State ex rel. Warren v. Schwarz

• Decision Date: 27 August 1998
• Docket Number: 97-0851,Nos. 96-2441,s. 96-2441
• Citation: 219 Wis.2d 615,579 N.W.2d 698
• Parties: STATE of Wisconsin ex rel. Philip I. WARREN, Petitioner-Appellant-Petitioner, v. David H. SCHWARZ, in his capacity as Administrator, Department of Administration, Division of Hearings and Appeals, Respondent-Respondent. STATE of Wisconsin, Plaintiff-Respondent, v. Philip WARREN, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 698

579 N.W.2d 698

219 Wis.2d 615

STATE of Wisconsin ex rel. Philip I. WARREN, Petitioner-Appellant-Petitioner, v. David H. SCHWARZ, in his capacity as Administrator,

Department of Administration, Division of Hearings

and Appeals, Respondent-Respondent.

STATE of Wisconsin, Plaintiff-Respondent, v. Philip WARREN, Defendant-Appellant.

Nos. 96-2441, 97-0851.

Supreme Court of Wisconsin.

Argued April 28, 1998.

Decided July 1, 1998.

Reconsideration Denied Aug. 27, 1998.

For the petitioner there were briefs by Ralph A. Kalal and Kalal & Associates, Madison and oral argument by Ralph A. Kalal.

For the respondent-respondent, the cause was argued by Marguerite M. Moeller, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.

For the defendant-appellant there was a brief and oral argument by David D. Cook, Monroe.

For the plaintiff-respondent the cause was argued by Michael R. Klos, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.

¶1 JON P. WILCOX, Justice

These cases have arrived at the court's threshold from divergent paths. Case No. 96-2441 is a review of a published decision of the court of appeals, State ex rel. Warren v. Schwarz, 211 Wis.2d 708, 566 N.W.2d 173 (Ct.App.1997), which affirmed an order of the circuit court for Richland County, Kent C. Houck, Judge. The circuit court affirmed a decision of the Department of Administration, Division of Hearings and Appeals (Department), revoking the defendant Philip Warren's (Warren) probation.

¶2 Our review of the court of appeals' decision presents only one issue: was Warren's right to due process violated when the State of Wisconsin (State), following Warren's entry of an Alford plea, later revoked his probation for failing to successfully complete a sex offender treatment program which required him to admit his guilt? We hold that Warren's right to due process was not violated by the revocation of his probation and, accordingly, we affirm the decision of the court of appeals.

¶3 Case No. 97-0851 is before the court on certification from the court of appeals following an order of the circuit court for Richland County, Kent C. Houck, Judge. In this case, the circuit court denied Warren's motions for post-conviction relief and for appointment of counsel. On certification, we consider the following issues: (1) Did the circuit court's failure to inform Warren at the time of his Alford plea that he would be required to admit his guilt during a sex offender treatment program render that plea unknowing and involuntary in violation of his right to due process; (2) did the State violate the terms of the Alford plea agreement when it revoked Warren's probation for failing to admit his guilt; (3) did the circuit court properly conclude that the evidence against Warren provided "strong proof of guilt" justifying acceptance of an Alford plea; and (4) was the circuit required as a matter of due process to appoint counsel to represent Warren at the post-conviction proceedings in this case?

¶4 We hold first that the circuit court's failure to inform Warren at the time of his Alford plea that he would have to admit his guilt during a probationary sex offender treatment program did not render his Alford plea unknowing or involuntary. Second, we hold that the State did not violate the terms of the Alford plea agreement when it revoked Warren's probation for failing to admit his guilt. Third, we hold that the circuit court properly concluded that the evidence before it established "strong proof of guilt" so as to justify acceptance of Warren's Alford plea. Finally, we hold that the circuit court was not required as a matter of due process to appoint counsel to represent Warren at the post-conviction proceedings in this case. Accordingly, we affirm the order of the circuit court.

¶5 The facts relevant to our disposition of both cases, though lengthy, are not in dispute. On February 26, 1990, Warren was charged with two counts of sexual assault of a child, J.K., the ten year old daughter of a woman with whom Warren had lived in 1989. On March 20, 1990, the circuit court held a preliminary hearing at which J.K. testified. J.K. began her testimony by indicating that on more than one occasion, Warren had "touch[ed] me in the wrong places." She then proceeded to describe the events of a particular incident which occurred sometime after May 22, 1989, in more detail: ¹Q: Okay. Can you tell us what happened that day--how the whole thing started out?

A: Well, I was watching t.v. and he told me to come over on the couch.

Q: Okay. And after he told you to come over to the couch, what happened?

A: He started touching me.

Q: And where did he touch you?

A: On my breasts and on my crotch.

Q: How long did this touching go on?

A: Fifteen to twenty minutes.

...

Q: When you say that Phil gives you bad touches, what do you mean?

A: Like rubbing.

Q: And where does he do it? Where does he rub you?

A: My crotch.

¶6 Later, J.K. proceeded to describe the particulars of a separate and discrete incident:

Q: Okay. Now what was the second time?

...

A: He was in the bedroom.

Q: Okay. And what happened that time?

A: He told me to come in there.

Q: Okay. And after he told you to come in, what happened?

A: He told me to lay down on the bed.

Q: Okay. And after he told you to lay down on the bed, what happened?

A: He started touching me.

Q: And where did he touch you?

A: My breasts and my crotch.

When asked upon cross-examination whether she would "describe this touching by Phil more like tickling," J.K. responded, "No."

¶7 The circuit court also received testimony from Officer Virginia Cupp (Cupp), who related to the court statements made by J.K. at an interview conducted in February of 1990. ² According to Cupp, J.K. told her that Warren "unzipped, unbuttoned and upzipped her pants and put his hands--and as I remember she describes more like two or three fingers--in her crotch area underneath her underpants."

¶8 Following the preliminary hearing, a plea hearing was held on July 10, 1990. At the hearing, Warren entered an Alford plea to one of the sexual assault counts, and the State agreed to dismiss the remaining count. Before accepting the plea, the circuit court informed Warren of the important rights he was waiving, questioned defense counsel on the voluntariness of Warren's plea, and cautioned the defendant that his probation would be revoked if he failed to complete the terms of his probation. The following exchange then occurred:

THE COURT: ...

One other thing that I should perhaps address. In the event that the Court grants probation, probable [sic] or very likely one item that is going to be ordered is counseling, and you will be expected to enter into good faith counseling as part of the term of probation, 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 psychiatrist, or doctor, whoever, so that's something that you should realize. Now, given all of the things that I told you about the effect of your plea, do you have any questions about it?

THE DEFENDANT: No, your Honor.

Record on Appeal, No. 96-2441 at 8:68 (Plea Hrg. July 10, 1990).

¶9 Following this colloquy with the defendant, the circuit court concluded that the testimony at the preliminary hearing on March 20, 1990, was sufficient to constitute strong proof of guilt as required by an Alford plea. Accordingly, the circuit court accepted the plea and entered a judgment of conviction against Warren for sexual assault of a child.

¶10 On November 5, 1990, the circuit court imposed a five-year prison sentence, which it stayed in favor of an eight-year term of probation. As a condition of that probation, the circuit court ordered that Warren obey the rules of the probation department and "that he attend any and all counseling that is ordered by the Department [of Corrections] including an alcohol and drug assessment, psychological or psychiatric assessment; and that he follow all the recommendations that any study or any counselor comes up with." Record on Appeal, No. 97-0851 at 66:17 (Sentencing Hrg. Nov. 5, 1990).

¶11 After being sentenced, Warren served under probationary supervision for approximately five years. During this time, he participated in the Attic Correctional Services' Denial Focus Sex Offender Group on three separate occasions in 1991, 1992 and 1995. ³ Although Warren attended every session and participated in the group discussions, he consistently and repeatedly denied any culpability in his conviction for sexual assault of a child. ⁴

¶12 In apparent response to his unwillingness to take responsibility for his actions, Warren's probation rules were amended on April 3, 1995, to include Rule 15F, which stated: "You shall enter and successfully complete sex offender treatment groups at an approved outpatient treatment program, attend weekly, and abide by the rules of the contract...." Record on Appeal, No. 96-2441 at 8:35 (Amended Probation/Parole Rules April 3, 1995).

¶13 On December 11, 1995, the Department revoked Warren's probation for failure to admit his guilt during counseling, and ordered Warren to begin serving the five year sentence imposed in 1990. ⁵ The following month, Warren sought review of the Department's revocation decision by petition for writ of certiorari in the Richland County Circuit Court pursuant to Wis. Stat. § 781.01 (1993-94). Raising substantially the same arguments which he presents to this court, Warren sought to be placed back on probation. Finding "no merit in [Warren's] contention that he has a special right to maintain his denial during treatment because he was allowed to enter an Alford plea," the circuit court affirmed the Department's decision to revoke Warren's probation. Record on Appeal, No. 96-2441 at 12:2 (Mem. Decision July...