State ex rel. Warren v. Schwarz

• Decision Date: 15 May 1997
• Docket Number: No. 96-2441,96-2441
• Citation: 566 N.W.2d 173,211 Wis.2d 710
• Parties: STATE of Wisconsin ex rel. Phillip I. WARREN, Petitioner-Appellant, d ]]]] v. David H. SCHWARZ, in his capacity as Administrator, Department of Administration, Division of Hearings and Appeals, Respondent-Respondent.
• Court: Wisconsin Court of Appeals

Page 173

566 N.W.2d 173

211 Wis.2d 710

STATE of Wisconsin ex rel. Phillip I. WARREN Petitioner-Appellant, ^d]]]] v. David H. SCHWARZ, in his capacity as Administrator Department of Administration, Division of Hearings and Appeals, Respondent-Respondent.

No. 96-2441.

Court of Appeals of Wisconsin.

Submitted on Briefs March 7, 1997.

Opinion Released May 15, 1997.

Opinion Filed May 15, 1997.

For the petitioner-appellant the cause was submitted on the briefs of Ralph A. Kalal of Kalal & Associates of Madison.

For the respondent-respondent the cause was submitted on the brief of James E. Doyle, Attorney General, and Pamela Magee, Assistant Attorney General.

Before EICH, C.J., and VERGERONT and DEININGER, JJ.

VERGERONT, Justice.

Phillip Warren filed a petition for writ of certiorari to review the decision of the Department of Administration, Division of Hearings and Appeals (division) revoking his probation. His probation was revoked because he failed to successfully complete a sexual offender treatment program in that he failed to acknowledge responsibility for the sexual assault for which he was convicted. The trial court affirmed the decision of the division. Warren appeals, contending that it is a violation of his right to due process to revoke his probation because of his denial of guilt for a sexual assault when the conviction for that assault is based on an Alford no contest plea. He also contends that the State did not adequately explore suitable alternatives to revocation. We conclude that Warren's right to due process was not violated and that the division properly exercised its discretion in concluding that there were no alternatives to revocation. We therefore affirm.

BACKGROUND

Warren was convicted of first-degree sexual assault of a child in July 1990, following the entry and acceptance of an Alford no-contest plea. The victim was the daughter of Warren's girlfriend. Before the trial court accepted the plea and after advising and questioning Warren on other matters, the court advised Warren that, in the event the court granted probation, counseling would likely be a condition. The court continued, "and that carries with it--I realize that you, by making your plea of no contest, are not admitting anything in court, but you still would have an obligation to enter into counseling in good faith with the counselor, the The trial court imposed a five-year sentence which it stayed in favor of an eight-year term of probation. One of the court-ordered conditions of probation was that Warren cooperate with any counseling as ordered by the Department of Corrections (DOC) and complete any counseling as ordered. DOC imposed other conditions, including rules governing his contact with minor children, and more specific rules regarding counseling, which will be discussed in more detail later in the opinion.

                psychiatrist, or doctor, whoever, so that's something you should realize."   The court then asked Warren if he had any questions given all the things the court had told him about the effect of his plea, and Warren answered "no."   Before accepting Warren's plea, the court also found strong evidence of actual guilt based on the testimony at the preliminary hearing
                

DOC issued a notice of violation on or about September 28, 1995, alleging that Warren had violated a condition of probation by failing to successfully complete Attic's Denial Focus Sex Offender Treatment Program in violation of Rule # 15f of the Rules of Probation signed on April 3, 1995. That rule provided: "You shall enter and successfully complete the sex offender treatment groups at an approved inpatient treatment program, attend weekly, and abide by the rules of contract, by April 20, 1995."

After a hearing, the hearing examiner for the division ordered that Warren's probation be revoked. ¹ In his decision, the hearing examiner made the following findings. The court accepted Warren's Alford plea and determined there was strong evidence of Warren's guilt. The court also advised Warren that if he were placed on probation, he would be expected to enter into good faith counseling as part of his probation term. Warren adequately reported to his probation agent, paid all court-ordered financial obligations, and maintained stable employment and a stable residence. Warren attended three separate group sessions of Attic's treatment program, the first beginning in March 1991. He attended every meeting and participated in discussions. He repeatedly denied any culpability for the conviction, denied he had committed any sexual offense, and portrayed himself as a victim of the criminal justice system. He was repeatedly warned by his agent that he must successfully participate in the sex offender treatment program or risk revocation. His rules were amended numerous times to impress upon him the seriousness of the treatment requirement.

In his decision, the examiner also discussed Warren's position that DOC lacked the authority to require him to successfully complete the treatment program because he pleaded no contest and maintained his innocence. The examiner noted that Warren was a convicted sex offender, had been ordered to cooperate in good faith in counseling and to complete any counseling ordered and that treatment was consistently emphasized by his agent as a key aspect of his supervision. The examiner stated that Warren's failure to admit his guilt as part of treatment effectively hindered the probation agent's ability to ensure public safety and Warren's rehabilitation. The examiner found that Warren had a moderate to moderately high risk of reoffending within the community because of his failure to take responsibility for his actions that led to the sexual assault conviction. Revocation was therefore necessary both to protect the public and to provide a confined correctional treatment setting for Warren. The examiner concluded that alternatives to revocation within the community were not viable and feasible because of Warren's failure to successfully complete the community-based treatment.

The examiner's decision was affirmed by the division administrator. On appeal by writ of certiorari, the trial court affirmed. It concluded that the requirement that Warren successfully complete sexual offender treatment was a reasonable requirement necessary for the protection of the public and for

Warren's rehabilitation and served a legitimate penological objective. The court rejected Warren's argument that his right to due process was violated because he was required to admit his guilt in order to successfully complete the treatment program.

DISCUSSION

Due Process

We review the division's decision, not that of the trial court. A court's review by certiorari of a tribunal's decision is limited to four inquiries: (1) whether the tribunal stayed within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive or unreasonable and represented its will, not its judgment; and (4) whether the evidence was such that it might reasonably make the decision that it did. Van Ermen v. Percy, D.H.S.S., 84 Wis.2d 57, 63, 267 N.W.2d 17, 20 (1978). The first issue Warren raises on appeal--whether his revocation for failure to acknowledge responsibility for the sexual assault violates his right to due process--involves the second inquiry and presents a question of law, which we review de novo. See State v. Carrizales, 191 Wis.2d 85, 92, 528 N.W.2d 29, 31 (Ct.App.1995).

Warren's due process argument is based on the nature of the Alford plea. An Alford plea is a plea in which the defendant pleads either guilty or no contest, while either maintaining his innocence or not admitting having committed the crime. See State v. Garcia, 192 Wis.2d 845, 856, 532 N.W.2d 111, 115 (1995); see also State v. Salentine, 206 Wis.2d 418, 423-25, 557 N.W.2d 439, 441-42 (Ct.App.1996). Our supreme court has recognized that an Alford plea is a legally permitted form of a plea, which a court may in its discretion accept when the court determines there is strong evidence of actual guilt and the plea is knowing, voluntary and intelligent. Garcia, 192 Wis.2d at 859-60, 532 N.W.2d at 116-17. ² A defendant has no constitutional right to the acceptance of an Alford plea. North Carolina v. Alford, 400 U.S. 25, 39 n. 12, 91 S.Ct. 160, 168 n. 12, 27 L.Ed.2d 162 (1970).

Warren contends that when a court accepts an Alford plea, it "countenances the process of the defendant maintaining his or her innocence while still being convicted and punished" and this carries with it an "implicit assurance" that the defendant will not be punished for asserting his or her innocence. According to Warren, this assurance is violated when probation is revoked for failing to admit commission of the crime in the context of a treatment program required as a condition of probation. The State responds that Carrizales has resolved this issue against Warren.

In Carrizales, the defendant pleaded no contest to a sexual assault charge. The trial court accepted the plea, withheld sentence, and placed him on probation for three years. As a condition of probation, the court ordered Carrizales to receive any counseling deemed appropriate by the probation agent. Carrizales, 191 Wis.2d at 91-92, 528 N.W.2d at 30. When Carrizales was terminated from the sexual offender treatment program because he refused to admit the sexual assault, he sought a temporary injunction against revocation of his probation, which the trial court treated as a motion to modify the terms of probation. Id. at 92, 528 N.W.2d at 30-31. The issue before us on appeal was whether the requirement that Carrizales admit his guilt in the context of a treatment program that was a condition of his probation violated his Fifth Amendment right against self-incrimination. Id. at 92, 528 N.W.2d at 31. We concluded that it did not, because Carrizales had already been convicted of the crime and there was no threat...