Zebbs v. Commonwealth
| Decision Date | 17 May 2016 |
| Docket Number | Record No. 0933–15–1. |
| Citation | 785 S.E.2d 493,66 Va.App. 368 |
| Parties | Arthur Amil ZEBBS v. COMMONWEALTH of Virginia. |
| Court | Virginia Court of Appeals |
Charles E. Haden, Hampton, for appellant.
Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: DECKER, ATLEE, JJ. and FRANK, S.J.
ATLEE
, Judge.
As a term of his probation for various sex crimes, Arthur Zebbs was ordered to complete sex offender treatment. This treatment required Zebbs to admit that he had committed the crimes for which he was on probation. Zebbs refused to make such an admission, and was removed from treatment as a result. Because Zebbs failed to complete the treatment, a judge of the Circuit Court for the City of Hampton (“the circuit court”) found him in violation of the terms of his probation. Zebbs now appeals that revocation, arguing that the treatment program's requirement that he admit his past crimes violated his rights under both the Fifth Amendment to the United States Constitution and Article I, § 8 of the Virginia Constitution
. We do not agree with Zebbs's contention, and we affirm the circuit court's decision.
In 2002, Zebbs entered guilty pleas, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)
,1 to three charges: forcible sodomy (a felony in violation of Code § 18.2–67.1 ) and two counts of unlawful filming of a minor (misdemeanors in violation of Code § 18.2–386.1(A) ). Pursuant to a plea agreement, the circuit court sentenced Zebbs to twenty-five years in prison with thirteen years suspended for the sodomy charge, and to a combined twenty-four months of incarceration, all suspended, for the misdemeanors. As a term of the partial suspension of his sentences, Zebbs's plea agreement required him to “undergo and complete sex offender treatment.”2 The trial court's sentencing order required this as well.3 In 2012, after serving his penitentiary sentence, Zebbs was released to probation. Completion of sex offender treatment was a term of his probation. The Commonwealth filed a show cause against Zebbs in 2013 for failing to follow his probation officer's instructions, specifically for failing to admit, during the course of sex offender treatment, that he committed the crimes for which he was on probation. In that revocation proceeding, the circuit court found Zebbs in violation of the terms of his probation, but took “no further action to revoke the sentence,” and ordered him to continue with probation and sex offender treatment.4
A second show cause was issued in January of 2015 at the request of Zebbs's probation officer. In the motion accompanying the 2015 show cause, the probation officer alleged that Zebbs failed “[t]o follow the Probation Officer's instructions and be truthful and cooperative.” At the revocation hearing, Zebbs's attorney confirmed the specific basis of the allegation when he asked the probation officer: “And the only reason that [Zebbs] was discharged [from sex offender treatment] was his refusal to admit that he had committed the offense for which he was on probation, correct?” The probation officer responded: “Correct.”
The most detailed description of Zebbs's refusal to admit his crimes is found in the “Sex Offender Treatment Discharge Summary,” admitted into evidence without objection as a Commonwealth's exhibit at the hearing on June 10, 2015.5 That document reads, in part:
The circuit court found Zebbs in violation of his probation, revoked and resuspended all but one year of the suspended time in connection with the sodomy charge, and revoked and resuspended all time on the misdemeanor charges. This appeal followed.
When reviewing probation revocation proceedings on appeal, “the trial court's ‘findings of fact and judgment will not be reversed unless there is a clear showing of abuse of discretion.’ ” Green v. Commonwealth, 65 Va.App. 524, 532, 779 S.E.2d 207, 211 (2015)
(quoting Davis v. Commonwealth, 12 Va.App. 81, 86, 402 S.E.2d 684, 687 (1991) ). However, we examine Zebbs's Fifth Amendment claim de novo. See
Crawford v. Commonwealth, 281 Va. 84, 97, 704 S.E.2d 107, 115 (2011). Whether reviewing a trial court's decision for abuse of discretion or de novo, we continue to view “the evidence and all reasonable inferences fairly deducible therefrom in the light most favorable to the Commonwealth, the prevailing party at trial.” Id. (quoting Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924 (2000)
).
The Self–Incrimination Clause of the Fifth Amendment to the United States Constitution provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” Although inapplicable to the states at the time it was originally enacted, the Fifth Amendment now “applies to the States by virtue of the Fourteenth Amendment.” Maryland v. Shatzer, 559 U.S. 98, 103, 130 S.Ct. 1213, 1219, 175 L.Ed.2d 1045 (2010)
(citing Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964) ).6 Violations of the Fifth Amendment privilege against self-incrimination occur in two ways. In the first scenario, the state attempts to compel an individual to make a statement which might incriminate him in a future criminal trial, the individual invokes the Fifth Amendment and refuses to make such a statement, and the individual is punished for his refusal. In the second scenario, the state compels an individual to make a statement which might incriminate him in a future criminal trial, the individual makes such a statement, and the individual's statement is later used against him in a future criminal trial. See
Venable v. Commonwealth, 48 Va.App. 380, 387 n. 3, 632 S.E.2d 1, 4 n. 3 (2006). If Zebbs falls into either of these categories, it would be the first, because he gave no incriminating statement, and asserts that he was punished for his refusal to do so.
A valid Fifth Amendment claim in such a scenario requires three things. First, the admission sought from an individual must carry a risk of incriminating that individual in a future criminal proceeding. Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274 (1973)
. Second, the state must use compulsion in its attempt to obtain the admission. Lefkowitz v. Cunningham, 431 U.S. 801, 806, 97 S.Ct. 2132, 2136, 53 L.Ed.2d 1 (1977). Third, because “mere coercion does not violate the text of the Self–Incrimination Clause,” Chavez v. Martinez, 538 U.S. 760, 769, 123 S.Ct. 1994, 2002, 155 L.Ed.2d 984 (2003) (plurality opinion), there must be “a ‘substantial penalty’ [imposed] upon [an individual] after he ‘elect[ed] to exercise his Fifth Amendment right not to give incriminating testimony against himself,’ ” Venable, 48 Va.App. at 389, 632 S.E.2d at 6 () (quoting Cunningham, 431 U.S. at 805, 97 S.Ct. at 2135 ). Failure to establish any one of these three prongs defeats a claim that the Fifth Amendment has been violated.
In Venable, a probationer refused to admit that he committed the crime of which he had been convicted, as required by his sex offender treatment program. He was discharged from the program, and was found in violation of his probation as a result. Venable claimed that the admission demanded of him violated his Fifth Amendment rights, because it would subject him to “a possible perjury charge in regards to [his] testimony concerning [his] conviction.” Id. at 384, 632 S.E.2d at 3
. (Unlike Zebbs, who entered an Alford plea of guilty, Venable pled not guilty and was convicted after a trial.) This Court found that Venable's Fifth Amendment rights had not been violated. This Court assumed, for purposes of the appeal, that Venable's admission of guilt would have placed him in danger of prosecution for perjury. However, the Court found that, because the trial court had not revoked any of Venable's suspended time, and had instead permitted him to enroll in a different sex offender program, there was no “substantial penalty” imposed on Venable as a result of the exercise of his Fifth Amendment rights. Id. at 389, 632 S.E.2d at 5. This finding obviated the need for the Court to “reach the issue of whether forcing a probationer to choose between either losing his conditional liberty or incriminating himself during court-ordered counseling constitutes ‘compulsion’ within the meaning of the Fifth Amendment.” Id. at 389, 632 S.E.2d at 5–6
.
Here, we need not grapple with the questions of compulsion or the imposition of a substantial penalty, because we find that incrimination (as it is understood in the Fifth Amendment context) was not present. In Venable, the Court assumed, “for purposes of this appeal only, that Venable's admission of guilt would be self-incriminating.” Id. at 388 n....
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