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People v. Vigil.

2023 COA 12. No. 20CA0090. Sentencing—Probation Conditions—Revocation—Postconviction Remedies—Fifth Amendment Right Against Self-Incrimination.

February 9, 2023

Vigil was charged with two counts of sexual assault on a child by one in a position of trust based on allegations that he had sexually assaulted his daughter. He testified at trial that he had not sexually assaulted the victim, but he was convicted as charged. The district court sentenced him to two consecutive terms of 10 years to life of sex offender intensive supervision probation (SOISP). Vigil filed a direct appeal, and while the appeal was pending, the district court amended the probation conditions to exempt defendant from having to answer questions or submit to polygraph examinations concerning the underlying case circumstances. The judgment was affirmed, and when the district court received the mandate, it authorized reinstatement of all original SOISP treatment conditions. A month later, the probation department filed a complaint to revoke Vigil’s probation, alleging that he had violated his probation by, among other things, refusing to sign a contract with the sex offender treatment provider, which prevented him from enrolling in offense-specific treatment. The district court found that Vigil had violated his probation. All parties were aware at that time that Vigil was diligently pursuing a timely Crim. P. 35(c) motion. Because Vigil’s direct appeal was complete and he had not yet filed his Rule 35(c) motion, the district court refused defense counsel’s request to make a finding concerning whether Vigil retained a Fifth Amendment right and whether being required to sign the contract would violate that right. Vigil then filed his Rule 35(c) motion. The district court resentenced Vigil to two new consecutive, indeterminate terms of at least 10 years on SOISP. A new treatment provider agreed to request a variance from the Sex Offender Management Board so Vigil could enter treatment without being placed in a position where he would need to invoke his Fifth Amendment privilege against self-incrimination while his Rule 35(c) motion was pending.

On appeal, Vigil argued that the district court erred when it found that he violated his probation by refusing to sign the treatment contract, which contained incriminating language. The state cannot revoke a defendant’s probation based on a valid invocation of the Fifth Amendment privilege against self-incrimination where the conviction is final but the defendant’s initial period for seeking postconviction relief has not run. Here, Vigil refused to sign a treatment contract that contained statements acknowledging he was “in treatment for victimizing others through sexually offensive behavior.” The contract required Vigil to make an incriminating acknowledgment as a precondition to engage in treatment or face probation revocation for failure to enter treatment, and it thus implicated his Fifth Amendment privilege. And because Vigil’s initial period for seeking postconviction relief had not expired, statements acknowledging that he was in treatment for victimizing others through sexually offensive behavior could potentially be used against him at a retrial on the original charges if postconviction relief were granted. Accordingly, the district court erred by revoking Vigil’s probation based on his refusal to sign the treatment contract.

Further, where one basis for probation revocation is set aside on appeal, but one or more bases remain, the case is remanded for further consideration of revocation unless the record clearly shows that the district court would have reached the same result absent the improper basis for revocation. Here, the record does not clearly show that the district court proceedings would have had the same outcome if the court had correctly resolved the Fifth Amendment challenge.

The order revoking probation was reversed and the case was remanded for further proceedings.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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