People v. Birdsong

• Decision Date: 26 September 1996
• Docket Number: No. 96CA0157,96CA0157
• Citation: 937 P.2d 877
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Douglas Michael BIRDSONG, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 877

937 P.2d 877

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Douglas Michael BIRDSONG, Defendant-Appellant.

No. 96CA0157.

Colorado Court of Appeals,

Div. II.

Sept. 26, 1996.

Rehearing Denied Nov. 14, 1996.

Certiorari Granted June 9, 1997.

Gale A. Norton, Attorney General, Stephen K. Erkenbrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General John J. Krause, Assistant Attorney General, Denver, for Plaintiff-Appellee.

Michael T. Kossen, Highlands Ranch, for Defendant-Appellant.

Opinion by Justice QUINN. ^*

Defendant, Douglas Birdsong, appeals the trial court's order revoking his sentence to probation. We reverse and remand.

Defendant was originally charged with one count of sexual assault on a child, one count of sexual assault on a child by one in a position of trust, and one count of aggravated incest. The charges were based on allegations that defendant had molested his five-year-old daughter by inappropriately touching her vaginal area.

Pursuant to a written plea agreement, defendant entered a plea of guilty to one misdemeanor count of third degree sexual assault in accordance with North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (defendant may constitutionally enter a plea of guilty pursuant to a plea agreement without actually admitting factual guilt if defendant knowingly acknowledges that prosecution's evidence is sufficient such that conviction at trial is likely). At the providency hearing, defendant admitted touching his daughter's genital area, but denied having done so for purposes of sexual gratification.

The plea agreement contained a stipulated probationary sentence of four years with "offense specific therapy." At the providency hearing, the parties agreed that an offense specific evaluation and treatment as recommended by the evaluator were encompassed with that condition. The court accepted the plea agreement and imposed sentence in accordance with the parties' stipulation.

Six months later, defendant's probation officer filed a probation complaint alleging that defendant had violated the terms and conditions of his probationary sentence by not having successfully completed the "denial treatment program." Specifically, the complaint alleged that, although defendant had enrolled in a sex offender treatment program as ordered by the probation department and had attended 55 sessions of a denial treatment group, he was still "in denial" and unsuitable for the next phase of the treatment program.

At the probation revocation hearing, the director of defendant's sexual offender treatment program testified that defendant had not successfully completed the four-phase treatment program because he was still unwilling to admit that the incidents involving his daughter were sexually motivated. Defendant called his former attorney as a witness to testify concerning discussions of defendant's plea negotiations. The attorney testified that he and the deputy district attorney agreed that defendant would continue participating in the denial group therapy program, and that if defendant admitted anything requiring further treatment, he would continue in therapy. The attorney also testified that, in his opinion, the terms of defendant's probation were inconsistent with the terms of the plea agreement because the plea agreement did not contemplate that defendant would be obligated to "enter, enroll [in], and successfully complete a sex offender specific treatment program" as specified in the probationary terms.

The trial court found that the prosecution had established a violation of probation by a preponderance of the evidence. Relying on the transcript of the providency hearing, the court found that successful completion of an offense specific treatment program was a condition of defendant's probation. In addition, the court reasoned that any contrary interpretation of the probationary terms would have effectively allowed defendant to terminate his therapeutic treatment by means of his unwillingness to cooperate. On the basis of these findings, the court revoked defendant's probation and sentenced him to two years imprisonment in the county jail with work release. This appeal followed.

Defendant's single claim on appeal is that, because he entered an Alford plea, the trial court erred in revoking his probation based on his refusal to admit guilt in the sex offender treatment program. We agree.

Probation is a privilege, not a right. People v. Ickler, 877 P.2d 863 (Colo.1994). If a probationer violates any condition of probation, the order of probation may be revoked. Sections 16-11-205 & 16-11-206, C.R.S. (1986 Repl.Vol. 8A); see also People v. Ickler, supra. In a revocation proceeding, the prosecution has the burden of establishing by a preponderance of the evidence that the defendant violated a valid condition of probation. Section 16-11-206(3), C.R.S. (1986 Repl.Vol. 8A); see also People v. Trujillo, 189 Colo. 206, 539 P.2d 1234 (1975).

As an initial matter, we reject defendant's argument that because the treatment counselors recommended terminating him from the program at the end of the denial group therapy sessions, such recommendation implicitly constituted an acknowledgment that no further treatment was required. On the contrary, the program director's testimony at the probation revocation hearing makes abundantly clear that the program counselors considered defendant in need of further treatment, though not amenable to it because of his refusal to admit culpability.

The remaining question, therefore, is whether defendant's unsuccessful therapeutic termination caused by a refusal to admit guilt can constitute a probation violation in light of his Alford plea and stipulated probationary sentence requiring successful completion of the sex offender treatment. We conclude that it cannot.

Both parties rely upon People v. Ickler, supra, to support their respective positions. In Ickler, the defendant pled guilty to a sexual assault charge and was ordered to complete a sex offender treatment program as a condition of a probationary sentence. Although the availability of special treatment programs for those in denial was discussed at sentencing, the...