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Admissions in treatment can’t be used after revocation

Hon. Michael W. Hoover

Hon. Michael W. Hoover

When a court sentences a defendant after revocation of probation, it can’t consider other crimes he was compelled to admit to his agent as a condition of probation.

“His supervision rules required that he be truthful, that he submit to lie detector tests, and that he fully cooperate with and successfully complete sex offender counseling,” Wisconsin Court of Appeals Judge Michael W. Hoover found. “Therefore, … his statements were compelled for purposes of the Fifth Amendment.”

Ronnie L. Peebles was convicted of first-degree sexual assault of a child in 2005. 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 also ordered sex offender treatment, which required him to provide true information of his crimes to his agent.

For three years, Peebles participated in sex offender treatment, and admitted that he had sexually assaulted more than 20 different children throughout his life.

Peebles’ probation was ultimately revoked for unrelated reasons, and the probation agent’s revocation summary included these admissions.

Citing these admissions at the sentencing after revocation, the circuit court imposed 25 years of initial confinement and 15 years of extended supervision.

Peebles then argued in a postconviction motion that the court’s consideration of admissions he made in treatment violated his right against self-incrimination, and that his attorney was ineffective for not challenging the statements.

The circuit court denied the motion, but the Court of Appeals reversed.

Reviewing applicable precedents, the court distilled the following four rules: If a probationer refuses to incriminate himself as required by a condition of supervision, he cannot be automatically revoked on that ground; if the probationer refuses despite a grant of immunity, his probation may be revoked on that basis; any incriminating statements the probationer provides under the grant of immunity may be used as justification for revocation, but not used in any criminal proceedings; and if a probationer is compelled by way of probation rules to incriminate himself, the resulting statements may not be used in any criminal proceeding.

Applying the principles to Peebles’ case, the court concluded that his statements were compelled, and thus, could not be used at sentencing.

The court distinguished State v. Brimer, 2010 WI App 57, 324 Wis.2d 408, 781 N.W.2d 726, which held that similar admissions could be used at a reconfinement hearing, after revocation of supervised release, because a reconfinement hearing is an administrative proceeding rather than a criminal one.

Because the admissions were inadmissible, the court found that trial counsel was ineffective for failing to object.

David Ziemer can be reached at david.ziemer@wislawjournal.com

What the court held

Case: State v. Peebles, No. 2009AP3111-CR

Issues: Can admissions made in treatment, a mandatory condition of probation, be used at sentencing after revocation?

Holdings: No. The statements are compelled and therefore can’t be used at a sentencing hearing.

Attorneys: For Plaintiff: Christine A. Remington, Madison; For Defendant: Suzanne L. Hagopian, Madison.

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