COURT OF APPEALS OF VIRGINIA

Present: Judges Decker, AtLee and Senior Judge Frank Argued at Norfolk, Virginia

ARTHUR AMIL ZEBBS OPINION BY v. Record No. 0933-15-1 JUDGE RICHARD Y. ATLEE, JR. MAY 17, 2016 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Christopher W. Hutton, Judge Charles E. Haden for appellant. Virginia B. Theisen, Senior A ssistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

As a term of his probation for various sex cr imes, Arthur Zebbs was ordered to complete sex offender treatment. This treatment required Zebbs to admit that he had committed the crimes for which he was on probation. Zebbs refused to make such an admission, and was removed

from treatment as a result. Because Zebbs failed to complete the treatment, a judge of the Circuit Court for the City of Hampton (“ the circuit court”) found him in violation of the terms of his probation. Zebbs now appeals that revocation, arguing that the tr eatment program’s requirement that he admit his past crimes violated his rights under both the Fifth Am endment to the United States Constitution and Article I, § 8 of the Virginia Constitution. We do not agree with Zebbs’s contention, and we affirm th e circuit court’s decision.PUBLISHED- 2 - I. B ACKGROUND In 2002, Zebbs entered guilty pleas, pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), 1 to three charges: forcible sodomy (a felony in violation of Code § 18.2-67.1) and two counts of unlawful filming of a minor (misdeme anors in violation of Code § 18.2-386.1(A)). Pursuant to a plea agreement, the circuit court sentenced Zebbs to twenty-five years in prison with thirteen years suspended fo r the sodomy charge, and to a co mbined twenty-four months of incarceration, all suspended, for the misdemeanors. As a term of the partial suspension of his sentences, Zebbs’s plea agreement required him to “undergo and complete sex offender

treatment.” 2 The trial court’s sentencing order required this as well. 3 In 2012, after serving his penitentiary sentence, Zebbs wa s released to probation. Completion of sex offender treatment was a term of his probation. The Commonwealth filed a show cause against Zebbs in 2013 for failing to follow his probation officer’s instructio ns, specifically for failing to admit, during the course of sex offender treatment, that he comm itted the crimes for which he was on probation. In that revocation proceeding, the circuit court found Zebbs in violation of the terms of his probation, but took “no further action to revoke the sentence,” and ordered him to continue with probation and sex offender treatment. 4

1 “When offering an Alford plea of guilty, a defendant asserts his innocence but admits that sufficient evidence exists to convict hi m of the offense.” Ramsey v. Commonwealth, 65 Va. App. 593, 596 n.1, 779 S.E.2d 241, 243 n.1 (2015).

2 At his subsequent probati on revocation hearing, Zebbs cl aimed that this provision was inserted after he signed the plea agreement.

3 Zebbs did not appeal his convictions, and the time for doing so has expired.

4 Zebbs appealed that decision to this Court. His petiti on was denied by one judge, and again after review by a three-judge panel. Zebbs then noted his appeal of that denial to the Supreme Court, where hi s petition is pending.- 3 - A second show cause was issued in January of 2015 at the reques t of Zebbs’s probation officer. In the motion accompanying the 2015 show cause, the probation officer alleged that Zebbs failed “[t]o follow the Probation Officer’s inst ructions and be truthf ul and cooperative.” At the revocation hearing, Zebbs’s attorney confirmed the specifi c basis of the allegation when he asked the probation officer: “And the only re ason that [Zebbs] was discharged [from sex offender treatment] was his refusal to admit that he had committed the offense for which he was on probation, correct?” The probati on officer responded: “Correct.” The most detailed description of Zebbs’s refu sal to admit his crimes is found in the “Sex Offender Treatment Discharge Summary,” admi tted into evidence without objection as a

Commonwealth’s exhibit at the hearing on June 10, 2015. 5 That document reads, in part: On 11.28.12, a Discharge Summary form [sic] GreensvilIe Mental Health Unit recommended Sex Offense Specific Treatment upon release but noted [Zebbs] was in deni al regarding his offense. . . . On 04.22.13, he started treatment . . . and remained in denial throughout the course of treatment and was terminated in July of 2013 due to continued denial and subs equent lack of progress. . . .

Mr. Zebbs entered treatment in complete denial. He made typical statements of resistance and avoidance of responsibility such as, “This is all about the m oney. The state just keeps you in treatment to make money off of you even when you didn’t do anything.” . . . Mr. Zebbs was generally polite and voiced a willingness to cooperate with what was asked of him but was unable to complete any treatment objectives as most require disclosure of details of his offense. On 12.04.14, he was asked a final time to give an account of hi s offense. He stated he has had no offense, never did anything wrong and will never admit to something he did not do. He voiced an understanding of the ramifications of his decision and said he was prepared to go back to court and face the possibil ity of completing his time.

5 There is no transcript of Zebbs’s refusal to admit his crimes, because such refusal occurred while Zebbs was speaking with his sex o ffender therapist. Zebbs does not dispute that he refused to admit committing these crimes. He maintains now, as he maintained at the time he entered his Alford pleas of guilty, that he did not commit the crimes of which he was convicted.- 4 - The circuit court found Zebbs in violation of his probation, revoked and resuspended all but one year of the suspended time in connect ion with the sodomy charge, and revoked and resuspended all time on the misdemeanor charges. This appeal followed.

II. A NALYSIS When reviewing probation revocation proceedin gs on appeal, “the tr ial court’s ‘findings of fact and judgment will not be reversed unless there is a clear s howing of abuse of discretion.’” Green v. Commonwealth, 65 Va. App. 524, 532, 779 S.E.2d 207, 211 (2015) (quoting Davis v. Commonwealth, 12 Va. App. 81, 86, 402 S.E.2d 684, 687 (1991)). However, we examine

Zebbs’s Fifth Amendment claim de novo . See Crawford v. Commonwealth, 281 Va. 84, 97, 704 S.E.2d 107, 115 (2011). Whether reviewing a trial court’s decision for abuse of discretion or de

novo , we continue to view “the evidence and all r easonable inferences fair ly deducible therefrom in the light most favorable to th e Commonwealth, the prevailing part y at trial.” Id. (quoting Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924 (2000)).

A. Fifth Amendment

The Self-Incrimination Clause of the Fifth Amendment to the United States Constitution provides that “[n]o person . . . shall be compelle d in any criminal case to be a witness against himself.” Although inapplicable to the states at the time it wa s originally enacted, the Fifth Amendment now “applies to the States by virtue of the Fourteenth Amendment.” Maryland v. Shatzer, 559 U.S. 98, 103 (2010) (citi ng Malloy v. Hogan, 378 U.S. 1, 6 (1964)). 6 Violations of the Fifth Amendment privilege against self-incri mination occur in two ways. In the first

6 Zebbs also invokes Article I, § 8 of the C onstitution of Virginia when arguing that the Commonwealth violated his privilege against se lf-incrimination. Becau se “[t]he privilege against compelled testimony under Ar ticle 1, § 8 of the Virginia C onstitution is no broader in its application than its counterpart under the fe deral Constitution,” Farmer v. Commonwealth, 12 Va. App. 337, 340, 404 S.E.2d 371, 372 (1991), we will, fo r the sake of convenience, refer to his claim as a Fifth Amendment claim.- 5 - scenario, the state attempts to compel an indivi dual to make a statement which might incriminate him in a future criminal trial, the individual invokes the Fifth Amendment and refuses to make such a statement, and the individual is punished fo r his refusal. In the second scenario, the state compels an individual to make a statement which might incriminate him in a future criminal trial, the individual makes such a statement, and the in dividual’s statement is la ter used against him in

a future criminal trial. See Venable v. Commonwealth, 48 Va. A pp. 380, 387 n.3, 632 S.E.2d 1, 4 n.3 (2006). If Zebbs falls into e ither of these categorie s, it would be the firs t, because he gave no incriminating statement, and asserts that he was punished for his refusal to do so.

A valid Fifth Amendment claim in such a s cenario requires three things. First, the admission sought from an individual must carry a risk of incriminating that individual in a future criminal proceeding. Lefkowitz v. Turley, 414 U. S. 70, 77 (1973). Second, the state must use compulsion in its attempt to obtain the ad mission. Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977). Third, because “mere coercion does not violate the text of the Self-Incrimination Clause,” Chavez v. Martinez, 538 U.S. 760, 769 (2003) (plurality opinion), there must be “a ‘substantial penalty’ [imposed] upon [an individual] after he ‘elect [ed] to exercise his Fifth Amendment right not to give incriminating tes timony against himself,’” Venable, 48 Va. App. at 389, 632 S.E.2d at 6 (third alteration in orig inal) (quoting Cunningham, 431 U.S. at 805). Failure to establish any one of these three prongs defeats a claim that the Fifth Amendment has

been violated. In Venable, a probationer refused to admit that he committed the crime of which he had been convicted, as required by his sex offender tr eatment program. He was discharged from the program, and was found in viola tion of his probation as a result. Venable claimed that the

admission demanded of him violated his Fifth Am endment rights, because it would subject him to “a possible perjury charge in regards to [his ] testimony concerning [his] conviction.” Id. at- 6 - 384, 632 S.E.2d at 3. (Unlike Zebbs, who entered an Alford plea of guilty, Venable pled not guilty and was convicted after a trial.) This Court found that Venable’s Fifth Amendment rights had not been violated. This Court assumed, for purposes of the appeal, that Venable’s admission of guilt would have placed him in danger of pr osecution for perjury. However, the Court found that, because the trial court had not revoked any of Venable’s suspended time, and had instead permitted him to enroll in a different sex offe nder program, there was no “substantial penalty” imposed on Venable as a result of the exercise of his Fifth Amendment rights. Id. at 389, 632 S.E.2d at 5. This finding obviated the need for th e Court to “reach the issu e of whether forcing a probationer to choose between ei ther losing his conditional liber ty or incriminating himself during court-ordered counseling constitutes ‘com pulsion’ within the meaning of the Fifth Amendment.” Id. at 389, 632 S.E.2d at 5-6. Here, we need not grapple with the ques tions of compulsion or the imposition of a substantial penalty, because we find that incrimination (as it is understood in the Fifth Amendment context) was not present. In Vena ble, the Court assumed, “for purposes of this appeal only, that Venable’s admission of guilt would be self-incriminating.” Id. at 388 n.4, 632 S.E.2d at 5 n.4. As explained below, the facts he re permit no such assumption, rather we must assume the opposite: any admission of guilt by Zebbs could not result in future prosecution. Such a prosecution would be barred by the D ouble Jeopardy Clause of the Fifth Amendment. 7 Therefore, though Zebbs may have been required to admit committing a crime, such an admission would not be “incriminating” for purposes of the Fifth Amendment. 8 Because Zebbs

7 The Double Jeopardy Clause of the Fifth Am endment to the United States Constitution forbids that “any person be subject for the same o ffence to be twice put in jeopardy of life or limb.”

8 Zebbs faces no risk of perjuring himself if he admits committing the crimes of which he was convicted, because he entered pleas of guilty to the offenses and, thus, never testified under oath that he did not commit the crimes.- 7 - fails to establish incrimination, the first part of a multi-part conjunctive test, we need not address the remaining factors, compulsion and penalty. We agree with Zebbs that the protections of the Fifth Amendment do not evaporate following one’s conviction and sentencing for a cr ime, nor are these protections diluted during any subsequent probationary period. Mi nnesota v. Murphy, 465 U.S. 420, 426 (1984). However, the Fifth Amendment does not imm unize people from making difficult choices or embarrassing disclosures. United States v. Calandra, 414 U.S. 338, 353 (1974); Doss v. Commonwealth, 23 Va. App. 679, 687-88, 479 S.E.2d 92, 96-97 (1996). Nor does it provide sanctuary from the obligation to respond to quest ions whose answers are not incriminating. Carter v. Commonwealth, 39 Va. App. 735, 749, 576 S.E.2d 773, 780 (2003). Even an answer that admits the past commission of a crime is unprotected by the Fifth Amendment if the person giving the answer cannot face future criminal prosecution for the crime described. This is so because “[t]he interdiction of the Fifth Amendment operates only where a witness is asked to incriminate himself—in other words, to give testimony which may possibly expose him to a criminal charge. But if the criminality has already been taken away, the Amendment ceases to apply .” Hale v. Henkel, 201 U.S. 43, 67 (1906); see also Murphy, 465 U.S. at 426 (observing that compelled statements “are inadmissible in a subsequent trial for a crime other than that for which he has been convicted” (emphasis a dded)); United States v. Antelope, 395 F.3d 1128, 1134 (9th Cir. 2005) (noting that “the Fifth Ame ndment’s self-incrimination clause . . . may only

be invoked when the threat of future criminal prosecution is reasonably partic ular and apparent” (emphasis added)). Thus if the criminal conduct described in the statement cannot be prosecuted, it is not “incri minating” for purposes of Fifth Amendment analysis. The “criminality” of an otherwise incrim inating statement may be “taken away” in various ways. In Brown v. Walker, 161 U.S. 59 1 (1896), the Supreme Court observed that, aside- 8 - from waiver, expiration of the applicable stat ute of limitations for the conduct described can operate to remove the protecti ons against compelled self-incri mination. Id. at 598. The Court explained that “if the testimony s ought cannot possibly be used as a basis for, or in aid of, a criminal prosecution against the witness, the rule [protecting the witness from compelled self-incrimination] ceases to apply.” Id. at 597. In Kastigar v. United States, 406 U.S. 441 (1972), the Supreme Court held that the governme nt could compel incrim inating testimony from a witness, because the government had fully imm unized such witness “from the use of compelled testimony, as well as evidence derived directly an d indirectly therefrom.” Id. at 453. Neal v. Shimoda, 131 F.3d 818 (9th Cir. 1997), was a cons olidated appeal by two prisoners of adverse summary judgment rulings in their civil claims ag ainst prison administrators alleging, in part, that the administrators had violated the prisone rs’ Fifth Amendment rights. The basis for the claim was that the prisoners’ sex offender treat ment program required them to admit committing the crimes of which they had been convicted. The Ninth Circuit Court of Appeals rejected the claim that the Fifth Amendment protected a prison er from the consequences of refusing to admit such crimes during treatment, since “[d]ouble jeopardy considerations would preclude any admission . . . from being used against him.” Id. at 833.

All of these cases share some factor or c oncept (the statute of limitations, a grant of immunity, double jeopardy prot ection) that eliminates the risk of future prosecution as a result of an incriminating answer to a compelled question. In Zebbs’s case, he was required to admit the crimes of which he had been convicted, and no others. 9 Zebbs was not asked to provide

9 In his reply brief, Zebbs a sserts that the probationary requirement that he submit to polygraph examinations violated his rights under the Fifth Amendment. At the revocation hearing, there was testimony about two different types of polygraph examination: “instant offense” and “full disclosure.” An instant o ffense polygraph requires an offender to admit the behavior of which he was already convicted, i.e. to confirm the fact s that gave rise to the charge for which he was sentenced and placed on proba tion. A full disclosure polygraph (occasionally referred to as a “sexual autobiography”), on the other hand, is wide-rangin g and covers questions- 9 - information about uncharged conduct or unknown cr imes. He was asked only to admit to the facts which gave rise to the charges of which he had already been found guilty. By operation of the Double Jeopardy Clause, Zebbs wa s not subject to further crimin al liability for the specific answers sought. As such, his answers could no t “expose him to a criminal charge.” Hale, 201 U.S. at 67. That being the case, the Fifth Amendment “ceases to apply.” Id.

B. Alford Plea Zebbs stresses that “[h]e did not plead guilty but rather entered an Alford plea.” At arraignment, an accused has a choice: he “may plead not guilty, guilty or nolo contendere.” Code § 19.2-254. An Alford plea is not a fourth opti on, rather it is a specific type of guilty plea. “Virginia courts ‘treat Alford pleas as having the same preclusive effect as a guilty plea.’” Ramsey v. Commonwealth, 65 Va. App. 593, 596 n.1, 779 S.E.2d 241, 243 n.1 (2015) (quoting Perry v. Commonwealth, 33 Va. App. 410, 412, 533 S.E.2d 651, 652 (2000)). Consequently, they are frequently referred to as “‘Alfo rd’ pleas of guilty.” Id. (quoting Malbrough v. Commonwealth, 275 Va. 163, 168, 655 S.E.2d 1, 3 (2008 )). Once an accused has been found

about uncharged conduct, answer s to which might subject the offender to future criminal prosecution. Significantly, incriminating answer s given in the course of a full disclosure polygraph would be reported to law enforcem ent by the treatment pr ovider, according to testimony from the probation officer. Requi ring an unincarcerated probationer to undergo un-immunized, full disclosure polygraphs has the pot ential to raise significant issues implicating the Fifth Amendment. See McKune v. L ile, 536 U.S. 24, 50-52 (2002) (O’Connor, J., concurring in the judgment). However, we do not address those implications, because to do so in the context of this case would be to offer an advisory opinion, which we are not empowered to do. Commonwealth v. Harley, 256 Va . 216, 219-20, 504 S.E.2d 852, 854 (1998). The constitutionality of full disclosure polygraphs is not ripe for ad judication here, because from the evidence presented, it is clear that Zebbs was neve r required to take a full disclosure polygraph, and his revocation in the case before us is not based on a refusal to answer full disclosure polygraph questions. At the revocation proceeding, Zebbs’s probation officer testified: “He did not do the full disclosure [polygra ph]. He did an instant offense polygraph.” App. at 119. Later during this same proceeding, the Commonwealth’s attorney asked the probation officer: “To your knowledge, he’s never been required to ta ke a polygraph with questions beyond asking him whether he committed the offense that he’s pled guilty pursuant to Alford?” The probation officer’s response: “C orrect.” Id. at 132.- 10 - guilty and sentenced, any distinction between an ordi nary guilty plea and an Alford plea of guilty ceases to be relevant for purposes of a subs equent violation of a suspended sentence. 10 In Carroll v. Commonwealth, 280 Va. 641, 701 S.E.2d 414 (2010), Carroll raped his twelve-year-old stepdaughter, then entered an Alfo rd plea of guilty to the charge. The trial court accepted Carroll’s plea, but suspended imposition of a sentence for five years, during which time Carroll was to be on supervised probation, one term of which was the completion of any treatment required by his probation officer. At the end of the five-year period, provided Carroll complied with the terms of the suspended impositi on of sentence, his charge was to be reduced

to a misdemeanor. Such a reduction never o ccurred, however, because part of Carroll’s treatment for his offense required him to admit the rape, an admission he refused to make.

Carroll was terminated from his treatment program and his probation was revoked, whereupon the trial court convicted him of the rape and sentenced him to a suspended five-year prison sentence. On appeal, Carroll assigned error to the trial court’s revocati on of his probation based upon his refusal to admit to a crime to which he had entered an Alford plea. The Supreme Court affirmed Carroll’s conviction, observing:

10 The distinction among pleas remains relevant in other contexts, particularly when courts confront the use in a civil case of a plea previously entered in a related criminal case. In Carroll v. Commonwealth, 280 Va. 641, 650, 701 S.E.2d 414, 419 (2010), the Supreme Court observed that, in the civil case of Parson v. Carroll, 272 Va. 560, 636 S.E.2d 452 (2006), “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 [civil] proceeding in which the issue is whether, as a matter of fact, the accused participated in the acts constituting the offense.” Even entering a guilty plea does not estop a defendant in a subse quent civil case from contesting civil liability, as the Supreme Court explained recently in Mikhaylov v. Sales, __ Va. __, __, __ S.E.2d __, __, No. 150552, 2016 Va. LEXIS 53 (Apr. 21, 2016). There, the Court addressed the issue of judicial estoppel when a defendant pled guilty to assault and battery, and was subsequently sued by the victim for assault and battery. The Court quoted Code § 8.01- 418 and observed that “a guilty plea ‘shall be admissible’ evidence ‘in any civil action’ involving the ‘same occurr ence.’” Id. at *8. However, the Court went on to point out that, notwithstandi ng the admissibility of the defendant’s plea in the subsequent civil case, the doctrine of judicial estoppel did not bar him from disputing that he committed the assault and battery in the civil case b ecause there was not identity of parties in the two proceedings, i.e., the victim and the Co mmonwealth were different parties. Id.- 11 - A defendant’s protestations of innocence under an Alford plea extend only to the plea itself. . . . . . . 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 treat ed no differently than he would be had he gone to trial an d been convicted by a jury. Id. at 651-52, 701 S.E.2d at 419 (quoting State ex rel. Warren v. Schwarz, 579 N.W.2d 698, 707 (Wis. 1998)). The Supreme Court was clear: “[N]othing in the Alford opinion, the Parson 11 opinion, or any other Virginia opin ion indicated 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.” Id. at 650-51, 701 S.E.2d at 419. The Court went on to quot e the Seventh Circuit Court of Appeals: Warren believes that the acceptan ce 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 ordere d as a condition of probation, and his admission is necessary for rehabilitation, he must admit responsibility fo r his conduct. Id. at 652, 701 S.E.2d at 419-20 (quoting Warren v. Richmond Cnty. Cir. Ct., 223 F.2d 454, 459 (7th Cir. 2000)). In Carroll, the Supreme Court was confronted with a scenario remarkably similar to that confronting this Court today. The Supreme Court was unambiguous: an Alford plea of guilty does not affect a probationer’s oblig ation to comply with a treatment requirement that he admit his guilt. As such, we hold that the trial court did not abuse its discreti on when it found Zebbs in violation of his probation and revoked a portion of his suspended sentence.

11 Parson v. Carroll, 272 Va. 560, 636 S.E.2d 452 ( 2006), was a civil ca se in which the Supreme Court held that a crimin al defendant, convicted followi ng an Alford plea of guilty, was not barred by the doctrine of j udicial estoppel from contesting the facts of his crimes in a subsequent civil case.- 12 - III. C ONCLUSION Zebbs faced no possibility of criminal pros ecution for admitting the crimes for which he was on probation, as he had alrea dy been convicted of those crimes. For this reason, Zebbs’s Fifth Amendment rights were not violated. His plea to the underlying charges pursuant to North Carolina v. Alford does not affect his obligation to comply with the requirement of his sex

offender treatment that he admit his crimes. As such, the trial court did not err when it found Zebbs in violation of the terms of his probati on, and revoked a portion of his suspended sentence.

Affirmed.