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Virginia Court Affirms Parole Revocation for Sex Offender Who Refused to Admit Guilt

On May 17, 2016, the Court of Appeals of Virginia denied the appeal of a man whose parole was revoked when he refused to admit that he was guilty of the offense for which he pled guilty. The man was convicted of a sex offense and was required to complete sex offender treatment as part of his sentence.

The defendant, Arthur Zebbs, entered an Alford plea to charges of forcible sodomy and unlawful filming of a minor. An Alford plea acknowledges a jury might convict based on the evidence, but does not admit guilt itself. Zebbs was sentenced to 25 years in prison, with 13 years suspended, and to a term of probation. As part of the probation, Zebbs was required to undergo and complete sex offender treatment.

Zebbs was released to probation in 2012. The treatment program requires participants to admit the crimes for which they were convicted. Zebbs, however, steadfastly maintained his innocence and refused to admit any guilt. The circuit court initially found him in violation of his probation but took no further action.

Zebbs was given a second chance to finish sex offender treatment, but again he refused to admit guilt for his crimes of conviction. A second petition to revoke his probation was filed with the court, and this time the court imposed what amounted to one year in prison, and re-suspended the rest of Zebbs' sentence. Zebbs appealed, arguing that Fifth Amendment protections prevent him from being punished for refusing to admit wrongdoing.

The Fifth Amendment states that "no person shall be compelled in any criminal case to be a witness against himself." A Fifth Amendment\•, violation occurs when a person is compelled to give testimony against himself or face a "substantial penalty" after electing to exercise his right not to give evidence against himself.

The appellate court first acknowledged that Fifth Amendment protections "do not evaporate following one's conviction and sentencing," nor are the protections diluted during a probationary period. However, the court observed, the Fifth Amendment does not immunize people from making "difficult or embarrassing choices."

Turning to the facts of this case, the court of appeals held that Zebbs had no valid Fifth Amendment claim because such a claim only applies where a person is asked to incriminate himself and expose him to a criminal charge. "If the criminality has already been taken away, the Amendment cease to apply," wrote the court.

The court further found the fact that Zebbs entered Alford pleas, and did not admit his guilt, was of no moment. "Once an accused has been found guilty and sentenced, any distinction between an ordinary plea and an Alford plea ceases to be relevant for purposes of subsequent violation of a suspended sentence."

The court of appeals concluded that Zebbs' Fifth Amendment claim was not affected by his Alford plea because such a plea does not alter his obligation to comply with the requirements of his sex offender treatment, and since he was not subject to any further prosecution based on any admissions he would make during the course of treatment, Zebbs' Fifth Amendment claim failed and his parole revocation was affirmed. See: Zebbs v. Commonwealth of Virginia, Record No. 0933-15-1 (CA Va.), May 17, 2016.

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Related legal case

Zebbs v. Commonwealth of Virginia