Use, at Peebles’ sentencing after revocation, of his incriminating statements made during counseling ordered as a condition of probation, violated the 5th amendment and requires resentencing. The court canvasses the leading cases – State v. Evans, 77 Wis. 2d 225, 252 N.W.2d 664 (1977); State v. Thompson, 142 Wis. 2d 821, 419 N.W.2d 564 (Ct. App. 1987); State ex rel. Tate v. Schwarz, 2002 WI 127, 257 Wis. 2d 40, 654 N.W.2d 438 – and synthesizes, then applies, them as follows:
¶19 In summary, Peebles’ three cases give rise to the following four general rules: First, if a probationer refuses to incriminate himself or herself as required by a condition of supervision, he or she cannot be automatically revoked on that ground; second, if the probationer refuses despite a grant of immunity, his or her probation may be revoked on that basis; third, any incriminating statements the probationer provides under the grant of immunity may be used as justification for revocation, but not used in any criminal proceedings; and fourth, if a probationer is compelled by way of probation rules to incriminate himself or herself, the resulting statements may not be used in any criminal proceeding.
¶20 We now apply the foregoing principles to the present case. Peebles’ situation falls under the second of the two categories of cases we described at the outset; i.e., rather than invoking the privilege, he provided statements and now seeks to exclude them in a subsequent criminal proceeding, arguing they were compelled. Both the circuit court and Peebles’ probation agent ordered Peebles to attend sex offender counseling. His supervision rules required that he be truthful, that he submit to lie detector tests, and that he fully cooperate with and successfully complete sex offender counseling. Both of the supervision rules documents explicitly informed him he could be revoked for failure to comply with any conditions. Moreover, Peebles then gave his statements, at least in part, because he was required to take lie detector tests. Therefore, as Peebles’ trio of cases makes clear, his statements were compelled for purposes of the Fifth Amendment.
The court continues the discussion, largely to refute the State’s arguments. Rough summary follows.
The 5th A privilege continues at sentencing, and compelled statements such as Peebles’ used as aggravating sentencing factors should be excluded at that proceeding; State v. Brimer, 2010 WI App 57 (admissions to p.o. may be used at reconfinement proceeding, because it isn’t a sentencing; the one being an administrative and the other a criminal proceeding), distinguished, ¶21. This leads to a related point, namely that Peebles’ potential exposure to prosecution for his statements was simply inconsequential, because whatever statements he was compelled to make on pain of revocation could and would be used in this criminal proceeding, namely the sentencing after revocation, id.
Peebles’ guilty plea didn’t operate as a waiver of his 5th A rights; State reliance on State v. Carrizales, 191 Wis. 2d 85, 528 N.W.2d 29 (Ct. App. 1995), rejected: 1) there, counseling as condition of probation was part of plea agreement, while here, State recommended prison, not probation; 2) Carrizales endured no threat of new criminal consequences from compelled admission of guilt to his crime of conviction, whereas Peebles’ statements could be (and were) used against him in a subsequent criminal proceeding; 3) the issue in Carrizales concerned use of compelled statements in a noncriminal (administrative revocation) proceeding, and even then only involving the non-privileged admission to the offense Carrizales had already admitted when he entered his plea, in contrast to Peebles’ forced admission to multiple uncharged offenses. ¶¶24-26.
Because trial counsel didn’t object to use of Peebles’ statements, the challenge is raised as a matter of ineffective assistance of counsel. The State argues that counsel couldn’t have performed deficiently, inasmuch as “there was no existing case precisely on point,” ¶28. Though this assertion is, according to the court, “unsupported by legal authority,” it is almost certainly the refrain raised by the State with the same frequency as postseason appearances by the Yankees: if the argument is at all novel, it is too novel to expect counsel to raise it. E.g., State v. John R. Maloney, 2005 WI 74, ¶¶23-30 (citing with approval, State v. Thayer, 2001 WI App 51, ¶14, for idea that “counsel is not required to argue a point of law that is unclear”); State v. Jennifer Wery, 2007 WI App 169, ¶17 (“Deficient performance is limited to situations where the law or duty is clear such that reasonable counsel should know enough to raise the issue.”); State v. Jason K. Van Buren, 2008 WI App 26, ¶¶18-19 (“Even if Van Buren is correct and false-confession expert testimony should be admitted, the published and unpublished cases contain only one instance of its introduction at a trial in Wisconsin, nearly fifty years ago.”); State v. McMahon, 186 Wis. 2d 68, 84, 519 N.W.2d 621 (Ct. App. 1994) (counsel “is not required to object and argue a point of law that is unsettled”). But the court here is unimpressed with the State’s claim, deeming Peebles’ argument “not so novel” in light of settled law applying the 5th A to probationers. “Reasonably competent counsel would have known, or discovered, that the Fifth Amendment privilege applies to probationers, including those required to provide admissions in sex offender counseling,” ¶28.