People v. Ruch; The Right to Remain Silent
People v. Ruch, 2013 COA 96, 10CA2436 is a very useful case especially for defendants who have been convicted at trial, are ordered to sex offender treatment, and have an appeal pending. Ruch adopts arguments made in People v. Guatney, 214 P.3d 1049 (Colo. 2009) that, absent a grant of use immunity, the state may not revoke a defendant’s probation based on the assertion of his or her Fifth Amendment right against self-incrimination and the consequent refusal to admit guilt to the offense for which he is on probation while the direct appeal is pending. Below are excerpts from the Ruch Opinion regarding the fifth amendment right while appeal is pending.
2013 COA 96
The People of the State of Colorado, Plaintiff-Appellee,
Carl Daniel Ruch, Defendant-Appellant.
Court of Appeals of Colorado, First Division
June 20, 2013
Douglas County District Court No. 07CR675 Honorable Paul A. King, Judge
John W. Suthers, Attorney General, Wendy J. Ritz, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Michael C. Mattis, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
1 Defendant, Carl Daniel Ruch, appeals the trial court s judgment revoking his probation for his failure to (1) contact his probation officer at the times and places specified by the officer, (2) receive prior approval from his probation officer before changing his residence, (3) sign releases of information to allow his probation officer to communicate with members of the community supervision team, and (4) attend, actively participate in, and successfully complete a sex offender treatment program approved by his probation officer. We conclude that there was sufficient evidence upon which the trial court could find that Ruch violated his probation with respect to the first three violations and that the trial court did not violate Ruch s right to counsel. However, we conclude that the fourth probation requirement violated Ruch s Fifth Amendment right against self-incrimination. Accordingly, we remand the case to the trial court to determine whether Ruch s probation would have still been revoked, and the same sentence imposed, based only on the first three violations.
2 In 2007, Ruch was charged with sexual assault on a child by one in a position of trust and harassment stalking (emotional distress). Following a jury trial, Ruch was acquitted of the sexual assault charge, but was found guilty of stalking.
3 The trial court sentenced Ruch to six years of intensive supervised probation. However, in January 2010, Ruch s probation officer filed a special report in the trial court requestingRuch be ordered to comply with additional terms of probation typically imposed on sex offenders.
4 In March 2010, Ruch filed a written objection to the probation officer s special report, asserting, among other things, that the requested additional terms of probation would violate his Fifth Amendment right to remain silent.
5 In April 2010, the trial court held a hearing on the special report. At the hearing, Ruch objected to the modification of the terms of his probation, but he did not invoke his Fifth Amendment right. At the conclusion of the hearing, the trial court granted the probation officer s request, and amended the terms of Ruch s probation to include, among other things, the above listed requirements.
6 In June 2010, Ruch s probation officer moved the trial court to revoke Ruch s probation, alleging that Ruch had violated the amended conditions of his probation.
7 In August 2010, the trial court held a hearing on Ruch s alleged violations, at which it found that Ruch had violated the terms of his probation. At the conclusion of the hearing, the trial court left the terms of Ruch s probation in place until the sentencing hearing at which Ruch s probation would be revoked.
8 In October 2010, the trial court held a hearing to revoke Ruch s probation and sentence him accordingly. At the hearing, Ruch again invoked his Fifth Amendment right, asserting that revocation of his probation would violate that right. Nevertheless, the trial court revoked Ruch s probation, and sentenced him to four years in the Department of Corrections.
9 This appeal followed.
[Paragraphs have been removed]
IV. Failure to Attend Counseling
42 Ruch asserts that the trial court erred by revoking his probation based on his refusal to attend offense specific treatment (counseling). Specifically, he asserts that, by requiring him to attend counseling while his appeal was pending, the trial court violated his Fifth Amendment right against self-incrimination. The prosecution, however, asserts that the trial court did not violate Ruch s Fifth Amendment right because he did not invoke it. Thus, by implication, the People assert that Ruch waived his Fifth Amendment right. We disagree with the prosecution, and conclude, first, that the record indicates that although Ruch never attended counseling, he expressly invoked his Fifth Amendment right and did not waive it. Second, we conclude that the trial court violated Ruch s Fifth Amendment right by revoking his probation based on his failure to attend counseling.
A. Standard of Review
43 We review de novo a defendant s assertion that the trial court violated his or her privilege against self-incrimination. People v. McBride, 228 P.3d 216, 227 (Colo.App. 2009).
B. Relevant Facts
44 During the hearing on the probation officer s January 2010 special report, Ruch s probation officer stated that under the proposed amended terms, Ruch would be required to attend offense specific treatment.
45 The Sex Offender Management Board (SOMB) Standards and Guidelines for the Assessment, Evaluation, Treatment, and Behavioral Monitoring of Adult Sex Offenders (Nov. 2011) (The Guidelines) define offense specific treatment. The Guidelines provide that an offender who refuses to admit to the conduct giving rise to his or her conviction, for more than three months in counseling, shall be terminated from treatment and revocation proceedings should be initiated. The Guidelines at 47, 3.550.
46 As noted earlier, Ruch challenged the probation officer s special report in a written objection in March 2010. The objection invoked Ruch s Fifth Amendment right, asserting that the counseling would require him to admit to the conduct giving rise to his conviction. Because his direct appeal was still pending, Ruch asserted that any admissions would be incriminating and could be used against him should he be granted a new trial.
47 At the April 2010 hearing on the probation officer s special report, Ruch s probation officer testified that under the amended terms, and pursuant to The Guidelines, Ruch would be required to admit to the conduct giving rise to his stalking charge in order to successfully complete the counseling. She stated that if Ruch did not admit to the charged conduct within the first three months of his counseling, she would move to revoke his probation. At this hearing, Ruch did not orally object to the proposed probation counseling requirement based on his Fifth Amendment right to remain silent.
48 Following the hearing, the trial court granted the probation officer s request in the special report, and sentenced Ruch to attend counseling, among other things. Subsequently,Ruch s probation officer moved to revoke Ruch s probation, in part, based on his failure to enroll in or attend counseling. In October 2010, after the trial court found that Ruch violated the terms of his probation, but before it revoked probation, Ruch renewed his objection to revocation based on his failure to attend counseling, arguing that the revocation would violate his Fifth Amendment right.
49 The Fifth Amendment of the United States Constitution protects an individual from having to testify in any way which might tend to subject himself [or herself] to criminal liability. Steiner v. Minnesota Life Ins. Co., 85 P.3d 135, 139 (Colo. 2004); see also U.S. Const. amend. V. The Fifth Amendment privilege against self-incrimination is binding on the states by virtue of the Due Process Clause of the Fourteenth Amendment. See Malloy v. Hogan, 378 U.S. 1, 6 (1964); People v. Taylor, 41 P.3d 681, 689 (Colo. 2002).
1. Invocation and Waiver of Fifth Amendment Right
50 Probationers retain their right against self-incrimination under the Fifth Amendment. People v. Elsbach, 934 P.2d 877, 881 (Colo.App. 1997). However, the right against self-incrimination is not self-executing, and thus, a probationer must invoke his or her right in order for it to apply. Id. Similarly, the right may only be invoked when the person asserting the right faces a real danger of compelled self-incrimination. See People v. Blackwell, 251 P.3d 468, 474 (Colo.App. 2010). Thus, in the probation context, [i]f, as a condition of probation, a probationer is required to participate in therapy which involves truthfully answering questions designed to solicit incriminating responses, no Fifth Amendment violation occurs unless the State, either expressly or by implication, asserts that invocation of the privilege would lead to revocation of probation. Elsbach, 934 P.2d at 881 (quoting Minnesota v. Murphy, 465 U.S. 420, 435 (1984)).
51 In United States v. Antelope, 395 F.3d 1128, 1131 (9th Cir. 2005), the trial court repeatedly sentenced the defendant to probation terms that required him to disclose his full sexual history as a part of his counseling. Each time the court sentenced the defendant, he objected to the terms of the probation, asserting that they violated his Fifth Amendment right against self-incrimination by requiring him to disclose potentially incriminating information about his past sexual acts without immunity. Id. at 1131-32. The trial court denied the defendant s objections. Id. Subsequent to each sentencing, the defendant refused to participate in the required counseling, and the trial court thus revoked his probation. Id.
52 On appeal, the Ninth Circuit held that because the evidence established that the terms of the defendant s probation required him to admit to his entire past sexual history, a real and appreciable danger of self-incrimination existed at the time of sentencing. Id. at 1135. Thus, the court found that the defendant s objection at the time of sentencing was sufficient to invoke his rights. Id. The court then held that by revoking the defendant s probation based on his refusal to attend the required counseling session, the trial court imposed a substantial penalty on the defendant for invoking his rights, and thus violated the defendant s Fifth Amendment right against self-incrimination. Id. at 1138; see also Murphy, 465 U.S. at 435.
53 Here, the prosecution asserts that there is no evidence in the record that [Ruch] ever attended the treatment program, let alone that he was questioned in a manner that would have required him to incriminate himself, or that he ever invoked his Fifth Amendment protections. While we agree that there is no evidence that Ruch attended counseling, we disagree that he failed to invoke his Fifth Amendment right.
54 As in Antelope, the record here contains ample evidence that if Ruch had fully complied with the terms of his probation, he would have been required to incriminate himself by admitting guilt while his direct appeal was still pending. 395 F.3d at 1135. The probation officer s request to amend the probation terms to require counseling, as well as section 3.550 of The Guidelines, made Ruch aware that he would be required to admit guilt or otherwise face revocation of his probation. The probation officer s testimony confirmed this fact. Therefore, we conclude that a real and appreciable danger existed at the time Ruch objected to the proposed terms of his probation. Accordingly, under the circumstances presented here, Ruch was not required to wait until a counselor asked an incriminating question to raise his Fifth Amendment objection. Rather, he was only required to raise his objection once it became known that the terms of his probation required him to incriminate himself or otherwise risk revocation. Accordingly, we conclude that Ruch invoked his Fifth Amendment privilege against self-incrimination.
55 We further conclude that Ruch did not waive his privilege against self-incrimination by failing to reiterate his constitutional objection to the terms of his probation during the April 2010 probation revocation hearing.
56 Once a defendant invokes his or her right to remain silent, that right continues in effect until specifically waived by the defendant. See People v. Arroya, 988 P.2d 1124, 1130 (Colo. 1999) (discussing the right to remain silent during custodial interrogations). When analyzing whether a defendant waived his or her constitutional rights, courts indulge every reasonable presumption against waiver of fundamental constitutional rights, including the right to remain silent. Schriro v. Landrigan, 550 U.S. 465, 484 (2007) (quoting Johnson v. Zerbst,304 U.S. 458, 464 (1938)); see also Roelker v. People, 804 P.2d 1336, 1341 (Colo. 1991) ( The courts do not presume acquiescence in the loss of fundamental constitutional rights, and therefore indulge every reasonable presumption against waiver. ) (quoting People v. Curtis, 681 P.2d 504, 514 (Colo. 1984)).
57 In Palmer v. People, 680 P.2d 525, 526 (Colo. 1984), the defendant stated to the trial court that he wished to testify on his own behalf. However, after a two-hour recess, the defendant failed to reiterate his request. Id. In analyzing whether the defendant s subsequent silence constituted a waiver of his right to testify, the supreme court held that [f]ailure to reiterate assertion of a right does not constitute waiver. Id. at 527. Rather, a trial court may only conclude that a defendant waived his or her fundamental constitutional rights if the surrounding circumstances demonstrate that he or she did so voluntarily, knowingly, and intelligently. Id.; see also People v. Mozee, 723 P.2d 117, 123 (Colo. 1986) (a defendant s waiver of his or her right to remain silent must be voluntary, knowing, and intelligent).
58 As discussed above, Ruch properly invoked his Fifth Amendment right against self-incrimination in March 2010, in his opposition to the proposed terms of probation. His invocation was clear and unambiguous and alerted the trial court to his desire to remain silent in the face of incriminating questioning. Immediately prior to the court s revocation of his probation, in October 2010, Ruch again objected to the court s actions based on his Fifth Amendment right. In light of these two express invocations, and applying every reasonable presumption against waiver, we conclude that Ruch s failure to expressly raise his Fifth Amendment right during the April 2010 probation revocation hearing did not constitute a knowing, intelligent, and voluntary waiver of his right to remain silent. Schriro, 550 U.S. at 484; Mozee, 723 P.2d at 123; see also Arroya, 988 P.2d at 1130 ( [o]nce a criminal suspect invokes his right to remain silent, the police must scrupulously honor the assertion of this right ); People v. Redgebol, 184 P.3d 86, 99 (Colo. 2008) (once a suspect invokes his or her Fifth Amendment right to counsel, the invocation must be fully honored unless the defendant affirmatively waives his or her right by reinitiating police interrogation). Thus, Ruch s failure to reinvoke his Fifth Amendment right during the April 2010 hearing did not constitute a waiver of that right. Palmer, 680 P.2d at 527.
2. Violation of Ruch s Fifth Amendment Right
59 Having concluded that Ruch sufficiently invoked, and did not waive, his Fifth Amendment right, we further conclude that the trial court violated that right by relying on Ruch s failure to enroll in and attend the counseling when it revoked his probation. Antelope, 395 F.3d at 1138.
60 The reasoning in People v. Guatney, 183 P.3d 620 (Colo.App. 2007) (Guatney I), further supports our conclusion. There, the relevant terms of Guatney s probation were identical to Ruch s probation terms, and required him to participate and complete a sexual offender counseling program. Id. at 621. Guatney attended the counseling sessions, but refused to admit to the charged conduct. Id. Accordingly, [a]fter more than six months of treatment, and while [Guatneyâ€™s] appeal was pending, his therapist wrote a report recommending that [his] placement in the treatment program be terminated. Id. Based on the report, Guatney s probation officer moved to revoke his probation. Id. at 622. However, the trial court concluded that revoking Guatney s probation would violate his Fifth Amendment privilege against self-incrimination. Id. Specifically, the trial court noted that because Guatney s underlying criminal case was on direct appeal, any admission of guilt during the counseling program could be used against him, should he be retried. Id.
61 The prosecution appealed the trial court s order, and a division of this court, relying on Murphy, 465 U.S. at 435-36, held that, absent a grant of use immunity, the state may not revoke a defendant s probation based on the assertion of his or her Fifth Amendment right against self-incrimination and the consequent refusal to admit guilt to the offense for which he is on probation while the direct appeal is pending. Id. at 626.
62 On grant of certiorari, the Colorado Supreme Court vacated the division s opinion in Guatney I. People v. Guatney, 214 P.3d 1049 (Colo. 2009) (Guatney II). The supreme court held that the order declining to revoke Guatney s probation was not a final judgment, and therefore the division lacked jurisdiction to address the merits of the appeal. Id. at 1050. The supreme court did not otherwise address the merits of the Guatney I decision.
63 We recognize that Guatney I carries no precedential value following the supreme court s decision to vacate the opinion. Nevertheless, we find the reasoning in Guatney I andAntelope persuasive and adopt it here. Accordingly, we conclude that by considering Ruch s refusal to attend counseling as one ground for revoking his probation, the trial court violated his Fifth Amendment right.
64 Because the trial court erroneously considered Ruch s refusal to attend offense specific counseling as one ground for revoking his probation, we must now determine the appropriate remedy.
65 Any single probation violation can justify a trial court s decision to revoke probation. Loveall, 231 P.3d at 416. However, where a trial court revokes probation based on multiple violations, and we reverse its conclusion with respect to one violation, we can only affirm its decision if the record clearly shows the trial court would have reached the same result even without considering the [reversed violation]. People v. Lientz, 2012 COA 118, 9 (quoting Loveall, 231 P.3d at 416).
66 Here, as noted, we conclude that the trial court could have properly revoked Ruch s probation based on his failure to (1) contact his probation officer at the times and places specified by the officer, (2) receive approval from his probation officer prior to changing his residence, and (3) sign releases of information to allow his probation officer to communicate with members of the community supervision team. However, the record is not clear whether the trial court would have revoked Ruch s probation and imposed the same sentence based on these three violations alone. See Loveall, 231 P.3d at 416. Accordingly, we remand for further findings. See id. at 417 n.13.
67 On remand, the trial court should hold a hearing to determine whether Ruch s probation officer would have still sought to revoke Ruch s probation based solely on the remaining three violations. See id. at 416 ( it is undeniably true that any single probation violation could justify a district court s decision to revoke; however, it is substantially less clear whether the probation officer would exercise his or her discretion to seek revocation ) (emphasis in original). If the trial court determines that the probation officer would have still moved to revokeRuch s probation, then it shall determine whether, based on the remaining three violations, it would still have revoked Ruch s probation. If its answer to this question is in the negative, or if it finds that the probation officer would not have moved for revocation, its revocation order shall be reversed. However, if it determines that the probation officer would have moved to revoke probation, and that it would have granted that motion without the reversed violation, its order shall stand affirmed, subject to Ruch s right to appeal that determination.
68 The case is remanded as directed.
JUDGE GRAHAM and JUDGE HAWTHORNE concur
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 The General Assembly created the SOMB as a means of managing the evaluation and treatment of sex offenders. People v. Brosh, 251 P.3d 456, 460 (Colo.App. 2010); see also 16-11.7-103(1), C.R.S. 2012. Among other things, the SOMB is tasked with develop[ing], implement[ing], and revis[ing], as appropriate, guidelines and standards to treat adult sex offenders. 16-11.7-103(4)(b), C.R.S. 2012.
 The trial court reasoned that any incriminating statements made during counseling would be protected by the state s counselor-patient privilege. Antelope, 395 F.3d at 1131. This conclusion, however, was contradicted by the counselor s testimony that he would be required to report any past sexual incidents involving minors. Id. The trial court also found the defendant s objections not ripe, and concluded that he was required to assert his privilege at the time incriminating questions were asked. Id. at 1132.
 To the extent that the trial court concluded that Ruch refused to attend counseling based on his general lack of cooperation, rather than a refusal to incriminate himself, we reject that conclusion as clearly erroneous. See generally Sanchez-Martinez v. People, 250 P.3d 1248, 1254 (Colo. 2011) ( We defer to the trial court s findings of fact unless they are so clearly erroneous as to find no support in the record. ). The record supports a conclusion that Ruch was uncooperative as to following other terms of his probation. However, his objection to the counseling was based on his previously asserted refusal to incriminate himself.
 Our holding is limited to a defendant s assertion of his or her Fifth Amendment right against self-incrimination in a probation revocation proceeding while a direct appeal is pending in which the defendant has sought a new trial. We need not consider whether the same result would apply when a defendant is seeking or may seek postconviction relief.