Probationer’s incriminating statements cannot be used to increase revocation sentence

By Joe Forward, Legal Writer, State Bar of Wisconsin

Oct. 21, 2010 – Incriminating evidence derived from counseling sessions in which a probationer admitted past crimes involving sexual contact with children were inadmissible in determining the probationer’s sentence after probation revocation.

That’s what the District III Wisconsin court of appeals held in State v. Peebles, 2009AP3111-CR (Oct. 19, 2010), a case in which the appeals court found that Ronnie Peebles’ counsel was ineffective for failing to object when the state introduced incriminating statements at a probation revocation sentencing hearing.

Peebles pled no contest in 2005 to one count of first-degree sexual assault of a child. The state recommended, and honored, a sentencing agreement of four years imprisonment with four years extended supervision. But the circuit court withheld sentencing, and placed Peebles on five years of probation with one year in the county jail. The court also ordered counseling.

As a condition of probation, Peebles was required to attend a sex offender treatment program. He did so for three years between 2005 and 2008. Treatment required Peebles to discuss his offense, and the details of past hidden crimes. He was also subject to polygraph tests. At one point, Peebles admitted that he had "in excess of twenty child victims” in the past.

Ultimately, Peebles violated his probation on several grounds. At his revocation sentencing hearing, the court recognized the treatment admissions as “significantly new information” upon which the court would rely and sentenced him to 25 years in prison with 15 years extended supervision.

In a postconviction motion, Peebles argued that considering admissions made during treatment violated his right against self-incrimination under the Fifth Amendment to the U.S. Constitution and article I, section 8 of the Wisconsin Constitution.

The circuit court denied the motion, “observing that Peebles could have refused to cooperate with his probation and counseling requirements, including the polygraph.” Peebles appealed.

Compelled admissions 

Because Peebles was required to cooperate and complete sex offender treatment or risk revocation, the appeals court found that his statements “were compelled for purposes of the Fifth Amendment.”

The appeals court rejected the state’s argument that admissions were not incriminating “because there was no realistic threat that he would be prosecuted for them.”

“Whether statements might be incriminating in a future criminal proceeding is an irrelevant inquiry” in Fifth Amendment situations where a person “gives an incriminating statement and later seeks to exclude it from a criminal proceeding because it was compelled,” the court explained.

That is, Peebles sought to exclude statements that were “incriminating in the criminal proceeding from which he sought their exclusion."

The court also rejected the state’s argument that the statements were not compelled, “because he could have just refused to comply with probation at numerous times.”

“[A] probationer’s statements are compelled if he or she must choose between providing them or jeopardizing his or her conditional liberty by remaining silent,” the court wrote.

The appeals court remanded the case for resentencing before a new judge “without consideration of the compelled statements” based on Peebles’ claim that his counsel was ineffective for failing to move for exclusion of the compelled statements.

Failing to object was a deficiency, the court explained, and Peebles was prejudiced by the deficiency “because the circuit court acknowledged that it relied significantly on Peebles’ admissions when determining the sentence.”