State v. Peebles
| Decision Date | 19 October 2010 |
| Docket Number | No. 2009AP3111-CR.,2009AP3111-CR. |
| Citation | 330 Wis.2d 243,2010 WI App 156,792 N.W.2d 212 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Ronnie L. PEEBLES, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Suzanne L. Hagopian, assistant state public defender, Madison.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Christine A. Remington, assistant attorney general, and J.B. Van Hollen, attorney general.
Before HOOVER, P.J., PETERSON and BRUNNER, JJ.
¶ 1 Ronnie Peebles appeals a judgment of conviction for first-degree sexual assault of a child and an order denying his postconviction motion. Peebles argues his trial counsel was ineffective for failing to object, at Peebles' sentencing after revocation, to consideration of several admissions by Peebles, including that he had committed numerous prior sexual assaults. Peebles contends he was compelled to give the incriminating statements during counseling as a condition of his probation. He also asserts the statements were protected by the social worker-client privilege. We agree that Peebles was compelled to give incriminating statements. We therefore remand for resentencing before a new judge and without consideration of the compelled statements.1
[792 N.W.2d 215, 330 Wis.2d 247]
¶ 2 In 2005, Peebles pled no contest to one count of first-degree sexual assault of a child. The State agreed to recommend eight years' imprisonment, consisting of four years' confinement and four years' extended supervision, while Peebles would be free to argue the sentence. However, the State further agreed to abide by the presentence investigator's recommendation if county jail time was recommended. That did occur, and the State honored the agreement at sentencing. The court withheld sentence and placed Peebles on probation for five years, with the condition he serve one year in the county jail. The court further ordered "Sex Counseling/register/be compliant with Sex Offender Program."
¶ 3 Peebles subsequently met with his probation agent and signed the Rules of Community Supervision and the Standard Sex Offender Rules. Both forms warned Peebles, "Your probation ... may be revoked if you do not comply with any of your court-ordered conditions or if you violate any of the following rules." The community supervision rules included the following requirements:
Further, the sex offender rules included the following condition:
You shall fully cooperate with, participate in, and successfully complete all evaluations, counseling, and treatment as required by your agent, including but not limited to sex offender programming. "Successful completion" shall be determined by your agent and treatment provider(s). If sex offender treatment is required you must attend and account for the details of the behavior committed in your conviction offense(s). Failure to admit the offense(s) or provide a detailed description will be considered a violation of your supervision and may result in disciplinary action including the recommendation for revocation of your supervision. Information revealed in treatment concerning your conviction offense(s) cannot be used against you in criminal proceedings.
¶ 4 Peebles later testified he understood that if he did not follow the rules of supervision, including participation in sex offender treatment, he could face incarceration, an alternative to revocation, or revocation from supervision. He participated in sex offender treatment from October 2005 to October 2008. In addition to discussing the offense for which he wasconvicted, Peebles was expected to admit "all sexual behaviors (number of times, number of victims)," to give "details of past hidden crimes," and to complete a "sexual history time line." Peebles testified he believed that if he did not talk about other sex offenses in treatment he "wouldn't be cooperating with my counselor and I'd be revoked."
¶ 5 As part of treatment, Peebles was subjected to a polygraph examination in which he was asked about other offenses. According to Peebles' probation agent, probationers who are supervised as sex offenders may be "compelled" to take a polygraph as a condition of supervision so the agent can determine "if they're telling us the truth, if they're abiding by their rules." Peebles testified he thought he could be revoked if he refused to take a polygraph.2
¶ 6 Peebles' probation was ultimately revoked based on four rules violations, after Peebles waived his revocation hearing.3 The agent's revocation summary,which the agent provided to the circuit court, repeated various admissions made by Peebles in sex offender counseling. The agent later testified that the admissions were conveyed from Peebles' sex offender treatment counselor.
¶ 7 The revocation summary indicated Peebles admitted in treatment that he had in excess of twenty child victims throughout his adult life and that he is a "pedophile." Among other things, it also reported that Peebles admitted viewing pornography and consuming alcohol while on probation. Those admissions were made to the polygraph examiner immediately before a polygraph examination. Additionally, the summary included a Plotkin Analysis, which is a table setting forth three "functional objectives" and requiring the agent to insert the "relevant factors" for each. The agent relied on Peebles' admissions in part for one of the three categories, and entirely for another. For all three, the agent marked the "necessary response intensity" as high. 4
¶ 8 At Peebles' sentencing after revocation, the court observed that Peebles' admissions in treatment, particularly to being a pedophile and having overtwenty victims, were "significantly new information" that the court intended to rely upon. The court further indicated it was "shaken to [its] roots" by the admissions because at the original sentencing the information was that Peebles "had no prior record of any type of aberrant sexual behavior." The court imposed a forty-year sentence consisting of twenty-five years' initial confinement and fifteen years' extended supervision.
¶ 9 Peebles argued in a postconviction motion that the court's consideration atsentencing of admissions made in treatment violated his right against self-incrimination and the statutory privilege for patient-social worker communications. He further argued trial counsel was ineffective for failing to challenge the use of those statements. The circuit court denied the motion, observing that Peebles could have refused to cooperate with his probation and counseling requirements, including the polygraph. Peebles now appeals, renewing the arguments presented in his postconviction motion.
¶ 10 Both the Fifth Amendment to the United States Constitution and article I, section 8 of the Wisconsin Constitution provide that a person may not be compelled in any criminal case to be a witness against himself or herself. "The essence of this basic constitutional principle is 'the requirement that the State which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips.' " Estelle v. Smith, 451 U.S. 454, 462, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) (quotingCulombe v. Connecticut, 367 U.S. 568, 581-82, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961)). Further, the "privilege is 'as broad as the mischief against which it seeks to guard,' and ... is fulfilled only when a criminal defendant is guaranteed the right 'to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence.' " Id. at 467, 101 S.Ct. 1866 (quoting Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 35 L.Ed. 1110 (1892), overruled in part by Kastigar v. U.S., 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972); Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964)).
¶ 11 Peebles argues three cases, taken together, establish he was unlawfully compelled to incriminate himself. We summarize each in turn. We observe at the outset, however, that there are two general types of Fifth Amendment cases: in one, the person remains silent in the face of attempted compulsion and faces some penalty; in the other, the person gives an incriminating statement and later seeks to exclude it from a criminal proceeding because it was compelled. It is helpful to understand this distinction and bear it in mind.
¶ 12 In State v. Evans, 77 Wis.2d 225, 228, 252 N.W.2d 664 (1977), the defendant pled guilty and was placed on probation. While on supervision, he was charged with committing new crimes. Id. On the advice of counsel, he refused to inform his probation agent where he was on the days of the alleged crimes. Id. at 228-29, 252 N.W.2d 664. At a revocation hearing for his refusal to speak, the defendant again refused to account for his whereabouts. Id. at 229, 252 N.W.2d 664. The department revoked his probation and he was returned to court for sentencing. Id. at 230, 252 N.W.2d 664.
¶ 13 The supreme court recognized that the privilege against self-incrimination extends to persons on...
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