State v. Carrizales

• Decision Date: 12 January 1995
• Docket Number: No. 93-1804-CR,93-1804-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Petronilo J. CARRIZALES, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 29

528 N.W.2d 29

191 Wis.2d 85

STATE of Wisconsin, Plaintiff-Respondent, v. Petronilo J. CARRIZALES, Defendant-Appellant.

No. 93-1804-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Aug. 11, 1994.

Opinion Released Jan. 12, 1995.

Opinion Filed Jan. 12, 1995.

For the defendant-appellant the cause was submitted on the brief of Frederick B. Hobe of Hobe Law Office of Fort Atkinson.

For the plaintiff-respondent the cause was submitted on the brief of James E. Doyle, Atty. Gen., and Paul Lundsten, Asst. Atty. Gen.

Before DYKMAN, SUNDBY and VERGERONT, JJ.

DYKMAN, Judge.

Petronilo Carrizales appeals from an order denying modification of his terms of probation. Carrizales pled no contest to one count of second-degree sexual assault and was ordered to attend counseling as a condition of probation. Carrizales contends that his Fifth Amendment right against self-incrimination was violated because his sex offender treatment program required that he admit committing the sexual assault. We conclude that Carrizales's right against self-incrimination was not violated because his admission of guilt would not incriminate him in a future criminal proceeding. We therefore affirm.

We part company with the dissent at this point. Carrizales has been very specific both in the trial court and here that this is a Fifth Amendment case. His motion was entitled "Petition for Review [of] Sentence and for [a] Temporary Injunction." At his hearing on this motion, he introduced his case as follows:

That's the whole case, question is a very clear one. Can the Division of Corrections penalize a person for denying guilt?

THE COURT: And do you seek then, Mr. Hobe, an Order of the court prohibiting the Department from taking action against Mr. Carrizales solely because of his denial of guilt?

[CARRIZALES'S ATTORNEY]: That's correct, I'm asking for an Injunction against the Department forbidding them to penalize him for exercising ... his Fifth Amendment [r]ights.

This case was presented and argued in the trial court as a Fifth Amendment case. The trial court's order, the only order from which Carrizales appeals, notes: "And the parties having further stipulated that the petition for review would be treated as a petition to modify conditions of probation...." That order makes three conclusions of law, all based on the Fifth Amendment.

Carrizales's notice of appeal specifically refers to the trial court's order which in turn was based only on the Fifth Amendment. Carrizales's brief to this court presents only Fifth Amendment issues for review. The cases he cites are Fifth Amendment cases, and he opens his brief by saying, "The appeal is founded in the Defendant-Appellant's claim of violation of his Fifth Amendment Rights as stated in the United States Constitution and incorporated into the Constitution of the State of Wisconsin." His brief argues only that he is protected from a feared revocation of probation by the Fifth Amendment.

We will address Carrizales's assertions in this opinion. We are appellate judges, not Carrizales's attorneys. We cannot serve as both advocate and judge. State v. Pettit, 171 Wis.2d 627, 647, 492 N.W.2d 633, 642 (Ct.App.1992). We should not address matters not considered by the trial court. Vollmer v. Luety, 156 Wis.2d 1, 10-11, 456 N.W.2d 797, 802 (1990). When we address issues other than those presented to us, we run the risk of having an excellent discussion of matters that are substantially irrelevant. Waushara County v. Graf, 166 Wis.2d 442, 453-54, 480 N.W.2d 16, 20, cert. denied, 506 U.S. 894, 113 S.Ct. 269, 121 L.Ed.2d 198 (1992). We will not develop an appellant's argument. State v. West, 179 Wis.2d 182, 195-96, 507 N.W.2d 343, 349 (Ct.App.1993), aff'd, 185 Wis.2d 68, 517 N.W.2d 482, cert. denied, 513 U.S. 955, 115 S.Ct. 375, 130 L.Ed.2d 326 (1994). Nor should we sift and glean the record in extenso to find facts to support an alleged error. Zintek v. Perchik, 163 Wis.2d 439, 482-83, 471 N.W.2d 522, 539 (Ct.App.1991).

Thus, though we do not accept the conclusions reached by the dissent, we do not address the matters considered in the dissent which stray from the real issue in this case. As the court noted in Graf, that discussion is substantially irrelevant. Graf, 166 Wis.2d at 453-54, 480 N.W.2d at 20.

BACKGROUND

Carrizales was charged with two counts of second-degree sexual assault, contrary to § 948.02(2), STATS. He entered into a plea agreement. In exchange for his plea of no contest, the prosecutor agreed to dismiss one of the counts and recommend probation. The plea agreement further stated that the sentence recommendation would include "counseling as deemed necessary by agent." The trial court withheld Carrizales's sentence and placed him on probation for a period of three years. As a condition of probation, Carrizales was to receive "any counseling as deemed appropriate by [his] probation agent."

During the next one-and-one-half years, Carrizales complied with his probationary conditions. However, in May 1993, he was terminated from his treatment program because he refused to admit that he committed the sexual assault. In June 1993, Carrizales filed a "Petition for Review [of] Sentence and for [a] Temporary Injunction" asking the trial court to prohibit the Department of Corrections (DOC) from revoking his probation for his refusal to admit guilt. Carrizales claimed that DOC had added a specific condition of probation not ordered by the trial court. Moreover, he argued that his refusal to admit guilt resulted in the imposition of a penalty and violated his Fifth Amendment right against self-incrimination.

The trial court treated Carrizales's post-conviction motion as a motion for modification of the terms of probation. The court denied the motion concluding that Carrizales's refusal to admit that he committed the sexual assault did not violate his Fifth Amendment right against self-incrimination because he was under no threat of any new criminal consequences. Carrizales appeals.

STANDARD OF REVIEW

Whether a condition of probation violates a defendant's constitutional rights is a question of law which we review de novo. State v. Miller, 175 Wis.2d 204, 208, 499 N.W.2d 215, 216 (Ct.App.1993). Thus, we decide such questions without deference to the decision of the trial court. Id.

CONDITIONS OF PROBATION

Carrizales argues that because his right against self-incrimination persists beyond trial and after a judgment of conviction is entered, he cannot be required to admit guilt. He also argues that counseling is an improper condition of probation when it is interpreted to include a forced confession. He contends that "the enforcement of a confession will be [of] no value to anyone other than a sense of satisfaction on the part of the probation officer." We disagree.

Section 973.09(1)(a), STATS., grants broad discretion to a trial court at sentencing and authorizes it to impose upon a probationer "any conditions which appear to be reasonable and appropriate." Such conditions must serve two goals: rehabilitation, and protection of the state and community interest. Miller, 175 Wis.2d at 208, 499 N.W.2d at 216. Indeed, the trial court may order specialized treatment as a condition of probation. State v. Lynch, 105 Wis.2d 164, 168, 312 N.W.2d 871, 874 (Ct.App.1981).

The conditions imposed upon a probationer may also implicate constitutional rights provided "they are not overly broad and are reasonably related to the defendant's rehabilitation." Miller, 175 Wis.2d at 208, 499 N.W.2d at 216 (citation omitted). Thus, in Miller, we determined that a condition of probation that prohibited the defendant from making telephone calls to any female with the exception of family members did not violate the defendant's First Amendment right to free association. Id. at 210-12, 499 N.W.2d at 217-18. And, in Edwards v. State, 74 Wis.2d 79, 84-85, 246 N.W.2d 109, 111-12 (1976), the supreme court determined that a condition of probation that prohibited the defendant from contacting any of her co-defendants did not violate her First, Ninth and Fourteenth Amendment rights because it was reasonably related to her rehabilitation and was not overly broad.

The Fifth Amendment of the United States Constitution, in pertinent part, provides: "No person ... shall be compelled in any criminal case to be a witness against himself...." U.S. CONST. amend. V. This provision guarantees that a defendant may refuse to answer questions "where the answers might incriminate him in future criminal proceedings." Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136, 1141, 79 L.Ed.2d 409 (1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274 (1973)).

In Murphy, the defendant was placed on probation after he pled guilty to a sex-related charge. Id. 465 U.S. at 422, 104 S.Ct. at 1139. As a condition of probation, he was required to participate in a sex offender treatment program and was directed to be truthful with his probation officer "in all matters." Id. After Murphy admitted to his probation officer that he had previously raped and murdered someone, he was charged with the murder. Id. at 423-25, 104 S.Ct. at 1140-41.

The Supreme Court held that a defendant does not lose his or her right against self-incrimination after being convicted of a crime, notwithstanding the fact that the defendant has been imprisoned or is on probation at the time the incriminating statements are made. Id. at 426, 104 S.Ct. at 1141-42. However, the Court stated that questions put to a probationer that are relevant to his or her probationary status and pose no realistic threat of incrimination in a separate criminal proceeding do not violate the Fifth Amendment. Id. at 435, 104 S.Ct. at 1146. And, the State may validly insist that the defendant respond to incriminating questions as long as it recognizes that the required answers may not be used in a subsequent criminal proceeding. Id. at 426, 104...