Sex Offender; Probation Violation

Zebbs v. Com., 785 S.E.2d 493 (Va. Ct. App. 2016)

A defendant whose probation requirements necessitate a sex offender program may be held in violation of his probation when he refuses to abide by a central requirement of the program, namely admitting to the misconduct for which he was convicted. Defendant who entered an Alford plea is treated as if he entered a guilty plea after conviction; therefore, an admission of guilt to the crimes he was charged with does not invoke Fifth Amendment protection.

Background: Defendant Zebbs entered an Alford plea, pleading guilty to forcible sodomy, among two other charges. An Alford plea is treated the same as a guilty plea after the defendant is tried and convicted. Zebbs was required to successfully complete a sex offender treatment program to satisfy the terms of his probation, among other terms. Admitting to the offense for which the offender received probation is a mandatory part of the program. Zebbs refused to admit to his misconduct, arguing that it was a violation of his Fifth Amendment right to require him to verbally incriminate himself and punish him for not doing so. The circuit court found Zebbs in violation of his probation, and he subsequently appealed.

Holding: A valid Fifth Amendment claim must include an admission that may carry the risk of incrimination and a substantial penalty for not giving the incriminating testimony. There was no risk of incrimination here because the misconduct Zebbs was required to admit to had already been litigated and thus an admission after the fact would not give rise to incrimination. Double jeopardy would bar the prosecution of Zebbs for admitting to misconduct for which he had been tried and convicted. Therefore, the Fifth Amendment did not protect Zebbs from cooperating with the sex offender treatment terms and the circuit court did not err in finding that he violated his probation by not completing the treatment.

Found in DMHL Volume 35, Issue 2