Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 10CA2436
Attorneys for Petitioner: Cynthia H. Coffman, Attorney General Wendy J. Ritz, First Assistant Attorney General Denver, Colorado
Attorneys for Respondent: Douglas K. Wilson, Public Defender Michael C. Mattis, Deputy Public Defender Denver, Colorado
¶1 This case requires us to determine whether the trial court properly revoked respondent Carl Daniel Ruch's probation for, among other things, refusing to enroll or participate in sex offender treatment based on his concern that in the course of such treatment, he would have been compelled to incriminate himself in violation of the Fifth Amendment.
¶2 As a condition of probation, the trial court ordered Ruch to complete a sex offender polygraph and participate in sex offense specific treatment intervention. Ruch, however, refused to enroll or participate in such treatment, contending that participating would have violated his privilege against self-incrimination.
¶3 As a result of Ruch's refusal to enroll or participate in treatment, as well as his violations of certain other probation conditions, the trial court revoked Ruch's probation and sentenced him to a prison term. A division of the court of appeals concluded, however, that on the facts of this case, revoking Ruch's probation based on his refusal to attend sex offender treatment violated his Fifth Amendment rights. The division thus remanded the case to the trial court to determine whether Ruch's probation officer would have sought to revoke Ruch's probation based solely on the remaining probation violations and, if so, whether the court would have revoked Ruch's probation on those grounds.
¶4 We reverse. Unlike the division, we perceive no Fifth Amendment violation here, where the trial court revoked Ruch's probation based on his total refusal to attend treatment. In these circumstances, Ruch's purported invocation of his Fifth Amendment rights was premature and amounted to a prohibited blanket assertion of the privilege.
¶5 Accordingly, we hold that the trial court properly revoked Ruch's probation based on his refusal to attend treatment, and we remand this case with instructions that the trial court's order be reinstated.
I. Facts and Procedural History
¶6 In the spring and summer of 2007, Ruch repeatedly contacted and sent unwanted text messages to the fifteen-year-old victim, who was on the same high school cheerleading team as Ruch's daughter (Ruch was the president of the booster club for the team). The victim eventually reported these contacts to the police and also alleged that Ruch had touched her butt during a party at his home.
¶7 As a result of these allegations, Ruch was charged with sexual assault on a child by one in a position of trust and harassment-stalking (causing emotional distress). The case ultimately proceeded to trial, where the jury found Ruch not guilty of the sexual assault charge but guilty of the stalking charge.
¶8 Prior to sentencing, the trial court ordered Ruch to undergo a psychosexual evaluation, which the court said would provide it with information to consider at sentencing. Ruch participated in the evaluation, and the evaluator found him to be cooperative but cautious and at times evasive.
¶9 The case proceeded to sentencing, and at the sentencing hearing, Ruch's counsel explained that Ruch had been cautious in discussing the charged conduct because he was contemplating an appeal. Accordingly, during the evaluation, he was trying to balance his court-ordered obligation to cooperate with ...