Joseph Michael Scott v. State of Alaska (12/13/96) ap-1505
NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, in order
that corrections may be made prior to permanent
publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOSEPH MICHAEL SCOTT, )
) Court of Appeals No. A-6028
Appellant, ) Trial Court No. 1PE-94-226 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1505 - December 13 , 1996]
______________________________)
Appeal from the Superior Court, First Judicial
District, Petersburg, Walter L. Carpeneti,
Judge.
Appearances: Vernon A. Keller and Mary P.
Treiber, Ketchikan, for Appellant. Ben M.
Herren, District Attorney, Ketchikan, and Bruce
M. Botelho, Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Joseph Michael Scott pleaded no contest to attempted
first-degree sexual abuse of a minor (attempting to engage in sexual
penetration with a child under the age of 13). The sentencing judge
ordered Scott to participate in sex offender treatment while in
prison. Scott contends that there was no factual basis for the
judge's decision to order sex offender treatment because, at
sentencing, Scott continued to assert his factual innocence of the
charge, and the State presented no affirmative evidence that Scott
was guilty. We hold that, for purposes of sentencing, Scott's
no contest plea conclusively established his guilt of attempted
first-degree sexual abuse of a minor, and therefore the sentencing
judge had a reasoned basis for ordering Scott to undergo sex
offender treatment.
Proceedings in the Trial Court
Joseph Michael Scott was indicted for first-degree sexual
abuse of a minor, AS 11.41.434(a). The State alleged that Scott had
engaged in non-consensual cunnilingus with an eight-year-old girl,
the daughter of his girlfriend. Although Scott denied this
allegation, he ultimately pleaded no contest to a reduced charge of
attempted first-degree sexual abuse of a minor; concomitantly, he
stipulated that the State could prove aggravating factor
AS 12.55.155(c)(10) þ that Scott's conduct was among the most
serious included within the definition of attempted first-degree
sexual abuse. For its part, the State agreed that Scott, a first
offender, would receive no more than 5 years to serve (although
additional imprisonment could be suspended).
At Scott's sentencing, contention arose over a condition
of probation proposed by the pre-sentence investigator. The pre-
sentence investigator asked the court to order Scott to participate
in sex offender treatment while he served his prison term. Scott
argued that the court should not impose this requirement.
In support of her argument against the proposed condition
of probation, Scott's attorney submitted an evaluation performed by
Dr. Paul Wert, a clinical psychologist. According to Dr. Wert's
report, when Scott was asked about the sexual misconduct alleged
against him, Scott "adamantly denied that he in any fashion had
sexual contact with [the victim]". Scott stated that he had
accepted the plea bargain because he "couldn't fight" the State's
case. (EN1)
Based upon his evaluation of Scott, Dr. Wert reached the
following conclusion:
Concerning the currently pending charge,
Mr. Scott ... adamantly denies that he was
involved in any act of [abuse or] inappropriate
... sexual behavior. Mr. Scott is in many
respects convincing in ... his denial of the
alleged behavior. ... [It is clear] that Mr.
Scott is not at all interested in participating
in a treatment program for sexual offenders[.]
It also seems clear to this writer that if Mr.
Scott in fact [committed the acts] alleged, and
is "in denial", it is extremely unlikely that
his denial will be altered. To place him in a
[sex offender] program ... , with the
possibility that he could receive additional
institutional time should he not admit to the
behavior which resulted in the ... pending
charge, [would] make little sense.
Based upon Dr. Wert's evaluation, Scott's attorney asked
Superior Court Judge Walter L. Carpeneti to refrain from directly
ordering Scott to participate in sex offender treatment. Instead,
the defense attorney suggested
that the court treat this [case] as it would a
case of substance abuse or [a case involving]
any other problem where there are specialists
in the area. [The court should] require, as a
condition of probation, that Mr. Scott comply
or cooperate with the evaluation process, but
not require [treatment] from the bench. Let
[that] be a decision made by experts in the
field.
The defense attorney's suggestion led to the following
colloquy between Judge Carpeneti and the defense attorney:
THE COURT: But ... won't that lead to a
situation where ... Mr. Scott says, "Well, I
didn't do it," and the psychologist says,
"There's nothing more to talk about"? I mean,
that's a prescription for five years of dead
time [with] no treatment, [then] back on the
street. ... I have to proceed on [the
premise] that Mr. Scott did these acts. I know
he says he didn't do them, but ... the legal
reality is that he did[.] And under those
circumstances, it would seem ... to be a bit
irresponsible for a court to say, "I'll leave
it to someone else", knowing full well [that]
there's no one else out there [who is] going to
do it.
[I understand] that there are three or
four [prisoners] for every available [place in
the] sexual offender treatment [programs], and
if a person doesn't get with the program þ
which means acknowledg[ing] what they've done
and start working on it þ they're out. [But]
I'm just certain that if I do what you suggest,
[then] nothing will happen[.]
. . .
DEFENSE COUNSEL: What this court knows is
that ... people who have entered no contest
pleas [as a compromise resolution of their
case] are being ordered into sex offender
treatment programs, and as soon as they say, "I
can't admit that", they're not allowed to be in
the treatment, and [their] probation is being
revoked before they've completed their [prison
sentence]. ...
THE COURT: ... [W]e all have [to have]
our eyes open going into it. But I don't think
the defendant's saying, "I stand on my right to
plead no contest", means that the court has to
then accept that [the offense] didn't happen.
DEFENSE ATTORNEY: Well, that's my
argument to the court.
Despite the defense attorney's argument, Judge Carpeneti
imposed special condition of probation number 4, requiring Scott to
"[e]nter, actively participate in, and successfully complete a sex
offender treatment program while in custody[,] [and] not discontinue
treatment without the written approval of the treatment provider and
the supervising probation officer." In addition to imposing this
requirement as a condition of probation, Judge Carpeneti also
imposed this same requirement as a direct provision of Scott's
sentence. See AS 12.55.015(a)(10).
Scott's Arguments on Appeal
On appeal, Scott again challenges Judge Carpeneti's
decision to require him to participate in and complete sex offender
treatment. Scott frames his argument in terms of three different
legal theories.
First, Scott argues that Judge Carpeneti's decision
violates substantive due process because the decision is arbitrary
and lacks any factual basis. Second, Scott contends that the
judge's decision violates the legislative intent behind
AS 12.55.015(a)(10), the statute that authorizes a sentencing court
to order a defendant to undertake rehabilitative treatment while in
prison. Scott argues that, as a prerequisite to exercising its
sentencing authority under AS 12.55.015(a)(10), a sentencing court
must have a factual basis for determining that the defendant does
in fact need treatment and that the treatment ordered by the court
is in fact appropriate. Compare Roman v. State, 570 P.2d 1235, 1240
(Alaska 1977) (conditions of probation "must be reasonably related
to the rehabilitation of the offender and the protection of the
public", and they "must not be unduly restrictive of [the
offender's] liberty"). Third, and alternatively, Scott argues that
Judge Carpeneti denied him procedural due process because, to the
extent Judge Carpeneti purported to find the required factual
predicate for ordering Scott to submit to treatment, the judge made
this finding without affording Scott the opportunity to litigate
whether sex offender treatment was truly necessary (because he was
innocent).
Although Scott has presented three different legal
theories for questioning Judge Carpeneti's decision to require sex
offender treatment, each of these legal theories relies on the same
premise þ the assumption that Scott was entitled to plead no contest
to attempted first-degree sexual abuse of a minor and still maintain
his factual innocence for purposes of sentencing. This is not
correct.
Commentators and courts universally agree that when a
defendant pleads no contest to a crime, the defendant waives his or
her right to challenge the State's proof of the essential elements
of that crime.
Literally[,] nolo contendere means "I will
not contest it." It is a mere statement of
unwillingness to contest and no more. But with
respect to the case in which it is entered, a
plea of nolo contendere ... has the same effect
as a plea of guilty. It is an admission of
every essential element of the offense well
pleaded in the charge, and is tantamount to an
admission of guilt for the purposes of the
case. ... No issue of fact remains.
Charles A. Wright, Federal Practice and Procedure (Criminal) (1982),
sec. 177, Vol. 1, pp. 662-64 (footnotes omitted). It is "beyond
question that for the purpose of the [criminal] case a plea of nolo
contendere is the full equivalent of a plea of guilty"; a plea of
no contest is "in effect a consent that the court may proceed to
accept the allegations in the indictment as true". C.T. Drechsler,
Annotation: Plea of Nolo Contendere or Non Vult Contendere,
89 A.L.R.2d 540 (1963), sec. 2 at 547.
For example, in United States v. Norris, 281 U.S. 619,
50 S.Ct. 424, 74 L.Ed. 1076 (1930), the defendant pleaded no contest
to conspiring to transport liquor in violation of the Prohibition
Act of 1919. But when he appeared for sentencing, Norris filed a
motion in arrest of judgement "upon the grounds that ... he was not
guilty of the crime charged". In his motion, Norris asserted "that
the record disclosed that he merely purchased liquor, ... and that
the record failed to show such degree of affirmative co-operation
on his part as would render him liable as a conspirator in the
unlawful transportation". Norris, 281 U.S. at 622, 50 S.Ct. at 425,
74 L.Ed. at 1077.
The Supreme Court held that Norris, having entered a plea
of no contest, was powerless to assert his innocence of any element
of the crime: "[I]n the face of the plea[,] no issue of fact
exists, and none can be made while the plea remains of record."
Norris, 281 U.S. at 623, 50 S.Ct. at 425, 74 L.Ed. at 1077.
In United States v. Freed, 688 F.2d 24 (6th Cir. 1982),
the defendant pleaded no contest to three counts of willfully
failing to pay income taxes. He later asserted that the govern-
ment's evidence did not establish that his failure to pay the taxes
had been willful. The court answered:
Like a plea of guilty, a plea of nolo
contendere constitutes a waiver of ... the
right to contest the factual merits of the
charges[.] ... By pleading nolo contendere,
Freed has admitted that he acted willfully. He
cannot now be heard to attack the evidence as
insufficient to support a finding of
willfulness.
Freed, 688 F.2d at 25-26.
In State v. Kilmer, 231 N.W.2d 708 (Neb. 1975), the
defendant was a county clerk who pleaded nolo contendere to a charge
of malfeasance in public office. The criminal complaint asserted
that he had used his county office for a private purpose by
employing county equipment, supplies, and labor to mail out
literature advocating a particular result in an impending union
election. On appeal, the defendant argued that he had been legally
entitled, as the county clerk, to take this action:
Much of the [defendant's] argument was
devoted to the proposition that the defendant,
[in his official capacity] as county clerk[,]
had a right to campaign against union repre-
sentation of county employees. The
[defendant's] plea of nolo contendere
forecloses this argument because [the plea]
admitted the allegation that the literature was
intended for the private use of the defendant
rather than official use in his capacity as
county clerk. A plea of nolo contendere admits
the matters alleged in the information and has
the same effect as a plea of guilty so far as
issues of fact are concerned.
Kilmer, 231 N.W.2d at 710 (citation omitted).
Accord: Urbano v. New Jersey, 225 F.Supp. 798, 810-11
(D.N.J. 1964), aff'd 333 F.2d 845 (3rd Cir. 1964) (a defendant who
pleaded no contest to murder could not thereafter assert that he was
insane when he committed the killing) (applying state law); State
v. Redman, 612 N.E.2d 416, 418 (Ohio App. 1992) (The defendant
pleaded no contest to an indictment charging him with "aggravated
vehicular homicide" for operating a motor vehicle while intoxicated
and killing two people. On appeal, the court held that the
defendant was foreclosed from arguing at sentencing that the
government's evidence failed to establish that he was under the
influence.); Keim v. State, 777 P.2d 278, 281 (Kan. App. 1989) (a
defendant who pleaded no contest to rape could not thereafter
challenge the sufficiency of the government's evidence that the
victim did not consent to the act of sexual intercourse); Giannetta
v. State, 296 So.2d 654, 655 (Fla. App. 1974) (The defendant pleaded
no contest to possession of marijuana paraphernalia; he later
contended that, "from the evidence, it cannot be established that
[he] had knowledge of or control over the contraband." The appeals
court responded: [T]he appellant here is precluded by [his nolo
contendere] plea from questioning whether the state could have
established his knowledge ... or control[.]").
Alaska follows this same rule. See Cooksey v. State, 524
P.2d 1251, 1255 n.5 (Alaska 1974) ("The legal effect of a plea of
nolo contendere is as conclusive as to the guilt of a defendant as
a plea of guilty"). Compare In re Schuler, 818 P.2d 138, 141 & n.5
(Alaska 1991) (an attorney who pleaded no contest to concealment of
merchandise could not, in subsequent bar disciplinary proceedings,
contest the fact that he had acted with intent to deprive the store
owner of the property, since this was an element of the offense to
which he entered his plea).
In Alaska, a defendant charged with a criminal offense has
the right to plead no contest even when the defendant simultaneously
maintains his or her factual innocence. Miller v. State, 617 P.2d
516, 518-19 (Alaska 1980). But, as the above authorities demon-
strate, once a defendant enters a knowing and voluntary no contest
plea, the sentencing court is entitled to treat each element of the
offense as having been proved, despite the defendant's protestations
of innocence.
In the present case, Scott pleaded no contest to
attempting to sexually penetrate a minor under the age of 13.
Having entered this plea, Scott could no longer assert (for
sentencing purposes) that he was not factually guilty of this sexual
misconduct. Scott's plea was an admission of every essential
element of the offense; no issue of fact remained. Miller, supra;
Chaney, supra.
Judge Carpeneti did not need to hold a hearing or take
additional evidence to decide whether Scott had in fact tried to
engage in sexual penetration with his eight-year-old victim.
Scott's no contest plea conclusively established this fact for
sentencing purposes. Judge Carpeneti thus had an ample, case-
specific basis for concluding that sex offender treatment was
appropriate in Scott's case and that Scott should be required to
undertake that treatment.
To the extent that Dr. Wert questioned the appropriateness
of sex offender treatment based on the possibility that Scott was
innocent, Dr. Wert's doubts are irrelevant. To the extent that Dr.
Wert questioned the ultimate effectiveness of sex offender treatment
because Scott persisted in claiming that he had done nothing wrong,
the answer was provided by Judge Carpeneti in his colloquy with
defense counsel: Judge Carpeneti noted that if the law prohibited
him from ordering sex offender treatment for Scott simply because
Scott refused to admit that he had engaged in sexual misconduct,
this would be "a prescription for five years of dead time [with] no
treatment", at the end of which Scott would be "back on the street".
Alaska law does not prohibit a judge from ordering
rehabilitative measures simply because the defendant announces a
present unwillingness to cooperate in those measures. After Scott
begins treatment, he may decide to willingly participate in the
therapy. Even if Scott's position never alters, Judge Carpeneti was
nevertheless authorized to try this rehabilitative option.
On appeal, Scott's attorney argues that if Scott continues
to assert his innocence, then he will probably be dropped from the
sex offender treatment program, thus creating "a substantial
likelihood that Mr. Scott's probation will ultimately be revoked ...
for failure to comply with the court's order regarding sex offender
treatment." This argument is premature. Scott is free to raise it
again if and when Scott's probation is ever revoked for willful
failure to comply with the sentencing court's order.
The judgement of the superior court is AFFIRMED.
ENDNOTES:
1. When asked how he accounted for the girl's allegations, Scott
stated that she might have accused him because she held a "grudge"
against Scott, because she did not like his exercising authority
over her. Scott also suggested that "someone else in the house
might have sexually abused [the girl]", and that it was "a case of
mistaken identity".
