Carroll v. Com.

• Decision Date: 01 September 2009
• Docket Number: No. 1860-08-4.,04 August 1860
• Citation: 682 S.E.2d 92,54 Va. App. 730
• Parties: James CARROLL v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

682 S.E.2d 92

54 Va. App. 730

James CARROLL v. COMMONWEALTH of Virginia.

Record No. 1860-08-4.

Court of Appeals of Virginia, Alexandria.

September 1, 2009.

Clarence F. Stanback, Jr., for appellant.

Richard B. Smith, Special Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.

Present: HUMPHREYS, HALEY and ALSTON, JJ.

HALEY, Judge.

James Carroll ("Carroll") argues that 1) the trial court erred in finding that he violated the conditions of his probation by refusing to admit that he committed the crime charged during court-ordered sex offender treatment because he had entered his guilty plea while asserting his innocence pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); and 2) the trial court abused its discretion in denying his request for individual therapy in lieu of the court-ordered sex offender treatment program. For the following reasons, we affirm.

FACTS

On September 6, 2007, pursuant to a plea agreement with the Commonwealth, Carroll entered a guilty plea to rape in violation of Code § 18.2-61 while asserting his innocence pursuant to the United States Supreme Court's decision in Alford, 400 U.S. 25, 91 S.Ct. 160. The trial court accepted Carroll's Alford plea of guilty, and continued the case for five years. Under the conditions of the agreement, Carroll was required to be on active probation during the five years. If, during the five years, Carroll remained of general good behavior, had no contact with the victim or her family, and paid his court costs, the Commonwealth agreed, at the end of the five years, to ask the trial court to vacate the plea of guilty and accept instead a guilty plea to assault and battery in violation of Code § 18.2-57.

During Carroll's guilty plea hearing, the trial court asked him several questions about whether he understood his Alford plea.

THE COURT: What is an Alford plea?

[DEFENDANT]: It's a plea where you're pleading guilty, sir, and—

THE COURT: No, you're not pleading guilty.

[DEFENDANT]: Well, what the plea is, it says that the prosecutor feels he has enough evidence to convict me even though I don't think I'm guilty of the crime.

THE COURT: And you don't want to take that chance.

[DEFENDANT]: Correct.

THE COURT: In other words, you didn't want to roll the bones.

[DEFENDANT]: I don't play the lottery.

THE COURT: Excuse me?

[DEFENDANT]: I don't play the lottery.

THE COURT: Okay. Now, do you realize—do you understand that the legal consequences of an Alford plea are the same as a guilty plea or a finding of guilt?

[DEFENDANT]: That's what I'm told.

THE COURT: But do you understand that?

[DEFENDANT]: I understand as best that I have from what my attorney has told me, yes, sir.

THE COURT: Did you need more time to talk to your attorney?

[DEFENDANT]: No, sir. I mean, he's explained it to me.

THE COURT: Well, then, do you understand what he's saying to you?

[DEFENDANT]: Yes, sir.

THE COURT: I have to be convinced that you know what you're doing.

[DEFENDANT]: Yes, sir. I know what I'm doing.

(Emphasis added).

The trial court then accepted Carroll's plea and continued the case to September 14, 2012. One provision of the trial court's order was that: "The Defendant shall comply with all the rules and requirements set by the Probation Officer. Probation shall include any substance abuse counseling, testing, and/or treatment as prescribed by the Probation Officer." On October 9, 2007, Carroll again appeared in court for a hearing on his motion to amend provisions of the sentencing order. Carroll's motion asked the court for an order that his probation be administered and supervised by the Arlington County probation office, that his travel within the Commonwealth be unrestricted to accommodate his work as a realtor and that no sex offender treatment be required. The court issued an order October 30 of the same year, granting the motion in part. The court agreed that Carroll's probation could be supervised from Arlington—it had previously been supervised from Fairfax—and left any travel restrictions to the discretion of Carroll's probation officer. The order also states that, "any sex offender treatment is to be determined by the Defendant's supervising Probation Officer."

After this hearing, Carroll enrolled at the Center for Clinical and Forensic Services, Inc. (CCFS) for sex offender treatment. On May 7, 2008, Cynthia Urick, of CCFS, wrote a letter to Carroll's probation officer. According to the letter:

When Mr. Carroll began treatment at CCFS, he was placed in Phase 1 of the process. During this component of treatment, offenders are introduced to foundational concepts associated with sex offender treatment (e.g. Denial and Consent) and are required to present full disclosure of their referral offense and sexual history. In addition, the polygraph is used as a treatment tool to verify the offender's self-reported history. When Mr. Carroll began services at CCFS, he denied all accounts of the offense he was convicted of and indicated that he was "set up" by his ex-wife. Efforts to engage him in discussions about the offense did not produce a change in his position. In fact, he became hostile and resistant when asked about the specific details. As a result, he was referred for an instant offense polygraph, which he took on March 28, 2008. On the exam, he denied questions related to ever having sexual intercourse or sexual contact with his stepdaughter and the result was "deception indicated." Subsequent to the exam, Mr. Carroll was again presented with several opportunities to take responsibility for the offense but he failed to do so.

* * * * * *

Mr. Carroll has been in treatment for approximately two months and has made no forward progress regarding accepting responsibility for the crime for which he was convicted. Insofar as there is no indication that he will make the needed change, Mr. Carroll is being unsuccessfully discharged for lack of amenability.

The court issued a bench warrant for Carroll's arrest for violating the conditions of his probation and, on June 13, 2008, held a hearing on the allegations. Carroll's attorney denied that he was in violation, and the court heard evidence from the probation office, including the letter from CCFS describing the reasons for Carroll's discharge from the program. The court announced that it did not consider the part of the letter referring to polygraph testing. At the close of the evidence, Carroll argued that he was not in violation of his probation because of the trial court's acceptance of his Alford plea. He did not argue that the court could not find him in violation because of the terms of any plea agreement. The trial court found Carroll in violation of his probation, convicted him of the rape charge, sentenced him to five years in prison, with all five years suspended, and ordered him to complete five years of supervised probation and to successfully complete sex offender treatment.

Carroll also argued that the court should order individual therapy. His attorney proffered that Dr. Stan Saminov, who holds a Ph.D and has dealt with sex offense cases before, would be willing to provide treatment for Carroll. Instead of ordering individual therapy, the court's order requires Carroll to "enter and complete sex offender treatment as required by his Probation Officer."

ANALYSIS

I. Scope of the Issues Presented for Review

The greater part of the dissent's criticism of our decision concerns the terms of the plea agreement Carroll made with the Commonwealth. This agreement was recorded in a written document, signed by the parties, that includes an integration clause stating that "I understand that the judge will not enforce any agreement not written down here." Sex offender treatment is not mentioned anywhere in this document. The dissent argues that the trial court's decision to find Carroll in violation of his probation was, itself, a violation of the plea agreement's terms, and therefore, was error. We note, with respect, the argument advanced by the dissent is not before us for resolution.

The reason we may not consider the plea agreement terms is that they are not a basis for reversal permitted by our Rules of Court. According to Rule 5A:12(c): "Only questions presented in the petition for appeal will be noticed by the Court of Appeals." Carroll petitioned for, and was granted, an appeal on the following two questions:

1) Whether the trial court erred in finding Appellant in violation of probation based solely on Appellant's refusal to admit to rape during sex offender therapy given the fact that the Commonwealth agreed to and the court accepted an Alford plea?

2) Whether the trial court erred in not considering a reasonable alternative treatment modality (sex offender treatment with an expert forensic psychologist) in lieu of probation revocation coupled with the condition of successfully completing the same program from which appellant was terminated?

Neither question 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 made with the Commonwealth. Accordingly, the dissent's emphasis on the general rule that plea agreements are enforced under contract principles, while correct as a statement of the law, see Wright v. Commonwealth, 275 Va. 77, 80-82, 655 S.E.2d 7, 9-10 (2008), does not, we respectfully conclude, speak to the questions presented.

The dissenting opinion's discussion of the plea agreement suggests, however, that its terms are necessarily connected to our resolution of the first of Carroll's questions presented. Specifically, the dissent adduces "two important reasons" for disagreeing with our conclusion:

(1) there is a fundamental inconsistency between appellant's claim of innocence implicit in his making a plea agreement to the underlying charge pursuant to Alford and a...