People v. Birdsong

• Decision Date: 18 May 1998
• Docket Number: No. 96SC828,96SC828
• Citation: 958 P.2d 1124
• Parties: 98 CJ C.A.R. 2360 The PEOPLE of The State of Colorado, Petitioner, v. Douglas BIRDSONG, Respondent.
• Court: Colorado Supreme Court

Page 1124

958 P.2d 1124

98 CJ C.A.R. 2360

The PEOPLE of The State of Colorado, Petitioner, v. Douglas BIRDSONG, Respondent.

No. 96SC828.

Supreme Court of Colorado,

En Banc.

May 18, 1998.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General, John J. Krause, Assistant Attorney General, Criminal Enforcement Section, Denver, for Petitioner.

Law Office of Michael T. Kossen, Michael T. Kossen, Highlands Ranch, for Respondent.

Justice KOURLIS delivered the Opinion of the Court.

This case raises the question of whether a guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), requires additional advisement and findings prior to acceptance by the trial court, or whether the acceptance of such a plea constrains the court in later revocation of probation proceedings. ¹ Douglas Birdsong entered an Alford plea to misdemeanor third degree sexual assault as part of a plea agreement that involved the dismissal of two class three felonies and one class four felony. The parties stipulated in writing to a probationary sentence including offense-specific treatment, which the court accepted. Accordingly, the court sentenced Birdsong to four years probation, conditioned upon the successful completion of an offense-specific treatment program. Birdsong's treatment providers ultimately terminated him from therapy because he continued to deny the sexual intent of his acts: the very objection that had caused him to enter an Alford plea. The trial court revoked Birdsong's probation and sentenced him to twenty-four months in county jail. On appeal, the court of appeals reversed the probation revocation. The court of appeals determined that Birdsong's plea was not valid because a term of his sentence was inconsistent with his Alford plea and the trial court had failed to advise him of the inconsistency. See People v. Birdsong, 937 P.2d 877, 878-79 (Colo.App.1996). We conclude that Birdsong's plea was valid and therefore reverse the judgment of the court of appeals.

I.

Birdsong was originally charged with one count of sexual assault on a child, a class four felony; one count of sexual assault on a child by one in a position of trust, a class three felony; and one count of aggravated incest, also a class three felony. ²

The criminal charges were based on allegations made by Birdsong's five-year-old daughter that he had touched her genitals under her clothes with his hands and feet. The child's mother reported the allegations to the Adams County Department of Social Services when the daughter returned from weekend visits with her father suffering from a rash in her vaginal area that worsened after subsequent visits. ³

Birdsong originally pleaded not guilty to the charges and the court set the matter for a jury trial. However, on January 12, 1995, Birdsong pleaded guilty to third degree sexual assault, a first degree misdemeanor, in exchange for dismissal of the felony counts. ⁴ Birdsong maintained that the acts were not motivated by sexual gratification and thus entered an Alford plea pursuant to which he maintained innocence as to that element of the charge. At a January 12, 1995 providency hearing, the court found that it was familiar with the evidence in the case, that Birdsong had admitted to inappropriately touching his daughter, and that Birdsong acknowledged that there was sufficient evidence which if believed by a jury could result in a verdict of guilty on the felony charges. The court also specifically advised Birdsong that it would treat his Alford plea the same as a guilty plea for sentencing purposes. The court made detailed findings as to the factual basis for the guilty plea and accepted it.

The court imposed a four-year sentence of probation conditioned upon successful completion of offense-specific therapy. The conditions of Birdsong's probation stated, among other things:

7. You will obtain an evaluation, counseling or treatment for drug use, alcohol abuse, or mental conditions required by the court or probation officer. You will immediately enter, attend or remain in and successfully complete treatment as recommended in a specified facility or program and meet all financial obligations of that program. [part of pre-printed form]

12. You will enter, enroll, and successfully complete a sex offender specific treatment program. [handwritten addition]

By the time Birdsong entered his plea, he had already attended approximately one year of sex offender treatment at the Aurora Community Mental Health Center as part of his court-ordered treatment in the dependency and neglect action. He therefore continued with that treatment in order to comply with the conditions of probation in this case.

The sex offender treatment in which Birdsong was enrolled consisted of four phases. The first phase, the denial phase, was for offenders who denied either their acts or the sexual intent of their acts. Phases two, three and four were the actual treatment phases of the program. Completion of the program involved all four phases and typically took between two and five years.

Birdsong attended fifty-five sessions in the denial group, all the while acknowledging that he may have inappropriately touched his daughter, but denying that he did so for purposes of sexual gratification or pleasure. At the end of the denial phase of the program, the treatment team assessed Birdsong and determined that he was still in denial, and therefore was not suited to participate in the ensuing treatment phases of the program. Birdsong received no further treatment.

The People filed a complaint for revocation of Birdsong's probation on July 5, 1995. The court determined that Birdsong had not successfully completed the necessary treatment, and that he had therefore violated a condition of his probation. The court revoked his probation on December 21, 1995. At the postrevocation sentencing hearing, Birdsong moved for reconsideration of the revocation. Birdsong argued that because his treatment providers determined that he was not eligible for continued therapy, he had completed the offense-specific therapy and had not violated a condition of his probation. The court denied the motion.

Birdsong told the court at the resentencing hearing that at the time he entered his Alford plea he knew that he would have to admit guilt in the treatment program even if he protested his innocence in his guilty plea. However, he said he thought his attorney had made a deal with the district attorney and the judge whereby he would only have to attend the denial phase of therapy. He further stated that even though the judge at the providency hearing stressed successful completion of the therapy program, he just went along with it "because I thought all of this was already taken care of." Birdsong said he thought the judge knew "that all I had to do was go through the denier's group and I didn't have to go through the other three [phases of the program]; therefore, when [the judge] asked me all of these questions I was just saying yes yes yes because I thought it was already taken care of."

In resentencing Birdsong to twenty-four months in the county jail with work release, the court explained:

The bottom line is that probation is not a right, but rather a privilege, and in this particular situation there is an essential requirement in order to qualify for that privilege, and that requirement is that the person be amenable to treatment in the offense specific therapy program, otherwise there is no point in probation in these types of cases.

Birdsong appealed the revocation of his probation. On appeal, Birdsong argued that because he entered an Alford plea, the trial court erred in revoking his probation based on his refusal to admit guilt in the sexual offender treatment program. The court of appeals agreed and remanded the case to the trial court for further proceedings, relying in part on People v. Walters, 164 Misc.2d 986, 627 N.Y.S.2d 289 (Cty.Ct.1995), for the conclusion that the acceptance of an Alford plea was directly inconsistent with a finding that refusal to admit guilt constituted a probation violation. The court of appeals suggested that the trial court consider the following list of recommended options: (1) permit Birdsong to withdraw the Alford plea and reinstate the charges; (2) permit Birdsong to continue on probation after the court determines that he understands and agrees to the successful completion of the deniers' phase and further understands and agrees to the requirement that successful completion will require him to admit his guilt as to all the elements of third degree sexual assault; or (3) permit Birdsong to continue on probation and eliminate his successful completion of the treatment program as a condition of probation. See Birdsong, 937 P.2d at 878.

We view the case differently from the court of appeals. An Alford plea is a guilty plea. As such, the trial court's obligations to advise the defendant were no greater than with any other guilty plea. Similarly, the trial court's concession to the defendant in accepting the Alford plea did not create an implicit agreement to permit him to continue on probation in the face of violation of the clear and reasonable conditions of that probation.

II.

A.

Alford pleas arose out of the United States Supreme Court decision North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). There the Court held that states could allow defendants to plead guilty even though they protested their innocence so long as their pleas were valid under standards set forth in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), ⁵ and were supported by a factual basis. See Alford, 400 U.S. at 31, 91 S.Ct. at 164. In essence, an Alford plea permits a defendant to assert...