People v. Birdsong , 1998 Colo. J. C.A.R. 2360 ( 1998 )

Justice KOURLIS

delivered the Opinion of the Court.

This case raises the question of whether a guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), requires additional advisement and findings prior to acceptance by. the trial court, or whether the acceptance of such a plea constrains the court in later revocation of probation. proceedings.¹ • Douglas Birdsong entered an Alford plea to misdemeanor third degree sexual assault as part of a plea agreement that involved the dismissal of two class three felonies and one class four felony. The parties stipulated in writing to a probationary sentence including offense-specific treatment, which the court accepted.. Accordingly, the court sentenced Birdsong to four years probation, conditioned upon the successful. completion of an offense-specific treatment program. Birdsong’s treatment providers ultimately terminated him from therapy because he continued to deny the sexual intent of his acts: the very objection that had caused him to enter an Alford plea. The trial court revoked Birdsong’s probation and sentenced him to twenty-four months in county jail. On appeal, the court of appeals reversed the probation revocation. The court of appeals determined that Birdsong’s plea was not valid because a term of his sentence was inconsistent with his Alford plea and the trial court had failed to advise him of the inconsistency. See People v. Birdsong, 937 P.2d 877, 878-79 (Colo.App.1996). We conclude that Birdsong’s plea was valid and therefore reverse the judgment of the court of appeals.

I.

Birdsong was originally charged with one count of sexual assault on a child, a class four felony; one count of sexual assault on a child by one in a position of' trust, a class three felony; and one count of aggravated incest, also a class three felony.²

The criminal charges were based on allegations made by Birdsong’s five-year-old daughter that he had touched her genitals under her clothes with his hands and feet. The child’s mother reported the allegations to the Adams County Department of Social Services when the daughter returned from weekend visits with her father suffering from a rash in her vaginal area that worsened after subsequent visits.³

Birdsong originally pleaded not guilty to the charges and the court set the matter for a jury trial. However, on January 12, 1995, Birdsong pleaded guilty to third degree sex-uai assault, a first degree misdemeanor, in exchange for dismissal of the felony counts.⁴ Birdsong maintained that the acts were not motivated by sexual gratification and thus entered an Alford plea pursuant to which he maintained innocence as to that element of the charge. At a January 12, 1995 provi-dency hearing, the court found that it was familiar with the evidence in the case, that Birdsong had admitted to inappropriately touching his daughter, and that Birdsong acknowledged that there was sufficient evidence which if believed by a jury could result in a verdict of guilty on the felony charges. The court also specifically advised Birdsong that it would treat his Alford plea the same as a guilty plea for sentencing purposes. The court made detailed findings as to the factual basis for the guilty plea and accepted it.

The court imposed a four-year sentence of probation conditioned upon successful completion of offense-specific therapy. The conditions of Birdsong’s probation stated, among other things:

7. You will obtain an evaluation, counseling or treatment for drug use, alcohol abuse, or mental conditions required by the court or probation officer. You will immediately enter, attend or remain in and successfully complete treatment as recommended in a specified facility or program and meet all financial obligations of that program, [part of pre-printed form]

12. You will enter, enroll, and successfully complete a sex offender specific treatment program, [handwritten addition]

By the time Birdsong entered his plea, he had already attended approximately one year of sex offender treatment at the Aurora Community Mental Health Center as part of his court-ordered treatment in the dependency and neglect action. He therefore continued with that treatment in order to comply with the conditions of probation in this case.

The sex offender treatment in which Birdsong was enrolled consisted of four phases. The first phase, the denial phase, was for offenders who denied either their acts or the sexual intent of their acts. Phases two, three and four were the actual treatment phases of the program. Completion of the program involved all four phases and typically took between two and five years.

Birdsong attended fifty-five sessions in the denial group, all the while acknowledging that he may have inappropriately touched his daughter, but denying that he did so for purposes of sexual gratification or pleasure. At the end of the denial phase of the program, the treatment team assessed Birdsong and determined that he was still in denial, and therefore was not suited to participate in the ensuing treatment phases of the program. Birdsong received no further treatment.

The People filed a complaint for revocation of Birdsong’s probation on July 5,1995. The court determined that Birdsong had not successfully completed the necessary treatment, and that he had therefore violated a condition of his probation. The court revoked his probation on December 21, 1995. At the postrevocation sentencing hearing, Birdsong moved for reconsideration of the revocation. Birdsong argued that because his treatment providers determined that he was not eligible for continued therapy, he had completed the offense-specific therapy and had not violated a condition of his probation. The court denied the motion.

Birdsong told the court at the resentencing hearing that at the time he entered-his Alford plea he knew that he would have to admit guilt in the treatment program even if he protested his innocence in his guilty plea. However, he said he thought his attorney had made a deal with the district attorney and the judge whereby he would only have to attend the denial phase of therapy. He further stated that even though the judge at the providency hearing stressed successful completion of the therapy program, he just went along with it “because I thought all of this was already taken care of.” Birdsong said he thought the judge knew “that all I had to do was go through the denier’s group and I didn’t have to go through the other three [phases of the program]; therefore, when [the judge] asked me all of these questions I was just saying yes yes yes because I thought it was already taken care of.”

In resentencing Birdsong to twenty-four months in the county jail with work release, the court explained:

The bottom line is that probation is not a right, but rather a privilege, and in this particular situation there is an essential requirement in order to qualify for that privilege, and that requirement is that the person be amenable to treatment in the offense specific therapy program, otherwise there is no point in probation in these types of eases.

Birdsong appealed the revocation of his probation. On appeal, Birdsong argued that because he entered an Alford plea, the trial court erred in revoking his probation based on his refusal to admit guilt in the sexual offender treatment program. The court of appeals agreed and remanded the case to the trial court for further proceedings, relying in part on People v. Walters, 164 Misc.2d 986, 627 N.Y.S.2d 289 (Cty.Ct.1995), for the conclusion that the acceptance of an Alford plea was directly inconsistent with a finding that refusal to admit guilt constituted a probation violation. The court of appeals suggested that the trial court consider the following list of recommended options: (1) permit Birdsong to withdraw the Alford plea and reinstate the charges; (2) permit Birdsong to continue on probation after the court determines that he understands and agrees to the successful completion of the deniers’ phase and further understands and agrees to the requirement that successful completion will require him to admit his guilt as to all the elements'of third degree sexual assault; or (3) permit Birdsong to continue on probation and eliminate his successful completion of the treatment program as a condition of probation. See Birdsong, 937 P.2d at 878.

We view the case differently from the court of appeals. An Alford plea is a guilty plea. As such, the trial court’s obligations to advise the defendant were no greater than with any other guilty plea. Similarly, the trial court’s concession to the defendant in accepting the Alford plea did not create an implicit agreement to permit him to continue on probation in the face of violation of the clear and reasonable conditions of that probation.

II.

A.

Alford pleas arose out of the United States Supreme Court decision North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). There the Court held that states could allow defendants to plead guilty even though they protested their innocence so long as their pleas were valid under standards set forth in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969),⁵ and were supported by a factual basis. See Alford, 400 U.S. at 31, 91 S.Ct. at 164. In .essence, an Alford plea permits a defendant to assert innocence as to one or more elements of the crime, but consent to the imposition of the conviction and penalty. If courts accept such pleas, they can convict and sentence defendants who enter them. See id. at 36-7, 91 S.Ct. 160.

The Court found that the characterization of Alford’s plea as a guilty plea as opposed to a plea of nolo contendere was of no constitutional significance.⁶ "t reasoned that the Constitution is concerned with the practical consequences, not the formal categorizations, of guilty pleas under state law. The Court concluded that an express admission of guilt “is not a constitutional requisite to the imposition of a criminal penalty.” Id. at 37, 91 5.Ct. 160. Further, the Court reasoned that “an individual accused of crime may voluntarily, knowingly, and understanding^ 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.

Significantly, the Court perceived no material difference between a plea that refused to admit commission of the criminal act and a plea containing a protestation of innocence so long as the defendant intelligently concluded that his interests required entry of a guilty plea and the record before the judge contained strong evidence of actual guilt. See id.

B.

The defendant argues that the plea was deficient because the trial court failed to advise him that he would have to admit guilt in order to complete treatment, and failure to complete treatment would result in a revocation of probation. However, the specific requirements of a treatment program and the harmony between those requirements and the defendant’s perception of his guilt does not fall within the aegis of the trial court’s necessary advisement to the defendant.

Rather, the trial court must advise the defendant of the direct consequences of the conviction to satisfy the due process concerns that a plea be made knowingly and with a full understanding of the consequences thereof. See People v. Pozo, 746 P.2d 523, 526 (Colo.1987); see also People v. Hrapski, 718 P.2d 1050, 1055-56 (Colo.1986); People v. Adrian, 701 P.2d 45, 47-8 (Colo.1985). Accordingly, a guilty plea is not rendered invalid by a trial court’s failure to warn a defendant of the collateral consequences of his guilty plea. See Pozo, 746 P.2d at 526.

Direct consequences are those which have definite, immediate and largely automatic effect on the range of possible punishment. See People v. Ruiz, 935 P.2d 68, 69 (Colo.App.1997). “The essential element defining a ‘direct consequence’ of a guilty plea is that it have an effect on the range of punishment.” Id. Our courts have found the maximum penalty to which a defendant could be sentenced for a particular conviction, see People v. Moore, 841 P.2d 320, 324 (Colo.App.1992); and the imposition of a mandatory period of parole, see People v. Coleman, 844 P.2d 1215, 1219 (Colo.App.1992), to be direct consequences.

In contrast, this court has found that the possible use of a guilty plea in future proceedings and potential federal deportation consequences are collateral consequences. See People v. Heinz, 197 Colo. 102, 106, 589 P.2d 931, 933 (1979), and Pozo, 746 P.2d at 526. Similarly, a defendant’s prison security classification is a collateral consequence. See Ruiz, 935 P.2d at 69-70.

Here, the possibility that Birdsong’s probation would be revoked if he continued to maintain innocence as to his motives for the inappropriate contact with his daughter is not a direct consequence. Viewed from the perspective ■ of the time of the providency hearing, revocation would certainly not be automatic, for an individual might be willing to admit to something in a therapeutic setting but not in a court of law. Additionally, we do not expect a trial court to maintain working familiarity with all requirements of certain types of treatment programs so as to be able to advise defendants with particularity about those requirements before accepting pleas that involve probation. That responsibility falls to the defendant and his or her counsel.

C.

Here, the trial court specifically advised Birdsong at the providency hearing that the charge of third degree sexual assault carried a possible sentence to the county jail of up to two years. In the written conditions of probation, the trial court required Birdsong to successfully complete offense-specific therapy. When Birdsong violated that condition of his probation, the court sentenced him to twenty-four months in county jail. Thus, the condition of Birdsong’s probation had no effect on the range of his punishment and hence was not a direct consequence. See Coleman, 844 P.2d at 1219 (concluding that because length of defendant’s total sentence, including period of parole, was less than maximum he was told he could receive, court’s failure to advise defendant of mandatory parole did not render plea involuntary).

D.

Birdsong also argues .that the written condition of probation requiring him to complete a sex offender treatment program successfully is inconsistent with the plea agreement reached between the parties. Birdsong maintains that the plea agreement required only that he be evaluated and complete any treatment “recommended by the treatment providers.” He argues that once he completed the denial phase of the program, no additional treatment was recommended.

We find two flaws in Birdsong’s argument. First, Birdsong signed the document setting forth the successful completion of treatment as a condition of probation. If he had wished to challenge that condition as inconsistent with his plea agreement, he could have moved to withdraw his plea prior to the imposition of sentence. See Crim. P. 32(d); People v. Chippewa, 751 P.2d 607, 609 (Colo.1988)(“Crim.P. 32(d) provides for a motion to withdraw a plea of guilty before sentence is imposed.”). He did not do so.

Similarly, Birdsong has never filed a motion for postconviction relief seeking to var-éate his plea on the basis that he mistakenly and detrimentally relied upon a plea agreement that differed from the terms and conditions of probation.⁷

At a probation revocation hearing, “[t]he issues for determination ... are whether the defendant has violated a valid condition' of his or her probation and, if so, what action is appropriate in light of the violation.” People v. Ickler, 877 P.2d 863, 866 (Colo.1994). Birdsong did not seek to withdraw the plea at the time of the revocation hearing. Accordingly, the trial court was well within its discretion to proceed with the merits of the question of whether Birdsong had violated his probation.

E.

Birdsong, lastly argues that by accepting the Alford plea, the court was precluded from later revoking his probation for the same refusal to .admit guilty intent. To the contrary, the court specifically informed Birdsong that the plea would be treated as a guilty plea for sentencing purposes. The trial court accepted the Alford plea as a concession to the defendant, with no implications or assurances as to future revocation proceedings.

The Wisconsin Court of Appeals reached the same conclusion in State ex rel. Warren v. Schwarz, 211 Wis.2d 708, 566 N.W.2d 173 (App.1997), a factually similar case decided on due process grounds.⁸ We find the Warren court’s reasoning to be persuasive here.

In Warren, the defendant was convicted of first degree sexual assault on a child following the entry and acceptance, of an Alford plea. See id., 566 N.W.2d at 174. Before accepting Warren’s plea, the.court advised him that in the event he was granted probation, he would have an obligation to enter into counseling in good faith. See id. However, the court did not advise Warren that he would have to admit guilt in such counseling. The court imposed a five-year sentence which it stayed in favor of an eight-year term of probation. See id. at 175. The court conditioned Warren’s probation on his cooperation with and completion of any counseling ordered by the ■ department of corrections. See id. The department of corrections, acting under statutory authority, revoked Warren’s probation when he was terminated from counseling because he repeatedly denied any culpability for the acts underlying the conviction. See id. The trial court affirmed the revocation, concluding that the requirement that Warren successfully complete sexual offender treatment was “a reasonable requirement necessary for the protection of the public and for Warren’s rehabilitation and served a legitimate peno-logical objective.” Id. at 175-76.

Warren appealed, contending that by accepting his Alford plea, the court somehow condoned his declaration of innocence and implicitly assured that he would not be punished for maintaining his innocence. Warren contended that the department of corrections violated this assurance when it revoked his probation for failing to admit commission of the crime in the treatment required as' a condition of his probation. See id. at 177.

The court held that the acceptance of an Alford plea does not imply a promise or assurance of anything.

More accurately stated, an Alford plea, if accepted by the court, permits a conviction without requiring an admission of guilt and while permitting a protestation of innocence. There is nothing inherent in an Alford plea that gives the defendant any rights, or promises any limitations, with respect to the punishment imposed after the conviction.

Id.

We find this reasoning to be wholly consistent with that expressed by the Supreme Court in Alford. An Alford plea is to be treated ^as a guilty plea and a sentence may be imposed accordingly. See Alford, 400 U.S. at 37, 91 S.Ct. 160.

III. '

Hence, we conclude that by accepting the Alford plea, the trial court did not in any way obviate later revocation proceedings for failure to admit guilt in a therapeutic context. We reverse the court of appeals and direct the reinstatement of the trial court’s probation revocation order and associated jail sentence.

1 . We granted certiorari to consider the following issue: "When a defendant who entered an Alford plea as part of an agreement whereby he received probation fails to comply with a condition of probation that he enter and successfully complete a sex offender specific treatment program, does the fact that he was not informed that such a program may require that he admit to having committed the offense preclude the court from revoking his probation?”

2 . These counts alleged violations of sections 18-3-405(1), 18-3-405.3 and 18-6-302, 6 C.R.S. (1997), respectively.

3 . Birdsong's alleged sexual contact with his daughter and other conduct involving both his daughter and son prompted the Adams County Department of Social Services to bring a dependency and neglect action against Birdsong, Case No. 93-JN155 (the dependency and neglect action). The court in the dependency and neglect action imposed an interim treatment plan on August 25, 1993, and a formal treatment plan on November 23, 1993.

4 . Third degree sexual assault constitutes a violation of section 18-3-404, 6 C.R.S. (1997).

5 . In Boykin, the Supreme Court held that for a guilty plea to be valid, the record must affirmatively show the defendant’s plea was intelligent and voluntary. See Boykin, 395 U.S. at 242, 89 S.Ct. 1709.

6 . A plea of nolo contendere is a plea by which a defendant waives his right to trial and authorizes the court to treat him as if he were guilty for purposes of that case. See Alford, 400 U.S. at 35, 91 S.Ct. 160.

7 . We accepted certiorari on the question of whether Birdsong's probation could be revoked under the circumstances of this case. We do not comment on whether Birdsong has a basis upon which he could file a motion for postconviction relief.

8 . Warren apparently filed a motion for postcon-viction relief in which he argued that he would not have entered an Alford plea had he known he . would have to admit guilt in court ordered counseling. See Warren, 566 N.W.2d at 178 n. 3.