People v. Ruch
| Decision Date | 16 May 2016 |
| Docket Number | Supreme Court Case No. 13SC587 |
| Citation | 379 P.3d 309,2016 CO 35 |
| Parties | The PEOPLE of the State of Colorado, Petitioner v. Carl Daniel RUCH, Respondent |
| Court | Colorado Supreme Court |
Attorneys for Petitioner: Cynthia H. Coffman, Attorney General, Wendy J. Ritz, First Assistant Attorney General, Denver, Colorado
Attorneys for Respondent: Douglas K. Wilson, Public Defender, Michael C. Mattis, Deputy Public Defender, Denver, Colorado
En Banc
delivered the Opinion of the Court.
¶ 1 This case requires us to determine whether the trial court properly revoked respondent Carl Daniel Ruch's probation for, among other things, refusing to enroll or participate in sex offender treatment based on his concern that in the course of such treatment, he would have been compelled to incriminate himself in violation of the Fifth Amendment.
¶ 2 As a condition of probation, the trial court ordered Ruch to complete a sex offender polygraph and participate in sex offense specific treatment intervention. Ruch, however, refused to enroll or participate in such treatment, contending that participating would have violated his privilege against self-incrimination.
¶ 3 As a result of Ruch's refusal to enroll or participate in treatment, as well as his violations of certain other probation conditions, the trial court revoked Ruch's probation and sentenced him to a prison term. A division of the court of appeals concluded, however, that on the facts of this case, revoking Ruch's probation based on his refusal to attend sex offender treatment violated his Fifth Amendment rights. The division thus remanded the case to the trial court to determine whether Ruch's probation officer would have sought to revoke Ruch's probation based solely on the remaining probation violations and, if so, whether the court would have revoked Ruch's probation on those grounds.
¶ 4 We reverse. Unlike the division, we perceive no Fifth Amendment violation here, where the trial court revoked Ruch's probation based on his total refusal to attend treatment. In these circumstances, Ruch's purported invocation of his Fifth Amendment rights was premature and amounted to a prohibited blanket assertion of the privilege.
¶ 5 Accordingly, we hold that the trial court properly revoked Ruch's probation based on his refusal to attend treatment, and we remand this case with instructions that the trial court's order be reinstated.
¶ 6 In the spring and summer of 2007, Ruch repeatedly contacted and sent unwanted text messages to the fifteen-year-old victim, who was on the same high school cheerleading team as Ruch's daughter (Ruch was the president of the booster club for the team). The victim eventually reported these contacts to the police and also alleged that Ruch had touched her butt during a party at his home.
¶ 7 As a result of these allegations, Ruch was charged with sexual assault on a child by one in a position of trust and harassment—stalking (causing emotional distress). The case ultimately proceeded to trial, where the jury found Ruch not guilty of the sexual assault charge but guilty of the stalking charge.
¶ 8 Prior to sentencing, the trial court ordered Ruch to undergo a psychosexual evaluation, which the court said would provide it with information to consider at sentencing. Ruch participated in the evaluation, and the evaluator found him to be cooperative but cautious and at times evasive.
¶ 9 The case proceeded to sentencing, and at the sentencing hearing, Ruch's counsel explained that Ruch had been cautious in discussing the charged conduct because he was contemplating an appeal. Accordingly, during the evaluation, he was trying to balance his court-ordered obligation to cooperate with his Fifth Amendment right to remain silent, about which counsel had advised him.
¶ 10 The court sentenced Ruch to ninety days in the county jail and six years of intensive supervision probation (“ISP”). The initial probation conditions did not include a requirement of sex offender treatment. Subsequently, however, the probation department asked the court to add additional conditions of probation for sex offenders. Among these proposed conditions were requirements that Ruch complete a sex offender polygraph and participate in sex offense specific treatment intervention. The court granted the department's request and added these conditions.
¶ 11 Thereafter, Ruch filed a written objection to the additional conditions. In his objection, Ruch argued that (1) his treatment program would require him to admit to a sexual offense; (2) if he did not eventually do so, he would be terminated from the treatment program, which would constitute a violation of the terms and conditions of his ISP; (3) he had a Fifth Amendment right to remain silent during the pendency of his direct appeal; and (4) were he to speak about any aspect of this case, it could be used against him in any possible future trial. He thus requested that the court strike the additional conditions or hold them in abeyance until his direct appeal and any new trial that might result were completed.
¶ 12 The trial court subsequently set a hearing on Ruch's objection. At this hearing, Ruch's probation officer testified that under the Sex Offender Management Board standards in effect at that time, probationers were allowed to deny committing the offenses for which they were convicted for the first three months that they were in sex offender treatment. If after these three months, the probationers were still in denial, then the probation department would file a complaint to revoke probation.
¶ 13 The court reaffirmed its prior order that Ruch's probation include the additional conditions, effectively overruling Ruch's objection to those conditions. Ruch then signed a form agreeing to the additional conditions, including the condition that he attend and actively participate in sex offender evaluation and treatment.
¶ 14 Thereafter, the probation department filed a complaint and an amended complaint to revoke Ruch's probation. The department alleged that Ruch had committed four probation violations, including failing to enroll in sex offender treatment. After a hearing, the court found that Ruch had committed all four of the alleged violations, and it ultimately revoked Ruch's probation and sentenced him to four years in the Department of Corrections.
¶ 15 Ruch appealed, arguing, as pertinent here, that by requiring him to attend treatment while his appeal was pending, the trial court had violated his Fifth Amendment right against self-incrimination. People v. Ruch, 2013 COA 96, ¶ 42, 374 P.3d 485
. The People responded that the trial court did not violate Ruch's Fifth Amendment right because he did not properly invoke that right. Id.
¶ 16 The division agreed with Ruch. Id.
As pertinent here, the division first concluded that Ruch had properly invoked his Fifth Amendment right against self-incrimination:
[U]nder the circumstances presented here, Ruch was not required to wait until a counselor asked an incriminating question to raise his Fifth Amendment objection. Rather, he was only required to raise his objection once it became known that the terms of his probation required him to incriminate himself or otherwise risk revocation.
.
¶ 17 Having concluded that Ruch had sufficiently invoked his Fifth Amendment right, the division proceeded to consider whether the trial court had violated that right when it based its decision to revoke Ruch's probation, in part, on Ruch's decision not to enroll in and attend treatment. Id. at ¶¶ 59–63
. The division began by discussing a prior division's analysis in People v. Guatney, 183 P.3d 620 (Colo.App.2007), vacated, 214 P.3d 1049 (Colo.2009). Ruch, ¶¶ 60–63. In Guatney, 183 P.3d at 626, the division had concluded that absent a grant of use immunity, the state could not revoke a defendant's probation based on his or her invocation of the Fifth Amendment right against self-incrimination and the consequent refusal to admit guilt to the offense for which he or she was on probation while a direct appeal was pending. Recognizing that this decision was not precedential because it had been vacated on jurisdictional grounds, the division found its reasoning persuasive and chose to follow it. Ruch, ¶ 63. Thus, the division concluded that by considering Ruch's refusal to attend treatment as one ground for revoking his probation, the trial court had violated Ruch's Fifth Amendment right against self-incrimination.
Accordingly, the division remanded the case to the trial court to determine whether Ruch's probation officer would have sought to revoke Ruch's probation based solely on the remaining probation violations and, if so, whether the court would have revoked Ruch's probation on those grounds. Id. at ¶ 67.
¶ 18 We granted the People's petition for certiorari.1
¶ 19 We review de novo the application of the Fifth Amendment to the undisputed facts in this case. See People v. Roberson, 2016 CO 36, ¶ 20, 377 P.3d 1039
; see also
¶ 20 The Fifth Amendment to the United States Constitution, which is applicable to the states through the Fourteenth Amendment, see Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964)
, guarantees that no person “shall be compelled in any criminal case to be a witness against himself,” U.S. Const. amend. V. The Fifth Amendment not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984), but also it “privileges him not to answer official questions put to him in any other proceeding,...
To continue reading
Request your trial
-
People v. Timoshchuk
...16-27, 374 P.3d 485 (addressing a claim of improper denial of a request for substitute appointed counsel), rev’d on other grounds , 2016 CO 35, 379 P.3d 309 ; People v. Firth , 205 P.3d 445, 451 (Colo. App. 2008) (addressing a claim of ineffective assistance of counsel during a probation re......
-
People v. Johnson
...violated the terms of probation, it then has the discretion to revoke probation based on the violation."), rev'd on other grounds , 2016 CO 35, 379 P.3d 309.¶ 57 In this way, probationers are unlike postconviction defendants. With respect to the latter category, the government has carried i......
-
People ex rel. K.S-E.
...guarantees that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V ; see People v. Ruch , 2016 CO 35, ¶ 20, 379 P.3d 309, 313. Thus, "[t]he Fifth Amendment provides a witness with a privilege to decline to answer questions if the answer......
-
People v. O'Day
...district court violated a defendant's privilege against self-incrimination. People v. Roberson , 2016 CO 36, ¶ 20, 377 P.3d 1039 ; People v. Ruch , 2016 CO 35, ¶ 19, 379 P.3d 309. ¶ 12 The Fifth Amendment allows a defendant to refuse to testify against himself in a criminal trial and "privi......