State v. Albright

• Decision Date: 11 December 2018
• Docket Number: No. M2016-01217-SC-R11-CD,M2016-01217-SC-R11-CD
• Citation: 564 S.W.3d 809
• Parties: STATE of Tennessee v. Westley A. ALBRIGHT
• Court: Tennessee Supreme Court

564 S.W.3d 809

STATE of Tennessee

v.Westley A. ALBRIGHT

No. M2016-01217-SC-R11-CD

Supreme Court of Tennessee, AT NASHVILLE.

February 7, 2018 Session

FILED December 11, 2018

Jeffrey S. Bivins, C.J.

The Defendant, Westley A. Albright, pled nolo contendere to one count of solicitation of a minor, a Class E felony, and was placed on judicial diversion, with a one-year probationary term. As part of his plea-agreement, the Defendant was required to register as a sex offender and to participate in sex offender treatment. After the Defendant was discharged from his treatment program for noncompliance, the Defendant’s probation officer filed a Diversion Violation Report. Following a hearing, the trial court revoked the Defendant’s diversion, adjudicated the Defendant guilty, extended the Defendant’s probation by six months, and ordered the Defendant to attend and complete sex offender therapy. The Defendant appealed, and the Court of Criminal Appeals affirmed. We granted the Defendant’s application for permission to appeal in order to determine whether the Defendant’s due process rights were violated because he was not specifically informed in conjunction with his nolo contendere plea that his judicial diversion could be revoked if he refused to admit certain facts during his sex offender treatment. We hold that due process does not require a sex offender placed on judicial diversion with a probationary period to be informed specifically in conjunction with his plea that his judicial diversion and probation may be revoked if he is discharged from sex offender treatment due to his refusal to acknowledge that he committed the elements of the offense to which he pled. Accordingly, we affirm the courts below.

Factual and Procedural Background

In February 2013, an undercover officer swore out an affidavit of complaint alleging that he had been communicating with the Defendant over the Internet for approximately two months. The officer alleged that the Defendant believed the officer was a mother with a thirteen-year-old daughter and that the Defendant "expressed many times that he wanted to have sex with both." The officer also alleged that the Defendant had requested that he be sent naked photographs of the mother and daughter via email. According to the affidavit, the officer set up a meeting and, when the Defendant showed up as arranged, the Defendant admitted to their communications. The officer also stated that the Defendant claimed that he was at the meeting only to get the mother’s license plate number.

On the basis of this affidavit, the Defendant was arrested and subsequently indicted on two counts of solicitation of a minor. The Defendant entered into a plea-agreement with the State and, in September 2015, pled nolo contendere to one count of solicitation of a minor, a Class E felony.¹ The other count was dismissed. In conjunction with his plea, the Defendant signed a written plea document providing, "I understand that if I plead NOLO CONTENDERE the court will find me guilty pursuant to the plea agreement set forth above." The Defendant was placed on judicial diversion,² with a probation term of one year, including the requirements that he register as a sex offender and that he "abide by the Specialized Probation Conditions for Sex Offenders as adopted by the Tennessee Department of Correction." The specialized conditions included the following:

3. I will attend, participate in, and pay for treatment or counseling with an approved treatment provider as deemed necessary by the Board, the Court, or my [Probation] Officer. I will continue in such treatment as instructed for the duration of supervision unless my treatment provider, in consultation with my Officer, instructs me in writing that I have satisfactorily completed treatment.

On the same day as his plea hearing, the Defendant signed the documents reflecting the conditions of his probation, and, additionally, wrote his initials next to each of the specialized probation conditions.

The Defendant began his participation in the mandated sex offender treatment program with an assessment in November 2015. The Defendant then began attending group therapy sessions. According to the Defendant’s therapist, James Berry Welch, the Defendant "attended all of his scheduled treatment groups." On January 6, 2016, the Defendant and Mr. Welch worked out a written treatment plan which the Defendant signed ("the Treatment Plan"). The Treatment Plan included as an objective that the Defendant "admit to 100 percent elements of the offense as described by his victims through the official victims' statement."

In spite of this objective agreed to by the Defendant, the Defendant continued to maintain during therapy that he had harbored no criminal intent during his communications with the undercover officer. According to Mr. Welch, the Defendant claimed that his reason for meeting the woman with whom he believed he was communicating

was he had been stalked by somebody, a friend. Somebody had told him about the website, Motherless.com, which is a notorious website for incest. He went on that website and was looking for people who he thought was this woman who was stalking him in order to gain enough information to confront her on that. And he met with the police officer so that—or he went to meet with the police officer and agreed to meet with the police officer so he could get a license plate number off the vehicle to turn that over to authorities because of this person stalking him.

Mr. Welch discharged the Defendant from therapy for non-compliance on February 17, 2016. On February 19, 2016, the Defendant filed a motion seeking to be relieved from certain conditions of his probation, asserting that "a confession should not be a condition of [his] probation" and that he "does not wish for his probation to be violated merely because he has refused to admit facts which he asserts are not true."

The Defendant’s probation officer, Jessica D. Forbes, filed a Diversion Violation Report on February 26, 2016. The factual basis for the alleged violation was that the Defendant "was discharged from sex offender specific treatment for noncompliance with treatment goals."

An evidentiary hearing ensued. Ms. Forbes testified that she filed the Violation Report after receiving a letter from the Defendant’s treatment provider "indicating that [the Defendant] was no longer enrolled in treatment at that time" ("the Discharge Letter"). Although a copy of the Discharge Letter was admitted into evidence at the hearing, the record before this Court does not contain a copy of the letter.

Mr. Welch also testified, explaining that he discharged the Defendant from his therapy program because he failed to comply with his Treatment Plan, including the necessity that the Defendant be "honest." Mr. Welch stated that, "[b]asically all of the evidence I had indicates that [the Defendant] had been lying to me."

Shown the Discharge Letter on cross-examination, Mr. Welch agreed with its statement that, "[a]though [the Defendant] appeared to be in compliance with supervision and attended all required treatment groups, he was not able to give a credible statement of responsibility for his offense of conviction." Mr. Welch explained that, although the Defendant had admitted to exchanging emails with the undercover officer and admitted to attending the meeting arranged by the undercover officer, the Defendant "was not credible in his intentions or his reason or rationale for why" he had participated in those activities. In short, the Defendant refused to admit in therapy that he had engaged in any conduct that included any illegal sexual behavior or intent. Mr. Welch explained that, if the Defendant refused to admit that he had engaged in soliciting a minor, then treatment aimed at remedying such behavior was pointless. Asked specifically on cross-examination, "that’s why he was discharged from your program is because he wouldn't admit that he had a sex problem," Mr. Welch responded, "Yes."

After the hearing, the trial judge denied the Defendant’s motion to be relieved from certain conditions of probation and found that the Defendant had violated the terms of his judicial diversion. The trial court’s written order includes the following findings of fact:

4. The Defendant followed all directives and participated in the [approved treatment] program by attending all meetings and complying with all directions. However, the Defendant’s Sexual Offender Treatment Provider, J. Barry Welch, made the decision to discharge the Defendant from the program because the determination was made by him that the Defendant was not truthful regarding his intentions for committing the crime that he was convicted of committing. Specifically, Mr. Welch wrote a letter to the Defendant’s probation officer which stated in part, "Although he appeared to be in compliance with supervision and attended all required treatment groups, he was not able to give a credible statement of responsibility for his offense of conviction. "

....

6. This Court believes that the Defendant has in fact been dishonest with his Sexual Offender Treatment Provider regarding his intentions for committing the offense of solicitation of a minor. The Court believes that Defendant has not been truthful about his motivations for committing the crime.

The trial court revoked the Defendant’s judicial diversion and entered an adjudication of guilt. The court allowed the Defendant to remain on probation rather than require a period of incarceration. However, the court extended the Defendant’s probation for an additional six months and ordered the Defendant "to comply with and fulfill the ‘Specialized Probation Conditions for Sex Offenders .’ "

The Defendant appealed to the Court of Criminal Appeals, which affirmed the trial court’s judgment. State v. Albright, No. M2016-01217-CCA-R3-CD, 2017 WL 2179955, at *10 (Tenn. Crim. App. May 16, 2017), perm. app. granted (Tenn. Sept. 21, 2017). We granted the...