State v. Herndon

• Decision Date: 08 May 2013
• Docket Number: No. 27250.,27250.
• Citation: 742 S.E.2d 375,403 S.C. 84
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. John HERNDON, Appellant. Appellate Case No. 2011–184909.

403 S.C. 84
742 S.E.2d 375

The STATE, Respondent,
v.
John HERNDON, Appellant.
Appellate Case No. 2011–184909.

No. 27250.

Supreme Court of South Carolina.

Heard March 5, 2013.
Decided May 8, 2013.

[742 S.E.2d 376]

Appellate Defender Susan Barber Hackett, of South Carolina Commission on Indigent Defense, of Columbia, for Appellant.

Tommy Evans, Jr., of South Carolina Department of Probation, Parole, and Pardon Services, of Columbia, for Respondent.

Chief Justice TOAL.

[403 S.C. 85]John Herndon (Appellant) appeals the circuit court's order imposing lifetime sex offender registration for his failure to complete sex abuse counseling required by the terms of his probation. We affirm.

Factual/Procedural History

On July 26, 2007, the Beaufort County Grand Jury indicted Appellant for criminal sexual conduct with a minor in the first degree (CSC–First) in violation of section 16–3–655 of the South Carolina Code. On July 1, 2010, Appellant and the State negotiated a plea to Assault and Battery of a High and Aggravated Nature (ABHAN) pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)[403 S.C. 86](Alford plea). The negotiated plea included a sentence of ten years' imprisonment suspended upon the service of five years' probation, and also included two special conditions prohibiting Appellant from contacting the victim, or her family, and requiring Appellant to successfully complete sex abuse counseling. According to the terms of the negotiated plea, Appellant would face lifetime sex offender registration if he failed to successfully complete sex abuse counseling.

The circuit court explained to Appellant the significance of his Alford plea:

The Court: What you are basically doing is you are pleading guilty but you say I'm just doing this to get it over with. I'm not really admitting I did it, but I will go ahead and plead that I did it and suffer the consequences?

Appellant: Yes, sir. I'm not guilty but I'm pleading to this—

The Court: That's what you are doing?

Appellant: Because I'm three years into this—

The Court: If you enter your plea, even if you say it's under Alford, you subject yourself to being sentenced just like you were pleading guilty straight up; do you understand that?

Appellant: Yes.

(emphasis added).

The circuit court also explained the sex abuse counseling requirement of Appellant's probation:

The Court: Now the other condition that I heard is you've got to complete sex offender counseling. If you don't successfully complete that, you are going to have to register as a sex offender forever. Believe me, that's about worse than going to jail?

Appellant: I agree.

....

The Court: Anyway, if you don't like that sex offender counseling once you start it, you can stop it but there are going to be even worse consequences. Do you understand that?

Appellant: Yes, sir.

[403 S.C. 87]The Court: Do you think you can comply with probation if I accept the negotiation?

Appellant: Yes, sir.

The circuit court accepted the negotiated plea, and sentenced Appellant under the plea's terms. Prior to the conclusion of the

[742 S.E.2d 377]

proceeding, the circuit court reminded Appellant of the importance of fulfilling the negotiated plea's counseling requirement:

The Court: You must successfully complete sex abuse counseling. If not completed, you must register as a sex offender. And that's forever. Do you have any questions?

Appellant: No, sir.

(emphasis added).

Appellant initially complied with his probation requirements and began sex abuse counseling with SouthEastern Assessments (SEA) in July 2010. SEA's sex abuse counseling methodology called for Appellant to accept responsibility for the underlying acts of his conviction while undergoing at least three polygraph examinations. The Record suggests that Appellant submitted to at least two polygraph examinations. Appellant failed a polygraph examination on September 15, 2010, and then admitted that he abused the victim in this case, providing details of the abuse. On October 26, 2010, Appellant informed his probation agent that he would not attend a third polygraph examination, although he desired to comply with required sex abuse counseling. Appellant claimed his probation required him to complete sex abuse counseling, but not a polygraph examination, and that he did not want to admit guilt to a sex offense because he pled guilty to ABHAN. As a consequence, Appellant's probation agent issued him a Probation Citation charging Appellant with violating a special condition of his probation:

Appellant has been instructed by his agent to complete Sex Abuse Counseling with [SEA]. [SEA] requested [Appellant], as part of his counseling, to complete a 3rd and subsequent lie detector test in order to be allowed to attend sex abuse counseling classes. [Appellant] has refused to attend any further lie detector test[s] although he has stated he is willing to attend counseling classes. [Appellant] has failed [403 S.C. 88]to follow the advice and instructions of his agent and special condition that he successfully complete sex abuse counseling.

(alterations added).

On November 8, 2010, SEA terminated Appellant from the sex abuse counseling program due to noncompliance, informing Appellant's probation agent that, “The use of the polygraph is a standard of care as established by the Association for the Treatment of Sexual Abusers (ATSA), an international organization dedicated to the assessment and treatment of sexual offenders.”

Appellant appeared before the circuit court on November 18, 2010, regarding the alleged probation violation. The circuit court continued Appellant's probation and ordered Appellant to successfully complete the required sex abuse counseling. However, on January 12, 2011, Appellant received another Probation Citation alleging that he failed to comply with the sex abuse requirement:

Failure to follow the advice and instructions of his agent and the continuation order by [the circuit court] on 11/18/2010 by: Not being able to attend sex offender counseling, offender will NOT admit his guilt, which is a requirement of sex offender counseling. This action constitutes a violation of his original agreement.

(emphasis in original) (alterations added).

On January 28, 2011, Appellant again appeared before the circuit court regarding his second alleged probation violation. Appellant argued that at his original sentencing, the circuit court did not provide adequate notice that Appellant would have to admit guilt as part of his sex abuse counseling. The circuit court rejected Appellant's assertion:

It's clear, from [the] sentencing sheet, condition two of the sentence that [Appellant], one, must complete it and he doesn't complete it he's got to register. It's an either or proposition and that's my reading of it. It's an either or proposition. He hasn't completed it. He's been given every opportunity to complete it. I think he was in front of [the circuit court] last month.... [The circuit court] ordered him to go back and he didn't complete it.... Because he hasn't successfully completed sex abuse counseling, I'm [403 S.C. 89]going to order that he now has to register as a sex offender.... He's had the opportunity to go through sex abuse counseling. He has not successfully completed it as ordered by [the circuit

[742 S.E.2d 378]

court] and so therefore, I am ordering that he register as a sex offender based on his failure to complete counseling.

(alterations added).

Appellant appealed the circuit court's decision, and this Court certified the case for review pursuant to Rule 204(b), SCACR.

Issue Presented

Whether the circuit court erred in requiring Appellant to register as a sex offender for failing to complete sex abuse counseling when Appellant failed to complete sex abuse counseling as a result of his refusal to admit guilt, and Appellant was not given prior notice that completion of counseling would require such an admission.

Standard of Review

The determination to revoke probation is within the discretion of the circuit court. State v. Ellis, 397 S.C. 576, 579, 726 S.E.2d 5, 6 (2012) (citing State v. White, 218 S.C. 130, 135, 61 S.E.2d 754, 756 (1950)). This Court's authority to review the findings of a lower court regarding probation revocation and related issues is confined to the correction of errors of law, unless it appears that the action of the circuit court amounted to a manifest abuse of discretion. Id.

Law/Analysis

Appellant claims that the circuit court failed to provide adequate notice that a condition of his probation required him to admit guilt. The gravamen of Appellant's claim is that his Alford plea allowed him to maintain his innocence, and therefore, he should not have to comply with a probation sanction which requires him to accept responsibility for the crime. Alternatively, Appellant argues that, at the very least, due process required the circuit court inform Appellant of this possibility. We disagree.

[403 S.C. 90]In Alford, a grand jury indicted the defendant, Henry Alford, for first degree murder. Alford, 400 U.S. at 26, 91 S.Ct. 160. Alford directed his attorney to interview several witnesses that Alford claimed would confirm his innocence. Id. at 27, 91 S.Ct. 160. However, the witnesses did not support Alford's claim, and instead provided statements strongly indicating Alford's guilt. Id. Alford's attorney recommended that he plead guilty, and the prosecutor agreed to accept a guilty plea to second degree murder. Id. Alford, of his own volition, pled guilty to the reduced charge. Id. Prior to acceptance of the plea, the trial court heard sworn testimony from a police officer and two witnesses that supported the narrative that shortly before the killing Alford took his gun from his house, stated his intention to kill the victim, and returned home with the declaration that he had carried out the killing. Id. at 28, 91 S.Ct. 160...