trial court and parties from
 the beginning, because it is well known that any therapy treatment begins
 with recognition of the problem, in this case, an admission of guilt.

     Instead, the Court attributes to defendant any failure to anticipate
 this inconsistency.  Defendant's interpretation of the condition is at least
 as reasonable -- and, in the context of the Alford plea, more reasonable  --
 than the State's.  I think what happened here is best described as a basic
 misunderstanding between the parties.  The problem occurred, not when
 defendant was ordered into sex offender therapy, but at the making of the
 plea agreement and the imposition of boilerplate condition eight.

      A misunderstanding in the making of the contract can be so basic that
 no contract is actually made.  See Restatement of Contracts [Second] { 20,
 at 58-59 (1981), and comments b and c, at 59-60 (there is no mutual assent
 to create a contract when the parties reasonably attach materially different
 meanings to an essential term of the agreement and neither party knows the
 other party's meaning); Konic International Corp. v. Spokane Computer
 Services, Inc., 708 P.2d 932, 935 (Idaho Ct. App. 1985) (no contract exists
 where misunderstanding between parties is "so basic and so material that any
 agreement the parties thought they had reached was merely an illusion").
 Consequently, I believe rescission of the plea agreement is the appropriate
 remedy.




                                    BY THE COURT:



                                    Frederic W. Allen, Chief Justice


                                    Ernest W. Gibson III, Associate Justice


                                    John A. Dooley, Associate Justice


                                    James L. Morse, Associate Justice


                                    Denise R. Johnson, Associate Justice
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