Carroll v. Com.
| Decision Date | 04 November 2010 |
| Docket Number | Record No. 091987. |
| Parties | James CARROLL v. COMMONWEALTH of Virginia. |
| Court | Virginia Supreme Court |
Clarence F. Stanback, Jr., for appellant.
Richard B. Smith, Special Assistant Attorney General (Kenneth T. Cuccinelli II, Attorney General, on brief), for appellee.
Present: HASSELL, C.J., KOONTZ, KINSER, LEMONS, GOODWYN, and MILLETTE, JJ., and CARRICO, S.J.
Opinion by Senior Justice HARRY L. CARRICO.
In this appeal, we decide whether a person charged with rape who enters an Alford plea and is placed on probation violates the terms of his probation by refusing to admit his guilt during the course of ordered treatment for sex offenders. The circuit court held that the defendant, James Carroll, was in violation of his probation for his refusal to make such an admission. The Court of Appeals of Virginia affirmed the judgment of the circuit court. We will affirm the judgment of the Court of Appeals.
The use of an Alford plea arose out of the Supreme Court's decision in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). There, the Court held as follows:
An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.
This Court explicated the Alford plea in Parson v. Carroll, 272 Va. 560, 636 S.E.2d 452 (2006). There, we stated as follows:
Based on [the] holding in Alford, the courts in this Commonwealth in the exercise of their discretion have permitted criminaldefendants who wish to avoid the consequences of a trial to plead guilty by conceding that the evidence is sufficient to convict them, while maintaining that they did not participate in the acts constituting the crimes. See e.g., Patterson v. Commonwealth, 262 Va. 301, 302 n. 1, 551 S.E.2d 332, 333 n. 1 (2001); Reid v. Commonwealth, 256 Va. 561, 563 n. 1, 506 S.E.2d 787, 788 n. 1 (1998); Zigta v. Commonwealth, 38 Va.App. 149, 151 n. 1, 562 S.E.2d 347, 348 n. 1 (2002);Perry v. Commonwealth, 33 Va.App. 410, 412-13, 533 S.E.2d 651, 652-53 (2000).
Id. at 565-66, 636 S.E.2d at 455. See also the following cases in which defendants made Alford pleas since Parson:
Malbrough v. Commonwealth, 275 Va. 163, 168, 655 S.E.2d 1, 3 (2008); Neighbors v. Commonwealth, 274 Va. 503, 506, 650 S.E.2d 514, 515 (2007).
On June 18, 2007, a grand jury in the Circuit Court of Arlington County indicted James Carroll for the rape of a child less than thirteen years of age. Code § 18.2-61. The rape occurred between 1982 and 1984, and the child was Carroll's stepdaughter, who was then twelve years old.
On September 6, 2007, Carroll and the Commonwealth's Attorney signed a plea agreement. In the document, Carroll stated that he was "going to plead guilty to the crime of Rape," although he did not "admit that [he] committed the crime to which [he was] pleading guilty," because he had "decided it [was] in [his] interest to accept the prosecutor's offer to enter into this agreement." He also stated he understood that "by pleading guilty [he] may receive the same penalties as if [he] had been convicted of the same crime after a trial by a jury or by a judge sitting without a jury."
Also on September 6, 2007, the circuit court conducted a hearing on Carroll's guilty plea. The following colloquy ensued between the court and Carroll:
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THE COURT: Tell me what an Alford plea is.
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THE COURT: Let the record reflect that the plea is made freely and voluntarily with an understanding of its nature and its consequences.
After a proffer by the prosecutor of what the evidence would have shown, the circuit court accepted Carroll's plea of guilty and convicted him of rape. Pursuant to the plea agreement, the court suspended the imposition of sentence for five years, directed that Carroll be of general good behavior, have no contact with the victim or her family, and pay court costs.
The circuit court also placed Carroll on supervised probation during the period of suspension. The court's sentencing order entered on September 20, 2007, provided that Carroll "shall comply with all the rules and requirements set by the Probation Officer" and that " [p]robation shall include any substance abuse counseling, testing, and/or treatment as prescribed by the Probation Officer."
The court informed Carroll that if, at the end of the suspension period, he had fulfilled "all these conditions, [he] can withdraw this plea [of guilty], enter a plea of guilty to assault and battery, and theCourt will impose a fine of $750 in accordance with [the plea] agreement." The case was continued until September 14, 2012, for final disposition.
On October 5, 2007, Carroll filed a motion to amend the sentencing order to provide that "[n]o sex offender treatment be prescribed or required by the Probation Officer" because the "incident occurred over 20-something years ago," there have been "no allegations"against Carroll since, and "there is no need for any treatment." The circuit court did not grant the motion and ordered that "any sex offender treatment is to be determined by the Defendant's supervising Probation Officer."
On March 6, 2008, Carroll began attending a sex-offender treatment group to which he had been assigned by his probation officer for sex offender therapy. As part of this treatment program, Carroll was required to admit his guilt to the crime of rape with which he had been charged. He refused to make the admission or otherwise cooperate and, after the therapy staff had worked with him for two months, he was terminated from the program on May 7, 2008. The prosecutor then moved for the revocation of Carroll's probation.
The circuit court held a hearing on the prosecutor's motion on June 13, 2008. Opposing the motion, Carroll argued that the requirement that he admit his guilt would be "a breach of the plea agreement ... [a]s part of an Alford plea." The court found Carroll in violation of his probation and asked defense counsel "why [Carroll] should not go to jail?" Counsel urged that Carroll be allowed to participate in individual sex offender therapy provided by Dr. Stanton E. Samenow, a psychologist who was not certified as a sex offender therapist.
The circuit court did not grant the request for individual sex offender therapy. Instead, in an order entered June 17, 2008, the court vacated the sentence imposed and suspended in the September 20, 2007 order, sentenced Carroll to five years imprisonment, with the five years suspended for a period of five years upon the "special condition" that Carroll "enter & complete sex offender treatment as directed by his Probation Officer."
Carroll then filed a petition for appeal with the Court of Appeals containing a Statement of Questions Presented reading as follows:
Carroll v. Commonwealth, 54 Va.App. 730, 737, 682 S.E.2d 92, 95 (2009).
Carroll argued the two questions quoted above and also argued that the revocation of his probation violated the terms of the plea agreement he signed with the Commonwealth. However, a majority of the Court of Appeals held that it could not "consider the plea agreement terms" because under "Rule 5A:12(c) '[o]nly questions presented in the petition for appeal will be noticed by the Court of Appeals' " and "[n]either question [presented in Carroll's petition] asks us to consider whether the trial court's decision finding that Carroll was in violation of his probation was a breach of the terms of the plea agreement." Carroll, 54 Va.App. at 737, 682 S.E.2d at 95-96.
Carroll argues here that he did ask the Court of Appeals in his Statement of the Questions Presented "to consider whether the trial court's decision finding that Appellant was in violation of his probation was a breach of the terms of the plea agreement." Quoting the definition of an Alford plea in Black's Law Dictionary 83 (9th ed.2009) as a "guilty plea that a defendant enters as part of a plea bargain, without actually admitting guilt," Carroll submits that "but for the plea bargain, manifested as a written plea agreement in this case, there is no Alford plea; they are not divisible in this case, and the elements of an Alford plea, paragraphs 5 and 15, are contained within the Plea Agreement." 1
We disagree with this argument. Obviously, there is some connection between the plea agreement and the Alford plea in this case,but Carroll failed to make the connection in his Statement of the Questions Presented. Like the requirement in our Rule 5:17(c) for assignments of error, the purpose of questions presented in the Court of Appeals is to " point out the errors with reasonable certainty in order to direct [the] court and...
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