Probationer’s incriminating statements cannot be used to increase
A defendant who is required to admit past crimes in treatment as a
condition of probation is protected by the Fifth Amendment if the state
tries to use those statements as a basis for increasing his sentence
upon probation revocation.
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
21, 2010 – Incriminating evidence derived from counseling sessions
in which a probationer admitted past crimes involving sexual contact
with children were inadmissible in determining the probationer’s
sentence after probation revocation.
That’s what the District III Wisconsin court of appeals held in
v. Peebles, 2009AP3111-CR (Oct. 19, 2010), a case in which the
appeals court found that Ronnie Peebles’ counsel was ineffective
for failing to object when the state introduced incriminating statements
at a probation revocation sentencing hearing.
Peebles pled no contest in 2005 to one count of first-degree sexual
assault of a child. The state recommended, and honored, a sentencing
agreement of four years imprisonment with four years extended
supervision. But the circuit court withheld sentencing, and placed
Peebles on five years of probation with one year in the county jail. The
court also ordered counseling.
As a condition of probation, Peebles was required to attend a sex
offender treatment program. He did so for three years between 2005 and
2008. Treatment required Peebles to discuss his offense, and the details
of past hidden crimes. He was also subject to polygraph tests. At one
point, Peebles admitted that he had "in excess of twenty child
victims” in the past.
Ultimately, Peebles violated his probation on several grounds. At his
revocation sentencing hearing, the court recognized the treatment
admissions as “significantly new information” upon which the
court would rely and sentenced him to 25 years in prison with 15 years
In a postconviction motion, Peebles argued that considering admissions
made during treatment violated his right against self-incrimination
under the Fifth Amendment to the U.S. Constitution and article I,
section 8 of the Wisconsin Constitution.
The circuit court denied the motion, “observing that Peebles
could have refused to cooperate with his probation and counseling
requirements, including the polygraph.” Peebles appealed.
Because Peebles was required to cooperate and complete sex offender
treatment or risk revocation, the appeals court found that his
statements “were compelled for purposes of the Fifth
The appeals court rejected the state’s argument that admissions
were not incriminating “because there was no realistic threat that
he would be prosecuted for them.”
“Whether statements might be incriminating in a future criminal
proceeding is an irrelevant inquiry” in Fifth Amendment situations
where a person “gives an incriminating statement and later seeks
to exclude it from a criminal proceeding because it was
compelled,” the court explained.
That is, Peebles sought to exclude statements that were
“incriminating in the criminal proceeding from which he sought
The court also rejected the state’s argument that the statements
were not compelled, “because he could have just refused to comply
with probation at numerous times.”
“[A] probationer’s statements are compelled if he or she
must choose between providing them or jeopardizing his or her
conditional liberty by remaining silent,” the court wrote.
The appeals court remanded the case for resentencing before a new judge
“without consideration of the compelled statements” based on
Peebles’ claim that his counsel was ineffective for failing to
move for exclusion of the compelled statements.
Failing to object was a deficiency, the court explained, and Peebles
was prejudiced by the deficiency “because the circuit court
acknowledged that it relied significantly on Peebles’ admissions
when determining the sentence.”