Present: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and
Millette, JJ., and Carrico, S.J.
JAMES CARROLL
OPINION BY
v. Record No. 091987 SENIOR JUSTICE HARRY L. CARRICO
November 4, 2010
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we decide whether a person charged with
rape who enters an Alford plea and is placed on probation
violates the terms of his probation by refusing to admit his
guilt during the course of ordered treatment for sex
offenders. The circuit court held that the defendant, James
Carroll, was in violation of his probation for his refusal
to make such an admission. The Court of Appeals of Virginia
affirmed the judgment of the circuit court. We will affirm
the judgment of the Court of Appeals.
THE ALFORD PLEA
The use of an Alford plea arose out of the Supreme
Court’s decision in North Carolina v. Alford, 400 U.S. 25
(1970). There, the Court held as follows:
An individual accused of crime may voluntarily,
knowingly, and understandingly consent to the
imposition of a prison sentence even if he is unwilling
or unable to admit his participation in the acts
constituting the crime.
Id. at 37.
This Court explicated the Alford plea in Parson v.
Carroll, 272 Va. 560, 636 S.E.2d 452 (2006). There, we
stated as follows:
Based on [the] holding in Alford, the courts in this
Commonwealth in the exercise of their discretion have
permitted criminal defendants who wish to avoid the
consequences of a trial to plead guilty by conceding
that the evidence is sufficient to convict them, while
maintaining that they did not participate in the acts
constituting the crimes. See e.g., Patterson v.
Commonwealth, 262 Va. 301, 302 n. 1, 551 S.E.2d 332,
333 n.1 (2001); Reid v. Commonwealth, 256 Va. 561, 563
n.1, 506 S.E.2d 787, 788 n.1 (1998); Zigta v.
Commonwealth, 38 Va. App. 149, 151 n.1, 562 S.E.2d 347,
348 n.1 (2002); Perry v. Commonwealth, 33 Va. App. 410,
412-13, 533 S.E.2d 651, 652-53 (2000).
Id. at 565-66, 636 S.E.2d at 455. See also the following
cases in which defendants made Alford pleas since Parson:
Malbrough v. Commonwealth, 275 Va. 163, 168, 655 S.E.2d 1, 3
(2008); Neighbors v. Commonwealth, 274 Va. 503, 506, 650
S.E.2d 514, 515 (2007).
BACKGROUND
On June 18, 2007, a grand jury in the Circuit Court of
Arlington County indicted James Carroll for the rape of a
child less than thirteen years of age. Code § 18.2-61. The
rape occurred between 1982 and 1984, and the child was
Carroll’s stepdaughter, who was then twelve years old.
On September 6, 2007, Carroll and the Commonwealth’s
Attorney signed a plea agreement. In the document, Carroll
stated that he was “going to plead guilty to the crime of
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Rape,” although he did not “admit that [he] committed the
crime to which [he was] pleading guilty,” because he had
“decided it [was] in [his] interest to accept the
prosecutor’s offer to enter into this agreement.” He also
stated he understood that “by pleading guilty [he] may
receive the same penalties as if [he] had been convicted of
the same crime after a trial by a jury or by a judge sitting
without a jury.”
Also on September 6, 2007, the circuit court conducted
a hearing on Carroll’s guilty plea. The following colloquy
ensued between the court and Carroll:
THE COURT: Are you pleading guilty because you are, in
fact, guilty and no other reason?
THE DEFENDANT: Yes, sir.
. . . .
THE COURT: Tell me what an Alford plea is.
. . . .
THE DEFENDANT: Well, what the plea is, it says that
the prosecutor feels he has enough evidence to convict
me even though I don’t think I’m guilty of the crime.
THE COURT: And you don’t want to take that chance.
THE DEFENDANT: Correct.
. . . .
THE COURT: Okay. Now, do you . . . understand that the
legal consequences of an Alford plea are the same as a
guilty plea or a finding of guilt?
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THE DEFENDANT: That’s what I am told [by my attorney].
. . . I know what I am doing.
. . . .
THE COURT: What is your plea? Alford plea at this
time?
THE DEFENDANT: Yes, sir.
. . . .
THE COURT: Let the record reflect that the plea is
made freely and voluntarily with an understanding of
its nature and its consequences.
After a proffer by the prosecutor of what the evidence
would have shown, the circuit court accepted Carroll’s plea
of guilty and convicted him of rape. Pursuant to the plea
agreement, the court suspended the imposition of sentence
for five years, directed that Carroll be of general good
behavior, have no contact with the victim or her family, and
pay court costs.
The circuit court also placed Carroll on supervised
probation during the period of suspension. The court’s
sentencing order entered on September 20, 2007, provided
that Carroll “shall comply with all the rules and
requirements set by the Probation Officer” and that
“[p]robation shall include any substance abuse counseling,
testing, and/or treatment as prescribed by the Probation
Officer.”
4
The court informed Carroll that if, at the end of the
suspension period, he had fulfilled “all these conditions,
[he] can withdraw this plea [of guilty], enter a plea of
guilty to assault and battery, and the Court will impose a
fine of $750 in accordance with [the plea] agreement.” The
case was continued until September 14, 2012, for final
disposition.
On October 5, 2007, Carroll filed a motion to amend the
sentencing order to provide that “[n]o sex offender
treatment be prescribed or required by the Probation
Officer” because the “incident occurred over 20-something
years ago,” there have been “no allegations” against Carroll
since, and “there is no need for any treatment.” The
circuit court did not grant the motion and ordered that “any
sex offender treatment is to be determined by the
Defendant’s supervising Probation Officer.”
On March 6, 2008, Carroll began attending a sex-
offender treatment group to which he had been assigned by
his probation officer for sex offender therapy. As part of
this treatment program, Carroll was required to admit his
guilt to the crime of rape with which he had been charged.
He refused to make the admission or otherwise cooperate and,
after the therapy staff had worked with him for two months,
he was terminated from the program on May 7, 2008. The
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prosecutor then moved for the revocation of Carroll’s
probation.
The circuit court held a hearing on the prosecutor’s
motion on June 13, 2008. Opposing the motion, Carroll
argued that the requirement that he admit his guilt would be
“a breach of the plea agreement . . . [a]s part of an Alford
plea.” The court found Carroll in violation of his
probation and asked defense counsel “why [Carroll] should
not go to jail?” Counsel urged that Carroll be allowed to
participate in individual sex offender therapy provided by
Dr. Stanton E. Samenow, a psychologist who was not certified
as a sex offender therapist.
The circuit court did not grant the request for
individual sex offender therapy. Instead, in an order
entered June 17, 2008, the court vacated the sentence
imposed and suspended in the September 20, 2007 order,
sentenced Carroll to five years imprisonment, with the five
years suspended for a period of five years upon the “special
condition” that Carroll “enter & complete sex offender
treatment as directed by his Probation Officer.”
Carroll then filed a petition for appeal with the Court
of Appeals containing a Statement of Questions Presented
reading as follows:
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1) Whether the trial court erred in finding Appellant
in violation of probation based solely on Appellant’s
refusal to admit to rape during sex offender therapy
given the fact that the Commonwealth agreed to and the
court accepted an Alford plea?
2) Whether the trial court erred in not considering a
reasonable alternative treatment modality (sex offender
treatment with an expert forensic psychologist) in lieu
of probation revocation coupled with the condition of
successfully completing the same program from which
appellant was terminated?
Carroll v. Commonwealth, 54 Va. App. 730, 737, 682 S.E.2d
92, 95 (2009).
ANALYSIS
Breach of Plea Agreement
Carroll argued the two questions quoted above and also
argued that the revocation of his probation violated the
terms of the plea agreement he signed with the Commonwealth.
However, a majority of the Court of Appeals held that it
could not “consider the plea agreement terms” because under
“Rule 5A:12(c) ‘[o]nly questions presented in the petition
for appeal will be noticed by the Court of Appeals’ ” and
“[n]either question [presented in Carroll’s petition] asks
us to consider whether the trial court’s decision finding
that Carroll was in violation of his probation was a breach
of the terms of the plea agreement.” Carroll, 54 Va. App.
at 737, 682 S.E.2d at 95-96.
7
Carroll argues here that he did ask the Court of
Appeals in his Statement of the Questions Presented “to
consider whether the trial court’s decision finding that
Appellant was in violation of his probation was a breach of
the terms of the plea agreement.” Quoting the definition of
an Alford plea in Black’s Law Dictionary 83 (9th ed. 2009)
as a “guilty plea that a defendant enters as part of a plea
bargain, without actually admitting guilt,” Carroll submits
that “but for the plea bargain, manifested as a written plea
agreement in this case, there is no Alford plea; they are
not divisible in this case, and the elements of an Alford
plea, paragraphs 5 and 15, are contained within the Plea
Agreement.” 1
We disagree with this argument. Obviously, there is
some connection between the plea agreement and the Alford
plea in this case, but Carroll failed to make the connection
in his Statement of the Questions Presented. Like the
requirement in our Rule 5:17(c) for assignments of error,
the purpose of questions presented in the Court of Appeals
is to “point out the errors with reasonable certainty in
order to direct [the] court and opposing counsel to the
points on which appellant intends to ask a reversal of the
1
In Paragraphs 5 and 15 of the plea agreement Carroll
agrees to plead guilty but maintains his claim of innocence.
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judgment, and to limit discussion to these points.” Yeatts
v. Murray, 249 Va. 285, 290, 455 S.E.2d 18, 21 (1995)
(internal quotation marks omitted). And like assignments of
error under this Court’s Rule 5:17(c), it was the duty of
Carroll’s counsel to “lay his finger on the error” in his
Statement of Questions Presented in the Court of Appeals. 2
See First National Bank of Richmond v. William R. Trigg Co.,
106 Va. 327, 342, 56 S.E. 158, 163 (1907) (internal
quotation marks omitted).
Carroll’s questions presented fail to conform to these
requirements. Neither the words “breach” and “plea
agreement” nor any synonyms appear anywhere in the statement
and are not connected in a way that would inform the Court
of Appeals and the Commonwealth “with reasonable certainty”
that Carroll intended to ask for a reversal of the judgment
against him on the ground that the revocation of his
probation was a breach of the plea agreement. In short,
Carroll’s counsel simply failed to “lay his finger on the
error” in his Statement of the Questions Presented.
Accordingly, we will not give further consideration to
2
Effective July 1, 2010, the rules of the Court of
Appeals were changed to require assignments of error rather
than questions presented.
9
Carroll’s argument concerning a breach of the plea
agreement. 3
Refusal to Admit Guilt
This brings us to Carroll’s argument that the Court of
Appeals erred in “affirming the trial court’s revocation of
[his] probation because [he] refused to accept
responsibility in sex-offender treatment by admitting to
rape based upon his Alford plea as a matter of law.”
Carroll contends that the “probation of one who has entered
an Alford plea cannot be revoked for refusing to admit to
the offense, thereby accepting responsibility for the
offense, after entering the plea” and that this “is
particularly the case when the trial court does not warn the
defendant prior to or at the time of entering the plea that
he/she will be required to admit to the offense at a later
time, such as, in treatment.” 4
3
Carroll requests that we invoke the “ends of justice”
exception of Rule 5:25 and consider the plea agreement
question if we hold he did not preserve the point in the
Court of Appeals. The application of the exception is
justified only when failure to do so “would result in a
grave injustice.” Gheorghiu v. Commonwealth, 280 Va. 678,
689, 701 S.E.2d 407, 413 (2010) (this day decided); see also
Charles v. Commonwealth, 270 Va. 14, 17, 613 S.E.2d 432, 433
(2005). Upon the record before us in this case, we cannot
say that if the exception is not applied “a grave injustice”
would result.
4
In its opinion, the Court of Appeals expressed
Carroll’s argument in much more succinct terms than he
expresses it. The court wrote that “[a]t its core,
10
Carroll cites our decision in Parson v. Carroll, quoted
previously herein, which involved a defamation action
brought by Thomas Parson against Robert Carroll. 272 Va. at
562, 636 S.E.2d at 452. Parson had entered an Alford plea
to six counts of sexual battery with Carroll as the victim
and then filed a defamation action against Carroll for
telling others what Parson had done to him. Id. at 562, 636
S.E.2d at 453. The trial court granted Carroll’s motion for
summary judgment, holding that the doctrine of judicial
estoppel barred the defamation action. This Court reversed,
holding that when Parson entered his Alford plea, he
“conceded only that the evidence was sufficient to convict
him of the offenses and did not admit as a factual matter
that he had participated in the acts constituting the
crimes,” and this “concession of law did not provide a basis
for applying judicial estoppel.” Id. at 566, 636 S.E.2d at
455. Further, “[b]ecause the material facts of Parson’s
motion for judgment were still in dispute at this stage of
the proceedings, the circuit court further erred in awarding
Carroll summary judgment.” Id.
Carroll’s argument is that an Alford plea, by its nature,
contains an implicit promise that the defendant will never
be required to admit his guilt.” 54 Va. App. at 743, 682
S.E.2d at 98.
11
Parson is not controlling. In Parson, a civil case,
this Court decided that a concession made in an Alford plea
is a concession of law and not of fact and is not a bar to a
post-Alford proceeding in which the issue is whether, as a
matter of fact, the accused participated in the acts
constituting the offense. Here, the Commonwealth has not
claimed that Carroll’s concession in his Alford plea should
be treated as an admission of factual guilt. Rather, the
Commonwealth correctly points out that Parson “did not
discuss or hold anything with respect to the effect an
‘Alford plea’ has in a criminal case or that it guarantees a
defendant special rights with respect to probation
conditions.” The important point to be made here is that
nothing in the Alford opinion, the Parson opinion, or any
other Virginia opinion indicates that an Alford plea is a
bar to a post-Alford proceeding in which a sex offender is
required to admit his guilt during treatment.
Carroll cites two decisions from other jurisdictions in
support of his position. In State v. Birchler, 2000 Ohio
App. LEXIS 4622, at *8 (Ohio Ct. App. 2000) (unpublished),
the court reversed the judgment revoking the defendant’s
probation because he was not given notice when he offered
his Alford plea that he would be required to admit he had a
victim in order to complete his probation. In People v.
12
Walters, 627 N.Y.S.2d 289, 290-91 (N.Y. Cnty. Ct. 1995), the
judgment revoking the defendant’s probation was reversed
because he was not informed when he entered his Alford plea
that he would be required to admit his guilt to the
underlying crime during therapy. Later, however, the Court
of Appeals of New York held directly opposite to Walters.
Silmon v. Travis, 741 N.E.2d 501, 504 (N.Y. 2000).
In addition to this decision of the Court of Appeals of
New York, the decisions of one United States Court of
Appeals and the highest courts of three other states support
the Commonwealth’s position. See Warren v. Richland Cnty.
Cir. Ct., 223 F.3d 454 (7th Cir. 2000); People v. Birdsong,
958 P.2d 1124 (Colo. 1998); State v. Faraday, 842 A.2d 567
(Conn. 2004); State ex rel. Warren v. Schwarz, 579 N.W.2d
698 (Wis. 1998). We will follow their lead.
The two Warren cases, involving the same defendant, are
of special interest. In the case decided by the Supreme
Court of Wisconsin, Philip I. Warren was charged with the
sexual assault of a child. He entered an Alford plea, was
placed on probation, participated in sex offender treatment,
refused to admit his guilt, and had his probation revoked.
He argued that the revocation of his probation because he
refused to admit his guilt violated his right to due
13
process. In response, the Supreme Court of Wisconsin held
as follows:
[W]hen the State required Warren to admit to the sexual
assault in this case, it did not act inconsistently
with the ‘bargain’ it had made to ‘induce’ his guilty
plea. A defendant’s protestations of innocence under
an Alford plea extend only to the plea itself.
A defendant may choose to enter an Alford plea for
various reasons. He may wish to take advantage of the
state’s offer for a reduced sentence. He may wish to
spare himself or his family of the expense and
embarrassment of a trial. Whatever the reason for
entering an Alford plea, the fact remains that when a
defendant enters such a plea, he becomes a convicted
sex offender and is treated no differently than he
would be had he gone to trial and been convicted by a
jury.
. . . .
[W]e hold that the revocation of Warren’s probation for
failure to admit his guilt after acceptance of his
Alford plea did not violate his right to due process.
579 N.W.2d at 706-07.
Warren then filed a petition for habeas corpus in
federal court challenging the revocation his probation. In
rejecting the challenge, the Seventh Circuit Court of
Appeals stated as follows:
Warren believes that the acceptance of an Alford plea
is an assurance that a defendant will not have to admit
guilt during either conviction or punishment. He is
wrong. He can maintain his innocence at the drug
store, the grocery store and any other public place he
desires. But, when in the private setting of sex
offender counseling that is ordered as a condition of
probation, and his admission is necessary for
rehabilitation, he must admit responsibility for his
conduct.
14
223 F.3d at 459.
Carroll attempts to distinguish the decision of the
Supreme Court of Wisconsin on the ground that before the
trial court accepted the Alford plea it advised Warren that
if he was placed on probation he would “very likely . . . be
ordered” to undergo counseling and he would “have an
obligation to enter into counseling in good faith with the
counselor, the psychiatrist, or doctor.” Warren, 579 N.W.2d
at 703. In his case, Carroll says, he “had no warnings that
his refusal to admit to a rape would be cause for his
probation to be revoked.”
However, the “good faith” statement by the trial court
in Warren falls far short of a “warning that [a defendant’s]
refusal to admit to a rape would be cause for his probation
to be revoked,” so that part of Warren provides Carroll
little comfort. Indeed, Warren himself did not consider it
sufficient. He argued separately that the circuit court’s
failure to inform him at the time of his Alford plea that he
would be required to admit his guilt during treatment
rendered the plea unknowing and involuntary. The Supreme
Court of Wisconsin responded as follows:
[I]t is well-established that in informing defendants
of their rights, courts are only required to notify
them of the ‘direct consequences’ of their pleas.
Defendants do not have a due process right to be
15
informed of consequences that are merely collateral to
their pleas.
. . . .
[W]e conclude that the circuit court was not required
to inform Warren that his probation could be revoked
for failing to take responsibility for his actions
because it was only a collateral consequence of his
conviction.
579 N.W.2d at 708-09 (citations omitted).
We hold that the record in this case fully supports the
conclusion that Carroll violated the terms of his probation
by refusing to admit his guilt during sex offender
treatment. We hold further that Carroll’s failure to
receive warning at the time he entered his Alford plea that
such a refusal could result in the revocation of his
probation is a collateral and not a direct consequence of
his plea and does not render the revocation improper.
Alternative Treatment
Citing Peyton v. Commonwealth, 268 Va. 503, 604 S.E.2d
17 (2004), Carroll argues that “[u]nder the circumstances of
this case, the revocation of [his] probation in lieu of an
alternative treatment modality, and then the requirement for
successful completion of the same program, are unreasonable
and are not an appropriate exercise of conscientious
judgment by the trial court.” In Peyton, the defendant was
convicted of a drug offense, given a suspended sentence, and
placed on probation conditioned upon his entry into and
16
successful completion of his participation in the Detention
Center Incarceration Program pursuant to Code § 19.2-316.2.
Id. at 506, 604 S.E.2d at 18.
When Peyton was within one month of completing his
participation in the program, he became ill, was
hospitalized, and was removed from the program for
“medical/psychological reasons.” Id. at 507, 604 S.E.2d at
18. The trial court held a show cause hearing, revoked the
suspended sentence, and ordered Peyton to serve the original
sentence. The trial judge stated he did not question the
“sincerity” of Peyton’s desire to complete the program, but
said there was not “anything I can do.” Id.
The Court of Appeals affirmed the trial court’s
judgment, and this Court reversed the judgment of the Court
of Appeals. We held that the circuit court abused its
discretion in revoking the suspended sentence, and we stated
as follows:
There is surely a distinction between the willful
failure of an inmate to comply with the requirements of
the detention center program and the conditions of his
suspended sentence permitting his participation in that
program and the subsequent inability of the inmate to
do so resulting from an unforeseen medical condition.
268 Va. at 511, 604 S.E.2d at 21.
Carroll can hardly equate himself with Peyton or his
situation with Peyton’s. Carroll did not refuse to admit
17
his guilt during sex offender treatment because of some
inability resulting from an unforeseen condition that arose.
Rather, his refusal was an out-and-out “willful failure
. . . to comply with the requirements” of his probation
officer. Id.
The “revocation of a suspended sentence lies in the
discretion of the trial court and . . . this discretion is
quite broad,” but “[t]he cause deemed . . . sufficient for
revoking a suspension must be a reasonable cause.” Hamilton
v. Commonwealth, 217 Va. 325, 326-27, 228 S.E.2d 555, 556
(1976) (citations and internal quotation marks omitted).
The same discretion applied when the circuit court was
called upon here to decide whether Carroll should be allowed
to receive alternative treatment and what penalty should be
imposed for his earlier failure to successfully complete sex
offender treatment.
We certainly cannot say that the circuit court abused
its discretion or acted unreasonably in refusing to allow
Carroll to be treated in some unsupervised situation by
someone not versed in the treatment of sex offenders. Nor
can we say that the circuit court abused its discretion or
acted unreasonably in ordering Carroll to participate in the
same program he was discharged from earlier. The circuit
court merely gave Carroll a second chance to avoid
18
imprisonment, which is one of the reasons a defendant enters
an Alford plea in the first place.
CONCLUSION
For the reasons assigned, we will affirm the judgment
of the Court of Appeals.
Affirmed.
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