No. 90-493
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA,
Plaintiff and Respondent,
DONALD GLENN IMLAY,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Billy B. Miller, Miller & Cook,
Great Falls, Montana
For Respondent:
Honorable Marc Racicot, Attorney General, Helena
Montana; Elizabeth L. Griffing, Assistant Attorney
General, Helena, Montana; Patrick L. Paul, Cascade
County Attorney, Great Falls, Montana; Kim Schulke
Chief Deputy County Attorney, Great Falls, Montana
Submitted on Briefs: March 28, 1991
Decided: June 18, 1991
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Following a jury trial, the defendant, Donald Glenn Imlay, was
convicted in District Court of sexual assault, a felony, in
violation of 5 45-5-502, MCA. Based on that conviction, he was
sentenced by the ~istrictCourt to five years in the Montana State
Prison. However, all but 35 days of that sentence were suspended,
and the defendant was placed on formal probation, under certain
conditions, including the condition that he enroll in and complete
a sexual therapy program. When the defendant enrolled in, but was
unable to complete the sexual therapy program, his suspended
sentence was revoked and he was ordered imprisoned at the Montana
State Prison for the remainder of his five-year term. The
defendant appeals from the District Court's order revoking his
suspended sentence. We reverse the order of the District Court.
On appeal, the defendant raises several issues. We find the
following issue, as restated by this Court, to be controlling:
Can a criminal defendant, as a condition of a suspended
sentence, be compelled to admit that he is guilty of the crime of
which he has been accused and convicted?
FACTUAL BACKGROUND
On May 9, 1989, the State of Montana was granted leave to file
an Information charging the defendant with three counts of sexual
assault, a felony. On September 5, 1989, that Information was
amended so that the acts complained of were combined into one
count. The basis for the Information was the allegation that on
April 11, 1989, the defendant fondled the vaginal area of a
seven-year-old girl while she was present at his Great Falls
grocery store. The Information was based on statements made by the
girl to her teacher after she arrived at school several hours late.
This case went to trial on September 11, 1989, and the jury
returned its verdict on September 13, 1989, finding the defendant
guilty of the crime charged.
Prior to sentencing, the usual pre-sentence investigation was
conducted, including a psychological evaluation of the defendant.
As a result of that investigation, the District Court found that
the defendant was a 56-year-old widower who had raised four adult
children and had an extensive history of full-time employment. He
had no prior criminal record, nor was there any prior history of
any complaints of similar conduct by the defendant.
The psychologist who examined the defendant, as part of the
pretrial investigation, concluded that he was suffering from post-
traumatic stress syndrome and was in a severely depressed state of
mind. He recommended that the defendant not be incarcerated, but
that he be involved in a mental health therapeutic program with
psychiatric work and counseling.
Based upon its pre-sentence investigation, the District Court
found that the defendant was not a dangerous person, that his
offense was an isolated incident, and that it would not be repeated
in the future. The court also found that the defendant was
suffering from medical problems, and that incarceration in the
State Prison was not an appropriate penalty.
The defendant's sentencing hearing was held on October 17,
1989. On that same date, the District Court sentenced the
defendant to five years in the Montana State Prison. However,
execution of the sentence was suspended, except for the 35 days he
had already served in the Cascade County Jail. He was placed on
formal supervised probation under the rules and regulations of the
Adult Probation and Parole Bureau and was ordered to enroll in a
sexual therapy program at his own expense, and to continue in that
program until it was no longer deemed necessary by his therapist.
The specific sentence provision regarding sexual therapy was as
follows:
The defendant is to immediately enroll in a sexual
therapy program at his own expense and continue said
program until his therapist deems further counseling and
therapy unnecessary. The Court would recommend that the
defendant obtain his therapy at the sexual offender
treatment program located in Helena, Montana.
As conditions of his suspended sentence, the defendant was
also ordered to pay any counseling costs incurred by the victim and
prohibited from being around children unless another adult was
present.
On June 8, 1990, the County Attorney petitioned the District
Court for revocation of the defendant's suspended sentence for two
reasons: (1) the State contended that the defendant was not
gainfully employed; and (2) the State alleged that the defendant
had not completed the sexual treatment program which was a
condition of his suspended sentence.
The defendant denied violating the terms of his suspended
sentence, and an evidentiary hearing was conducted on August 31,
1990. At that hearing, the defendant's probation officer, and the
counselor to whom he had been referred for sexual therapy,
testified. The defendant also testified on his own behalf.
The defendant testified that at that time he was living with
his mother in Absarokee where he had moved following trial because
he no longer had a business, a job, or any income.
He had interviewed for and sought work as an electrician, and
as a custodian, but was unable to satisfy the physical requirements
for either job. He suffered from high blood pressure and
degenerative joint disease.
When unable to find employment, the defendant had applied for
vocational rehabilitation through the State Department of Social
and Rehabilitation Services. After an independent medical
examination, he had apparently qualified forthose services and was
being retrained by SRS to do leather work which he was performing
at his mother's home. He had sold some of the work and had orders
for more items which he had been unable to complete.
He testified that in order to comply with the court's order
regarding enrollment in a sex offender program he contacted his
probation officer, who referred him to Mike Sullivan, a counselor
in Billings, Montana. He scheduled and attended a number of
counseling sessions, but was finally advised that he did not
qualify for Sullivan's treatment program because he would not admit
that he was guilty of the crime of which he had been charged and
convicted. He then talked to Ron Silvers, the director of the
sexual offender program in Helena, and was told that he would not
be admitted to that program either.
Michael Sullivan testified that he is a licensed clinical
social worker practicing in Billings, and was director of a program
known as South Central Treatment Associates. He has a bachelor's
degree in psychology, a master's degree in associate work, and is
a licensed social worker in the State of Montana. At the time of
the defendant's hearing, Sullivan had been involved in the
treatment of sexual offenders for approximately five years.
The defendant first saw Mr. Sullivan, by referral from his
probation officer, on November 20, 1989, and saw him on five
subsequent occasions over the next six months. Each appointment
was scheduled by the defendant. The defendant attended every
scheduled appointment. He was described by Sullivan as pleasant,
friendly, never angry or abusive, and always punctual.
Sullivan performed a series of tests on the defendant. There
were no indications in those tests that the defendant was capable
of violent conduct. However, from those tests and his contacts
with the defendant, Sullivan formed the impression that the
defendant was not amenable to outpatient sexual offender treatment
because he did not admit that he committed a sexual offense.
Sullivan testified that the defendant's denial made it impossible
for him to treat him in their program. He also testified that
there was no other outpatient sexual therapy program in the State
of Montana which would treat a sexual offender who denied that he
was guilty of sexual misconduct.
He confirmed that after the defendant had been rejected from
his program, the defendant had sought treatment from Ron Silvers
at the sexual therapy program in Helena, and that he (Sullivan) had
been contacted by Silvers to determine why the defendant had been
unacceptable for the Billings program.
Sullivan recommended a form of inpatient treatment, which is
more structured and continuous, because in such a program it is
more difficult for a patient to maintain defensive postures, such
as denial. He testified that the only inpatient treatment program
in the State of Montana was the one at the Montana State Prison.
Based upon the foregoing evidence, the District Court found
that the State's complaint about the defendant's lack of employment
was not well founded. The court found that the defendant was
making a bona fide effort to maintain employment and was actively
pursuing vocational rehabilitation.
However, regarding the State's second basis for its petition
to revoke the suspended sentence, the court made the following
conclusion:
The Court concludes that the defendant has violated the
condition of his suspended sentence by not enrolling (not
being amenable to treatment and hence, not acceptable
into an out-patient treatment program) in a sex offender
treatment program and said violation was proven by a
preponderance of the evidence.
. . . Because the only viable alternative is an in-
patient treatment program, the Court concludes that the
defendant's suspended sentence must be revoked and the
defendant ordered to serve FIVE (5) years in the Montana
State Prison with credit for 35 days.
It is recommended to the Warden of the Prison that the
defendant not be eligible for parole until he has
completed the sexual offender treatment program at the
prison. However, it is also recommended that upon
completion of the program, the defendant be considered
for parole. The defendant is designated as a non-
dangerous offender for parole eligibility purposes.
The defendant, through his attorney, objected at the time that
the sentence was revoked on the grounds that the District Court
was conditioning suspension of the defendant's sentence on an
admission of guilt, and cited authority to the District Court that
it could not force the defendant to plead guilty. The issue
previously stated, therefore, was properly preserved for appeal.
DISCUSSION
While the District Court's order revoking the defendant's
suspended sentence is predicated upon the defendant's failure to
enroll in a sex offender treatment program, it is clear that the
defendant's incarceration at the Montana State Prison is directly
related to his refusal to admit that he committed a crime. The
defendant made every other effort possible to enroll in and
complete a sex offender treatment program. He sought a referral
from his probation officer. He followed up that referral by
scheduling not one, but six consecutive appointments. He attended
every appointment in a timely fashion, and other than admitting his
guilt, cooperated in every manner possible while at those
appointments. When he was rejected by the counselor with whom he
had spent six months, he tried to find another sex offender
treatment program that would admit and treat him, and was rejected
a second time. Finally, he was advised that there was no
outpatient sex offender treatment program in Montana that would
accept him.
It is clear that the only thing the defendant has failed to
do is admit that he committed the crime for which he was convicted.
Whether or not punishment can be augmented because of a defendant's
refusal to admit guilt, even after he has been convicted, is a
question on which the federal courts are not in agreement.
Furthermore, this Court has made contradictory statements in answer
to that same issue.
The majority of federal courts of appeal which have addressed
this issue follow the decision of the United States Court of
Appeals for the Fifth Circuit in Thomas v. United States, 368 F.2d
941 (5th Cir. 1966).
In that case, prior to imposing sentence, the district court
judge advised the defendant that if he confessed his guilt the
court would take his confession into consideration in determining
the length of his sentence, but that if he persisted in his denial
of guilt, that denial would also be taken into account. Because
the defendant chose to continue denying guilt, he was sentenced to
the maximum term permitted by law. That sentence was vacated by
the Fifth Circuit, based on its conclusion that the alternatives
presented to the defendant violated his Fifth Amendment right not
to be a witness against himself. The Court of Appeals acknowledged
that the defendant had already been convicted, but pointed out:
It must be remembered that, at the time of his
allocution, Thomas had not been finally and irrevocably
adjudged guilty. Still open to him were the processes
of motion for new trial (including the opportunity to
discover new evidence), appeal, petition for certiorari,
and collateral attack. Indeed, appeal is now an integral
part of the trial system for finally adjudicating the
guilt or innocence of a defendant.
The two I1ifsl1 which the district court presented to
Thomas placed him in a terrible dilemma. If he chose the
first "if,I1 he would elect to forego all of the above-
noted post-conviction remedies and to confess to the
crime of perjury, however remote his prosecution for
perjury might seem. Moreover, he would abandon the right
guaranteed by the Fifth Amendment to choose not to be a
witness against himself, not only as to the crime of
which he had been convicted, but also as to the crime of
perjury. His choice of the second llifll made after
was
the warning that the sentence to be imposed would be for
a longer term than would be imposed if he confessed.
From the record, it is clear that an ultimatum of a type
which we cannot ignore or approve confronted Thomas.
Truly, the district court put Thomas "between the devil
and the deep blue sea."
Thomas suffered the consequences for choosing the second
.
"ifv1 . . in the form of a longer prison term. When
Thomas received harsher punishment than the court would
have decreed had he waived his Fifth Amendment rights,
he paid a judicially imposed penalty for exercising his
constitutionally guaranteed rights. Upon this ground
alone, we think that his sentence is I1subject to
collateral attack,I1 and have little doubt as to the
authority and duty of the district court to vacate the
sentence.
Thomas, 368 F.2d at 945-46. In accord with Thomas, are Scott v.
United States, 419 F.2d 264 (D.C.Cir. 1969) ; United States v. Laca,
499 F. 2d 922 (5th Cir. 1974); United States v. Wright, 533 F. 2d 214
(5th Cir. 1976). In Poteet v. Fauver, 517 F. 2d 393 (3d Cir. 1975),
the United States Court of Appeals for the Third Circuit concluded
that augmentation of a post-conviction sentence based on refusal
to admit guilt violated the due process clause of the Fourteenth
Amendment of the United States Constitution.
In the past, this Court has given apparent approval to the
Thomas rule. Although the case of In the Matter of Jones, 176
Mont. 412, 578 P.2d 1150 (1978), was decided on other grounds, we
cited with approval the following rule of law in that case:
While the sentencing judge may take into account his
belief that the defendant was not candid with the court
this is to be distinguished from the rule that a sentence
may not be augmented because a defendant refuses to
confess or invokes his privilege against self-
incrimination. Fox v. State, (1977 Alaska) , 569 P.2d 1335,
1338. See: UnitedStatesv. Garcia, (3rd Cir., 1976), 544 F.2d
681, 685; U i e S a e v. Acosta, (5th Cir., 1975), 509 F.2d
n t d tts
539, cert. denied, 423 U.S. 891, 96 S.Ct. 188, 46 L.Ed.2d
122 (1975); U i e S a e v. Rogers, (5th Cir., 1974) , 504 F. 2d
n t d tts
1079, 1085, cert. denied, 422 U.S. 1042, 95 S.Ct. 2655,
45 L.Ed.2d 693 (1975).
The only Federal Circuit which appears to have arrived at a
contrary conclusion is the Ninth Circuit.
In Gollaher v. United States, 419 F.2d 520 (9th Cir. 1969),
the Ninth Circuit Court of Appeals considered the Thomas decision
and chose not to follow it. In that case, the defendant was also
given a stiffer sentence because of his refusal to admit guilt
after he was convicted, and challenged that sentence as a violation
of his Constitutional privilege against self-incrimination.
However, the Ninth Circuit, on balance, placed greater importance
on the criminal justice system's objective of rehabilitation, than
on a defendant's continued right to deny guilt. In rejecting the
Thomas rationale, the Ninth Circuit has stated:
This case presents a dilemma which every trial judge
faces at the time of sentence. It is almost axiomatic
that the first step toward rehabilitation of an offender
is the offender's recognition that he was at fault. In
the present state of the criminal law, there is no doubt
that punishment is still a consideration in the
imposition of sentence, especially where non-violent or
economic crimes are involved. But to the extent that
rehabilitation is the objective, no fault can be found
of the judge who takes into consideration the extent of
a defendant's rehabilitation at the time of sentence.
Gollaher chose to insist upon his innocence. The judge,
bound by the jury's verdict and apparently also being
firmly convinced by the evidence that Gollaher was
guilty, proceeded accordingly. He had before him a man
unwilling to take the first step toward rehabilitation
and he imposed sentence accordingly. Gollaherts Fifth
Amendment rights were not infringed.
Gollaher, 419 F.2d at 530-31.
Our prior decision in State v. Donnelly, 47 St.Rep. 1600, 798
appears in accord with the Ninth Circuit s
decision in Gollaher. In Donnelly, we were asked to decide whether
a defendant, who was already imprisoned at the Montana State
Prison, was denied his right to avoid self-incrimination when he
was denied parole until he completed a sex offender course at the
Prison. Interestingly, the evidence in that case was that in order
to be accepted into the inpatient sexual offender program at the
Prison, that defendant also had to admit that he committed the
crime of which he was convicted. (Therefore, if the trial court's
objective in this case was to obtain treatment for Donald Imlay,
imprisonment does not appear to be the solution.) At any rate, we
found that denying probation under those circumstances did not
violate the defendant's privilege against self-incrimination. Our
decision appears to have been based on the following conclusion:
Here, defendant's decision to remain silent is a tactical
one, not a compelled one. Defense counsel argues that,
in reality, defendant's testimony is in fact compelled
since it is a prerequisite for parole. It is possible
the defendant may be paroled sooner if he admits to
incest than if he remains silent. However, defendant
may remain silent if he so chooses, and still possibly
be paroled at some future date based on good behavior.
Furthermore, failure to admit to incest will not result
in certain penalty to defendant, it will only result to
preserve his current ineligible parole status. In this
case, the district court ordered that the defendant was
ineligible for parole u t l the satisfaction of a condition
ni
subsequent. The condition subsequent is partially
satisfied by defendant's successful completion of the
sexual offender program at Montana State Prison. Failure
to satisfy this condition subsequent, i.e., failure to
satisfactorily complete the sex offender program, will
not result in a penalty, but will merely result in
defendant's continued ineligibility for parole.
Donnelly, 47 St.Rep. at 1607-08, 798 P.2d at 96.
Without debating the merits of the foregoing conclusion from
Donnell~,it is clear that in this case the defendant is being
subjected to a penalty that he would not otherwise be subjected to
if he would simply admit his guilt. That penalty is that he serve
time in the Montana State Prison.
Even though the defendant has already been convicted of the
crime that he denies, our system still provides, as noted in the
Thomas decision, for opportunities to challenge that conviction.
For example, the defendant still had the right to challenge his
conviction, based on newly discovered evidence, or by collateral
attack. These are important rights guaranteed to every defendant
under our criminal justice system, but would be rendered
meaningless if the defendant could be compelled to admit guilt as
a condition to his continued freedom. Furthermore, while such a
defendant would be foreclosed from invoking the protection of such
procedures to establish his innocence, the reliability of an
admission of guilt under such circumstances would be highly
suspect. In addition, by admitting guilt in this case, the
defendant would have to abandon his right guaranteed by the Fifth
Amendment, not only as to the crime for which he has been
convicted, but also to the crime of perjury. He testified in his
own defense during his trial and denied committing the offense with
which he was charged.
Under these circumstances, and absent any grant of immunity,
we believe that the better reasoned decisions are those decisions
which protect the defendant's constitutional right against
self-incrimination, and which prohibit augmenting a defendant's
sentence because he refuses to confess to a crime or invokes his
privilege against self-incrimination. To the extent that our
decision in Donnellv is inconsistent with this opinion, that part
of the Donnellv decision is overruled.
The sentence of the District Court is vacated and this case
remanded to the District Court for further proceedings not
inconsistent with this opinion.
We Concur: