State v. Gleason

• Decision Date: 20 April 1990
• Docket Number: No. 87-384,87-384
• Citation: 154 Vt. 205,576 A.2d 1246
• Parties: STATE of Vermont v. Myron GLEASON.
• Court: Vermont Supreme Court

Page 1246

576 A.2d 1246

154 Vt. 205

STATE of Vermont v. Myron GLEASON.

No. 87-384.

Supreme Court of Vermont.

April 20, 1990.

Robert M. Butterfield, Caledonia County Deputy State's Atty., St. Johnsbury, for plaintiff-appellee.

Walter M. Morris, Jr., Defender General, and Henry Hinton, Appellate Defender, Montpelier, and Robert Appel, Public Defender, St. Johnsbury, for defendant-appellant.

Before ALLEN, C.J., PECK, DOOLEY and MORSE, JJ., and KEYSER, J. (Ret.), Specially Assigned

ALLEN, Chief Justice.

Defendant appeals from the order of the district court revoking his probation and imposing an underlying sentence following his conviction for the misdemeanor offense of lewdness. 13 V.S.A. § 2632(a)(8). We affirm.

The trial court accepted defendant's plea of nolo contendere, issued a suspended sentence of one to three months, and placed defendant on probation. In addition to the standard conditions, the court imposed the special condition, No. 21, that defendant "continue with family counseling at Northeast Kingdom Mental Health." Approximately seven months after the imposition of conditions, defendant's probation officer filed a complaint alleging that defendant had violated two of the standard conditions ¹ and the special condition of his probation. At the probation violation hearing, the probation officer testified that, due in part to defendant's 1973 felony sexual offense conviction, she referred defendant to a sexual offender's treatment program. The probation officer stated that defendant had refused to discuss any sex-related issues or the sexual offense convictions that had brought him before the court.

Roger Putnam, a licensed psychologist with Northeast Kingdom Mental Health (NEKMH), had been counseling defendant for over two years. Mr. Putnam testified that defendant declined to discuss his sexuality or the history of that sexuality. The psychologist stated that defendant had "not addressed the issue in any way with me in a meaningful way and this pattern of massive denial concerns me for his safe[ty] and for the community." In conclusion, Mr. Putnam opined that defendant presented a high risk of repeating some kind of sexually deviant behavior if he did not receive treatment for his "sexual confusion."

The court found that defendant had violated conditions 8 and 21. To allow defendant to continue probation, the court modified condition 21 (21(a)) to require defendant to "discuss issues surrounding sexual behavior and sexual offenses with Roger Putnam at NEKMH twice per month." The modification of condition 21 followed defendant's expression that he wished to continue counseling with Mr. Putnam and was willing to discuss all the issues surrounding the offenses for which he had been convicted. Defendant then signed the modified probation order indicating that he understood it and would abide by the modified conditions.

Approximately five months later, defendant's probation officer filed a second probation violation complaint alleging that defendant had violated conditions 8 and 21(a). At the violation hearing on this complaint, the psychologist testified once again. Mr Putnam explained that defendant faithfully met his appointments and was pleasant. However, "when the agenda focused on any sexual matters or issues, there was a definite change in attitude and cooperation in terms of discussing that particular issue." While defendant elaborated to some extent on his childhood history, his sexual knowledge, and his adolescent sexual experiences, he adamantly refused to engage in any meaningful dialogue regarding his sexual offense convictions. Defendant also "readily dismissed" Mr. Putnam's suggestion that he engage in group therapy or group therapeutic work. Mr. Putnam concluded that because of this "wall of denial," defendant had failed to achieve any insight or self-understanding regarding his sexual behavior and the two offenses in particular. The psychologist testified that, as a result, he discontinued defendant's therapy sessions in the belief that additional counseling would not prove helpful. Defendant's probation officer also testified that defendant declined to discuss his sexual conduct or treatment issues.

The court concluded that defendant had steadfastly refused to discuss the issues surrounding his two sexual offense convictions and had therefore violated 21(a), the modified condition of probation. The court revoked defendant's probation and this appeal followed.

I.

Defendant argues that special condition 21(a) is invalid on its face and therefore could not serve as a basis for the trial court's revocation of defendant's probation. Specifically, defendant contends that the modified condition violated his constitutional right against self-incrimination because it compelled him to discuss issues surrounding the two sexual offenses or face probation revocation and, consequently, incarceration. Any admissions to the therapist could subsequently be revealed to the probation officer. Therefore, defendant maintains that statements of the kind required could only be ordered with a grant of immunity because: (1) any information disclosed would be available to the State for use against him in any future revocation proceeding; and (2) the modified condition required him to confess to the instant offense, to which he never admitted by virtue of his nolo contendere plea, and to any unknown and uncharged acts of sexual deviancy.

At the outset we note that defendant raised none of these objections before the trial court. The policy that requires parties to bring to the attention of the trial court errors capable of correction applies in the context of probation hearings. ² See State v. Cooper, 304 N.C. 180, 183, 282 S.E.2d 436, 439 (1981) ("defendant cannot relitigate the legality of a condition of probation unless he raises the issue no later than the hearing at which probation is revoked"). Ordinarily, this Court will not consider arguments raised for the first time on appeal, even when the defendant asserts a violation of constitutional rights. State v. Stanislaw, 153 Vt. 517, ----, 573 A.2d 286, 292 (1990). Therefore, the trial court's decision will stand unless the revocation of defendant's probation for the violation of special condition 21(a) constitutes plain error.

The nolo contendere "plea is a formal declaration that the accused does not contest the charge" against him. State v. Fisher, 233 Kan. 29, 34, 661 P.2d 791, 796 (1983). Unlike a plea of guilty, a nolo contendere plea is not admissible in another action based on the same act. Id. "However, in the criminal proceeding then pending, the plea of nolo contendere is taken as a complete admission of guilt leading to a judgment of conviction." United States v. Williams, 642 F.2d 136, 139 (5th Cir.1981). When the court accepts a plea of nolo contendere, it has the same effect in that case as a plea of guilty and "authorizes the court for the purposes of the case to treat defendant as though he were guilty." State v. Peck, 149 Vt. 617, 622, 547 A.2d 1329, 1332 (1988); State v. Cox, 147 Vt. 421, 423, 519 A.2d 1144, 1145 (1986); see 2 W. LaFave & J. Isreal, Criminal Procedure § 20.4, at 637 (1984 & Supp.1989) [hereinafter LaFave & Israel] (nolo plea has same effect as guilty plea in terms of its finality and as a waiver of claims unrelated to the plea). A conviction that results from a nolo plea stands on the same footing as a conviction produced by trial or guilty plea, unless a specific statute creates a difference. Williams, 642 F.2d at 139; see LaFave & Israel § 20.4, at 637 (judgment entered on plea of nolo contendere is a conviction and is admissible as such in other proceedings where the fact of conviction has legal significance, e.g., to apply habitual offender penalty provisions, or to claim double jeopardy in a subsequent prosecution). Therefore, though he did not expressly admit his guilt, defendant waived his right to trial, the right to be confronted with witnesses against him, and his privilege against self-incrimination. V.R.Cr.P. 11(c)(4).

While defendant's nolo plea effected a waiver of his privilege against self-incrimination, the waiver "relates only to the determination of guilt or innocence of the crime for which the plea is entered." Cox, 147 Vt. at 423, 519 A.2d at 1145. While awaiting sentencing, a defendant who has pled nolo contendere may invoke the privilege to prevent the possible enhancement of the sentence. Id. However, the imposition of sentence extinguishes the privilege against self-incrimination with respect to the crime of which the accused is convicted and, because of the protection against double jeopardy, defendant faces no threat of subsequent prosecution for the offense.

In Minnesota v. Murphy, 465 U.S. 420, 436, 104 S.Ct. 1136, 1147, 79 L.Ed.2d 409 (1984), the United States Supreme Court confronted the claim that a condition that compelled a defendant to participate in a sexual offender treatment program and "to be truthful with the probation officer in all matters" violated the Fifth Amendment privilege against self-incrimination. The Supreme Court explained that, where questions put to a probationer were relevant to his probationary status and posed no realistic threat of incrimination in a separate criminal proceeding, "there can be no valid claim of the privilege on the ground that the information sought can be used in revocation proceedings" and that "nothing in the Federal Constitution would prevent a State from revoking probation for a refusal to answer that violated an express condition of probation." Id. at 435-36 n. 7, 104 S.Ct. at 1146-47 n. 7.

While the special condition does not contravene the Fifth and Fourteenth Amendments, defendant claims that 21(a) violates Chapter I, Article Ten of the Vermont Constitution. An advocate has the duty to diligently develop and plausibly maintain the state constitutional issues it raises on appeal. State v. Ryea, 153 Vt. 451,...