Nevertheless, at least two jurisdictions have concluded that the closely-related Alford plea to a sex offense precludes requiring the defendant to admit to the conviction offense as a condition of probation. In State v. Birchler, No. 00AP-311, 2000 WL 1473152 (Ohio Ct. App. Oct. 5, 2000), the Ohio intermediate appellate court considered a defendant who had entered an Alford plea to assault and was sentenced to probation, including sex offender treatment. The defendant was terminated from his treatment program after he failed "to acknowledge specific criminal conduct against a victim or any victim at all."
Carroll cites two decisions from other jurisdictions in support of his position. In State v. Birchler, 2000 Ohio App. LEXIS 4622, at *8 (Ohio Ct. App. 2000) (unpublished), the court reversed the judgment revoking the defendant's probation because he was not given notice when he offered his Alford plea that he would be required to admit he had a victim in order to complete his probation. In People v. Walters, 627 N.Y.S.2d 289, 290-91 (N.Y. Cnty. Ct. 1995), the judgment revoking the defendant's probation was reversed because he was not informed when he entered his Alford plea that he would be required to admit his guilt to the underlying crime during therapy.
In support of his contention, the defendant cites cases from other jurisdictions that have concluded that a defendant, who enters a guilty plea under the Alford doctrine, cannot be deemed to have violated his probation for a failure to admit guilt unless he specifically was informed during the plea canvass that such conduct was proscribed. See, e.g., People v. Walters, 164 Misc.2d 986, 988-89, 627 N.Y.S.2d 289 (1995); State v. Birchler, Ohio Court of Appeals, Docket No. 00AP-311 (October 5, 2000), 2000 Ohio App. Lexis 4622, *3. Those decisions, however, seem to be of the view that a guilty plea under the Alford doctrine carries greater constitutional significance than a standard guilty plea. Without belaboring the point, it suffices to say that we agree with those decisions that have held otherwise; see, e.g., People v. Birdsong, 958 P.2d 1124, 1127 (Colo.
Since discretionary release may not be granted merely as a reward for exemplary conduct, the Board evaluated petitioner's rehabilitative progress to determine if he still posed a danger, and in that connection properly considered remorse and insight into the criminal act. Other states that have considered Alford pleas in the context of parole and probation have reached a like result (see,Cable v. Warden, New Hampshire State Prison, 666 A.2d 967, 968-969 [NH] [notwithstanding Alford plea, parole board could deny parole for failure to complete sex offender program]; State ex rel. Warren v. Schwarz, 579 N.W.2d 698, 711 [Wis] [no promise that petitioner could maintain innocence for purposes other than Alford plea, so that probation revocation based on failure to admit guilt was proper]; contra, State v. Birchler, 2000 WL 1473152 [Ohio App] [probationer who took Alford plea did not have notice that he would be required to admit sex offense]). We conclude that petitioner's personal refusal to admit the specific facts of the crime at the time of the Alford plea did not constrain the Parole Board's ensuing responsibility to confirm, within a reasonable probability, that petitioner is ready to rejoin the community.
Thus, a reviewing court will not reverse a trial court's decision to revoke absent an abuse of discretion. State v. Toler, 154 Ohio App.3d 590, 2003-Ohio-5129, ¶ 5; State v. Birchler (Oct. 5, 2000), 10th Dist. No. 00AP-311. An abuse of discretion connotes more than an error in law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. State v. Maurer (1984), 15 Ohio St.3d 239, 253.
At least two courts in other jurisdictions have agreed with him, holding that a defendant did not violate probation by refusing to admit guilt during sex offender treatment. People v. Walters, 164 Misc.2d 986, 627 N.Y.S.2d 289 (N.Y.Co.Ct. 1995); State v. Birchler, 2000 WL 1473152, 2000 Ohio App. LEXIS 4622 (2000). However, the Commonwealth's position to the contrary is endorsed by several other jurisdictions, which reach the opposite conclusion.
See State v. Faraday, 842 A.2d 567, 587-88 (Conn. 2004) ("Those decisions, [which have found requiring admission inconsistent with the plea], . . . seem to be of the view that a guilty plea under the Alford doctrine carries greater constitutional significance than a standard guilty plea."). But see People v. Walters, 627 N.Y.S.2d 289 (Schoharie County Ct. 1995) ("To require defendant to admit to his factual guilt after treatment, upon threat of incarceration, is directly inconsistent with the plea agreement. . . ."); State v. Birchler, 2000 WL 1473152, at *1 (Ohio Ct.App.) ("Requiring appellant to admit that there was a victim or to specific criminal conduct against a victim would be in contradiction to his maintenance of factual innocence pursuant to Alford.").See Alston, 534 A.2d at 669-70 ("[A]n 'Alford plea' is in no way 'infused with any special promises' . . . nor does acceptance thereof constitute 'a promise that a defendant will never have to admit his guilt.'"); Warren, 579 N.W.2d at 707 ("There is nothing inherent in the nature of an Alford plea that gives a defendant any rights, or promises any limitations, with respect to the punishment imposed after conviction."); State v. Jones, 926 P.2d 1318, 1321 (Idaho Ct.App. 1996) (finding that defendant's Alford plea "did not exempt him from fulfilling the terms of his probation, including the requirement of full disclosure which was deemed essential to successful participation in sexual abuse counseling and rehabilitation.")
{¶ 10} In a somewhat factually similar case, the Tenth District Court of Appeals found that it could not "reconcile [defendant]'s Alford plea and the requirement as a part of his counseling session that he admit he had a victim." State v. Birchler (2000), Franklin App. No. 00AP-311. In Birchler, the defendant entered an Alford guilty plea to an assault charge, while other charges of rape and kidnapping were dismissed. When he was later released on probation, he was required to participate in sex offender counseling.
"To require a defendant to admit to his factual guilt during treatment, upon threat of incarceration, is directly inconsistent with the plea agreement. . . ." State v. Birchler, No. 00AP-311 (Ohio App., Oct. 5, 2000) (unpublished opinion). There also are cases that hold that when a condition of probation requires sex offender treatment as part of the probation conditions, after an Alford plea, there is a violation of the condition if the defendant refuses to admit guilt, for which probation may be revoked.
In support of his contention, the defendant cites cases from other jurisdictions that have concluded that a defendant, who enters a guilty plea under the Alford doctrine, cannot be deemed to have violated his probation for a failure to admit guilt unless he specifically was informed during the plea canvass that such conduct was proscribed. See, e.g, People v. Walters, 164 Misc.2d 986, 988-89, 627 N.Y.S.2d 289 (1995); State v. Birchler, Ohio Court of Appeals, Docket No. 00AP-311 (October 5, 2000), 2000 Ohio App. Lexis 4622, *3. Those decisions, however, seem to be of the view that a guilty plea under the Alford doctrine carries greater constitutional significance than a standard guilty plea. Without belaboring the point, it suffices to say that we agree with those decisions that have held otherwise; see, e.g., People v. Birdsong, 958 P.2d 1124, 1127 (Colo. 1998); State v. Jones, 129 Idaho 471, 474, 926 P.2d 1318 (App. 1996); State v. Alston, 139 N.C.App. 787, 793, 534 S.E.2d 666 (2000); and we conclude that a guilty plea under the Alford doctrine does not carry any special significance in this area.