State v. Carrizales

¶1(dissenting). First, it is clear that Carrizales has not violated a condition of probation. Carrizales's "no contest" plea was bargained with the district attorney. The Criminal Case Settlement includes the requirement, "counseling as deemed necessary by agent." The judgment of conviction imposes the following as a condition of probation: "Defendant to receive any counseling as deemed appropriate by probation agent." The probation agent referred Carrizales to the Jefferson County Human Services Department's (HSD) Sex Offender Program. However, HSD rejected him because he continued to deny his guilt and refused to confess that he had sexual contact with his fourteen-year-old stepdaughter. The judgment did not require as a condition of probation that Carrizales give up his long and firmly held refusal to admit'that he was guilty of the offense charged. I conclude that this case is controlled by State v. Sepulveda, 119 Wis. 2d 546, 350 N.W.2d 96 (1984), on the resentencing question and that State v. Jacobsen, 471 N.W.2d 427 (Neb. 1991), is *98persuasive authority on the question of revocation of Carrizales's probation.

¶2In State v. Sepulveda, the court held that the modification of Sepulveda's terms of probation was not a revocation. The supreme court stated:

We hold that this modification is not a revocation. It is instead a very limited extension of the power to modify the terms of probation and should only be utilized by the courts in cases such as the instant one, where the judge's intent behind the grant of probation is completely frustrated due to the failure of a primary condition.

¶3119 Wis. 2d at 557, 350 N.W.2d at 101-02 (second emphasis added).

¶4That is what this case is about. The trial court's intention behind the grant of probation to Carrizales has been frustrated due to the failure of the primary condition — treatment.

¶5In Sepulveda, the trial court placed the defendant on probation on condition that he voluntarily admit himself to the Mendota Mental Health Institute for intensive inpatient therapy. However, Mendota would not admit him because he refused to admit guilt. The supreme court held that Mendota's refusal to admit Sepulveda was a "new factor" which frustrated the judge's intent behind the grant of probation. Id. at 560-61, 350 N.W.2d at 104. The supreme court concluded that the trial court had authority to modify Sepulveda's sentence without violating his right to be freé from double jeopardy. Id. at 567, 350 N.W.2d at 106-07.

¶6The rule in Wisconsin is that it is inappropriate for a sentencing court to make a change in an imposed sentence unless new factors are made known. State v. Macemon, 113 Wis. 2d 662, 668, 335 N.W.2d 402, 406 (1983); see also Jeffrey Kassel, Comment, Sentence *99Modification by Wisconsin Trial Courts, 1985 WlS. L. Rev. 195, 205. Under Sepulveda, Carrizales's expulsion from the county program is a new factor requiring resentencing.

¶7"New factor" is defined in Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69, 73 (1975):

[T]he phrase "new factor" refers to a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing, either because it was not then in existence or because, even though it was then in existence, it was unknowingly overlooked by all of the parties.

¶8Whether a set of facts fits the legal standard for "new factors" is a question of law. State v. Hegwood, 113 Wis. 2d 544, 547, 335 N.W.2d 399, 401 (1983). An appellate decision that defendant has alleged a new factor would compel the trial court to consider the new factor, but still allow it to exercise its discretion in resentencing the defendant. Comment, 1985 WlS. L. Rev. at 218. Thus, appellate review of whether certain facts constitute "new factors" entails little interference with trial court sentencing discretion. Id.

¶9In Sepulveda, the trial court concluded that defendant's nonacceptance at Mendota constituted "identifiable factual data not known to the trial judge at the time of the original sentencing proceedings." 119 Wis. 2d at 550, 350 N.W.2d at 99. Here, the trial court did not know what counselling the probation officer would require. However, the trial court did not require as a condition of probation that Carrizales admit guilt. Such a requirement would be tantamount to a forced guilty plea impermissible under Scales v. State, 64 Wis. 2d 485, 497, 219 N.W.2d 286, 293 (1974).

¶10*100The Sepulvedacourt observed that the trial judge did not base his decision to incarcerate the defendant on defendant's refusal to acknowledge guilt. 119 Wis. 2d at 556 n.5, 350 N.W.2d at 102. The court, therefore, distinguished the case from Scales v. State upon which Carrizales relies. The court said that whether or not Sepulveda could accept responsibility for his actions was irrelevant since the judge did not choose to incarcerate him based upon his denial, but rather upon the fact that he was unable to be confined at Mendota. Sepulveda, 119 Wis. 2d at 557 n.5, 350 N.W.2d at 102.

¶11It was not a condition of Carrizales's probation that he admit his guilt; it was the termination of coun-selling which frustrated the trial court's purpose in granting probation. Thus, whether Carrizales has a Fifth Amendment right to refuse to admit his guilt is irrelevant. The majority's concentration on this issue caused it to miss the real point of this case.

¶12I conclude that expulsion of Carrizales from the HSD program for sex offenders because he refuses to admit guilt is a "new factor" which requires the trial court to reconsider Carrizales's sentence. Contrary to HSD, an addicted person may benefit from counselling which does not demand an admission of guilt. AA has a cliche which admonishes the beginner: "Bring the body and the mind will follow." That cliche is applicable to any program which treats an addiction of any kind. HSD apparently has concluded that Carrizales will never break through his denial.1 Carrizales claims he has the best of reasons for denial — he is innocent.

¶13I conclude that the "new factor" which frustrates the counselling-condition of probation requires that we reverse the order appealed from and direct the trial *101court to resentence Carrizales. Perhaps the trial court will conclude, as I do, that Carrizales does not need counselling for a sexual disorder. There is no evidence that Carrizales presents a danger to society as a repeat sex offender. He has never been previously charged with or convicted of a sex-related offense. There is nothing in his history to suggest that he has a sexual disorder. However, resentencing is a chancy matter for Carrizales. Carrizales has demonstrated that he is willing to take a chance that the court will find a way to meet its objective in granting probation without requiring that he give up his insistence on his innocence. He has also demonstrated that rather than admit guilt, he is willing to be tried.

¶14After the presentence investigation (PSI) report was filed, Carrizales moved to withdraw his no contest plea. The report made clear that he would be allowed probation only if he abandoned his claim of innocence. The trial court, however, did not follow the PSI report's recommendation. Further, in the plea agreement, the prosecutor had recommended three years probation with such jail time as the PSI report would recommend. However, the report did not recommend jail time but recommended that Carrizales be sentenced to a medium term of confinement in prison. The trial court denied Carrizales's motion to withdraw his plea but gave him the right at the time of sentencing to respond to the PSI recommendation in any way he deemed appropriate.

¶15At the sentencing hearing, Toni's mother, Susan, contradicted her daughter's preliminary hearing testimony that Carrizales had sexual contact with Toni. She testified that Carrizales had gone into Toni's room to discuss conflicts between Toni and her. She and her daughter conflicted on a daily basis about discipline. *102When Susan walked into Toni's bedroom, Carrizales was at the foot of the bed and Toni was lying on the bed covered with a sleeping bag.

¶16Susan further testified that the relationship between Toni and her husband was good until he began to side with her on matters of discipline. She was asked the following question and gave the following answer:

Q. How did she express her dislike?

A. She told me she wanted him out of the house and whatever it would take she would do that because she didn't like the way he disciplined her.

¶17Susan said she was prepared to testify on behalf of her husband at trial but the trial was cancelled and her husband entered the "no contest" plea. She testified that the trial was cancelled "because I thought that my daughter and my relationship was damaged enough already and I was hoping for a reconciliation between us."

¶18At the sentencing hearing, Susan was asked the following questions and gave the following answers:

Q. In the statement that Toni gave the Pre-Sen-tence investigator he states that you then came into her room because her hearing aid squealed.

A. No, I don't remember hearing it squeal.

Q. In the Pre-Sentence Report the investigator reports Toni as stating you saw [Carrizales] molesting her when you entered her room.

A. I saw nothing.

¶19*103Counsel advised the court that Toni had been removed by- HSD from Carrizales’s home and placed in a foster home.

¶20Carrizales also testified. He was asked to explain his admission to the Pre-Sentence Investigator that he may have touched Toni's breasts accidentally. He replied:

[H]e asked me if when I went into the room was she awake or not, and he... said, explain how you woke her up. I said: Well, I shook her, I had to touch her to wake her up because she was asleep.

¶21Carrizales's counsel argued:

Mr. Carrizales is in the awkward position of being pressured both by Probation and by Human Services to make a confession, otherwise they're not recommending probation for him. It's very difficult for any person to make a confession if they truly believe in their own innocence.

¶22Carrizales was offered a plea agreement he could not refuse, even if innocent — three years probation with some jail time as opposed to a possible twenty years imprisonment and a $20,000 fine.2 The court did not inform him, and may not have known, that he would be required as a condition of counselling to admit guilt.

¶23There is nothing in Carrizales's background to label him, as did HSD's evaluators, "an untreated sex offender." He has no other convictions for sex-related offenses. The picture of Carrizales portrayed by the evaluators and the PSI report is of a law-abiding, hard*104working young man. They report that his family "continues to enable his cognitive distortions." In the support groups I am familiar with, that is called "support," without which an addicted person is unlikely to recover. The evaluators' conclusion that Carrizales "is likely to sexually offend again" is a grossly unfair distortion of Carrizales's personality and experience. He has no previous record except a Texas OWI conviction. The evaluators concede that Carrizales is "quite immature" when discussing issues of a sexual nature. He giggles, he blushes, and he makes inappropriate joking sexual comments. He does not present as a "sexual predator."

¶24I agree with HSD that therapy for an addiction is of little use unless the addicted person can break through his or her denial. Denial is the greatest stumbling block to recovery. However, I have seen a practicing alcoholic finally shed his denial after treatment in thirteen facilities. It can happen. It is axiomatic, however, that to recover, the addicted person must be capable "of grasping and developing a manner of living which demands rigorous honesty." Alcoholics Anonymous Big Book 58 (3d ed. 1976). The founders of AA said to the practicing alcoholic, "with all the earnestness at our command, we beg of you to be fearless and thorough from the very start." Id.The requirement of "rigorous honesty" is the bedrock of all addiction-treatment programs.

¶25What if Carrizales really is innocent?3 HSD demands that he lie. That is not consistent with any treatment modality I am aware of.

¶26*105I agree, however, that the courts have no business prescribing the details of treatment programs. The trial court did not impose the "confession" condition on Carrizales; it simply required him "to receive any counseling as deemed appropriate by probation agent." I note that the probation agent who reviewed Car-rizales's case decided to "require treatment at another agency."

¶27*106The record shows that if the trial court does not modify Carrizales's conditions of probation and he continues to assert his innocence, the State may revoke his probation. In State v. Jacobsen, the Nebraska Supreme Court held that evidence that the treatment facility would not accept defendant was insufficient to support a finding that defendant violated probation. 471 N.W.2d at 429-30. The state revoked defendant's probation because he did not complete an alcoholism evaluation and treatment program but joined AA and remained sober for twenty-three months. A Veterans' Administration psychiatrist concluded that Jacobsen should be allowed to continue his AA involvement and did not need inpatient treatment. The supreme court reversed the district court's order affirming revocation of Jacobsen's probation. The court concluded that this evidence did not support a finding that Jacobsen had violated a condition of probation.

¶28The evidence against Carrizales does not support a finding that he violated a condition of probation when he refused to admit guilt. He did not withdraw from HSD's program; he was not expelled for misconduct, but rather, for his stubborn insistence that he is innocent.

¶29I conclude that, consistent with Sepulveda, Car-rizales's expulsion from the sex offender program is a new factor requiring resentencing. I therefore respectfully dissent.