Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bennett v. Bigelow

Supreme Court of Utah

November 25, 2016

Brendt Thomas Bennett, Appellant,
v.
Alfred Bigelow, et al., Appellee.

         On Petition for Extraordinary Relief Sixth District, Manti The Honorable Marvin D. Bagley No. 20140683

          Linda M. Jones, Troy L. Booher, Erin B. Hull, Salt Lake City, for appellant

          Sean D. Reyes, Att'y Gen., Brent A. Burnett, Sharell S. Reber, Asst. Att'ys Gen., Salt Lake City, for appellee

          Chief Justice Durrant authored the opinion of the court, in which Associate Chief Justice Lee, Justice Durham, and Justice Himonas joined.

          OPINION

          Durrant, Chief Justice

         Introduction

         ¶ 1 Brendt Bennett claims that his Fifth Amendment rights were violated when he was required to disclose his entire sexual history, including any uncharged sexual crimes, as part of his sex offender treatment during parole. He refused to make these disclosures and his parole was revoked, requiring him to return to prison to potentially serve the remainder of his indeterminate six year to life sentence. The district court dismissed Mr. Bennett's Fifth Amendment challenge to the parole revocation at summary judgment. We hold that Mr. Bennett has established that genuine issues of material fact exist that preclude the grant of summary judgment and reverse.

         Background

         ¶ 2 Mr. Bennett pleaded guilty to one count of rape of a child, a first-degree felony, in August 2000. The district court sentenced him to an indeterminate sentence of six years to life. In 2007, after Mr. Bennett successfully completed an in-prison sex offender treatment program, the Board of Pardons and Parole (Board) granted him his first opportunity to be released on parole. He was paroled to the Bonneville Community Correctional Center (BCCC). As a condition of parole, Mr. Bennett was to successfully complete the BCCC sex offender program. The Department of Corrections was instructed to immediately notify the Board if Mr. Bennett was removed from the program.

         ¶ 3 As part of his first attempt in the BCCC program, Mr. Bennett was required to give a complete sexual history, including any past charged or uncharged sex offenses. He was given several assignments and other requirements in order to successfully complete the BCCC program, including treatment journals, psychosexual testing, an autobiography, and a polygraph test. One such assignment was to complete an "Offense Report." This report had two purposes: "First, to help [the offender] make a complete disclosure which is essential to a successful treatment experience. Second, to assist [the offender] in gaining a thorough picture of all details of [his or her] offense(s)." The instructions to the report "encouraged [the offender] to complete the assignment in a detailed way." As part of this report, the offender had to complete a "Victim Form" and a "Victim Narrative."

         ¶ 4 The instructions to the Victim Form stated that the offender must complete a separate form for "[e]very person with whom [the offender] had sexual contact [before the offender was 18 years of age] who was 3 years or more[] younger than [the offender]" as well as "[e]very person under 18 with whom [the offender] had any sexual contact" and "[a]ny person with whom [the offender] had non-consensual sexual contact" after the offender was 18 years old. The form itself required the offender to provide the victim's name, age, and sex as well as the offender's age at the time of first contact. The offender was then required to indicate the type and amount of sexual contact with the victim. The final part of the form required the offender to describe the month and year of the first and last sexual contact of any kind with the victim. The form did not indicate that the person completing it should limit his or her responses in any way.

         ¶ 5 The instructions to the Victim Narrative required the offender to "[d]escribe all the activities . . . that are listed and counted on the victim form" and suggested that the narrative "[m]ay be several pages for each victim." There were nine specific requirements to a victim narrative: first, the offender was required to provide the victim's name or some other means to identify the victim. The instructions warned the offender to "not divulge the last names of victims to the group" and to "[u]se only the first name to protect your victim[']s identities." If the offender did not know or could not recall the name, the offender should "use some other means to identify the victim, such as 'My sister's 8-year[-]old friend.'" Second, the offender had to describe how the victim may have been related to the offender and how the offender became acquainted with the victim, with examples such as "your sister or brother or . . . your wife or girlfriend." Third, the offender had to provide the age of both the offender and victim when victimization began.

         ¶ 6 Fourth, the offender was required to detail "the entire story, " including how the offender met the victim, how the offender got the victim alone, and how the offender "abused this victim, " including whether the offender's behavior or tactics changed in an important way over time. Fifth, the offender had to provide the number of times the victimization occurred. The instructions provided as an example, "I abused Susie twice a week for six months." Sixth, the offender had to describe where the abuse took place, such as the victim's bedroom or in an abandoned building. Seventh, the offender was required to explain what he or she did to get the victim to cooperate. This required the offender to "[d]escribe what you said to the victim in order for the victim to feel the need to cooperate" and to "[t]hink about how your superiority may have influenced the victim." As examples, the instructions ask "was she your granddaughter, a stepchild, or 10 years younger." Eighth, the offender had to describe how he or she kept the victim from telling, such as deceit, threats, or other intimidation. Ninth, the offender was required to describe how the offense was discovered or, if it was not, to "write something [like] 'She never reported the abuse and I was never caught.'" Mr. Bennett completed both the Victim Forms and the Victim Narratives during his first attempt in the BCCC program. Prior to doing so, he was not given a warning to limit his disclosures in any way.

         ¶ 7 Mr. Bennett was also required to undergo therapy during his first attempt in the program. During this therapy, Mr. Bennett orally disclosed detailed information about uncharged sex offenses against five victims to his BCCC therapist, Ann Erickson, as part of providing his sexual history disclosure. Ms. Erickson did not warn him about any duty to report prior to this disclosure. Immediately after Mr. Bennett had provided specific information about the five victims, Ms. Erickson told him he should not have specifically identified the victims as it triggered her duty to report the offenses. Mr. Bennett states in his opening brief that the uncharged offenses he initially reported were not incriminating because the State was aware of these offenses before the initial prosecution and the statute of limitation had run.

         ¶ 8 Also as part of Mr. Bennett's first attempt in the BCCC program, Mr. Bennett was required to undergo a polygraph test verifying that he had fully disclosed his sexual history. The questions the examiner asked during Mr. Bennett's first exam during his first parole and attempt in the program included the following: "Since turning eighteen, have you sexually touched the genitals of any minors other than your victim of conviction?"; Are you intentionally withholding any of the sexual abuse you perpetrated against [your victim of conviction]?”; "Do you have sexual victims that you are intentionally withholding from your therapist?"; "Other than what we discussed, have you forced anyone to have physical sexual contact prior to your date of conviction?"; and "Have you intentionally withheld any victims from your sexual history report?" Mr. Bennett invoked his Fifth Amendment right against self-incrimination and, though he answered some of the questions in a general way, he refused to provide more specific answers. He claims that the "treatment team pointedly demanded answers to questions that would require me to incriminate myself, " and that BCCC staff "called [his] non-incriminating answers 'vague.'" Mr. Bennett failed the initial polygraph test and a second polygraph was scheduled. At the second polygraph examination, he again invoked his Fifth Amendment rights and again failed.

         ¶ 9 A warrant was subsequently issued for Mr. Bennett's arrest. The authorities sought the warrant because of Mr. Bennett's failure to successfully progress in the BCCC program. BCCC staff stated that he presented "as artificial and emotionally closed off in therapy" and was "manipulative and admits to being purposefully deceitful." Further, because of his shortcomings in the program, they considered him "a risk to community safety." Mr. Bennett also alleges that the BCCC program director, Mr. Greenberg, told him while arresting him that "[y]ou claimed a Fifth Amendment right. When you do that you can't complete the program."

         ¶ 10 Mr. Bennett challenged the State's grounds for revoking his parole. The Board held a revocation and evidentiary hearing.[1] The State submitted the affidavit of BCCC supervisor Craig Greenberg describing the general procedures for parolees in treatment.[2] In the affidavit, Mr. Greenberg stated that "[o]ffenders are told how to appropriately disclose uncharged victim information at many stages of therapy, including the intake process, during their first treatment team hearing, in their various group meetings, and reinforced during offender's individual therapy sessions." Further, Mr. Greenberg stated that offenders are instructed to identify the victim only by gender and age. And they are specifically warned "not to disclose identifying information such as the victim's name or other identifying features, the nature of the relationship with the victim, or where the abuse took place." Mr. Greenberg also said that he was "not aware of any offender who has been prosecuted during the 13 years [he has] been associated with the Sex Offender Treatment program, based on the general disclosure information required as part of the sex offender treatment."

         ¶ 11 In the affidavit, Mr. Greenberg also made clear the role of the BCCC in relation to the decision to revoke parole. He stated that the "Department is under a statutory obligation to provide the Board progress reports as to the sex offender's participation or nonparticipation in sex offender treatment." The BCCC staff makes recommendations about parole status, but the Board makes the final parole decisions. Mr. Greenberg observed that the Board has "paroled sex offenders where a treatment staff's recommendation has been against parole, and the Board has continued incarceration where staff has recommended parole." He described the BCCC staff recommendations as one of "a myriad of factors" the Board considers when making parole determinations. Mr. Greenberg did not discuss the specifics of Mr. Bennett's case.

         ¶ 12 After considering Mr. Bennett's self-incrimination claim, the hearing officer found that the general program, as described by Mr. Greenberg, would not have violated Mr. Bennett's rights. But it appears that the hearing officer did intend to proceed with an evidentiary hearing because of concerns about whether the program, as applied to Mr. Bennett, may have violated his rights.[3] Mr. Bennett pleaded no contest, however, in order to "pursue that issue in federal court." The Board then revoked Mr. Bennett's parole.

          ¶ 13 A month later, the Board again released Mr. Bennett on parole on the condition that he successfully complete the BCCC sex offender treatment program. It is not clear from the record what requirements or assignments, aside from therapy, Mr. Bennett was required to complete as part of his second attempt in the program, or whether those requirements and assignments were the same as in his first attempt, as his second attempt was short-lived. Indeed, his second parole, which included his second attempt to successfully complete the BCCC program, lasted only ten days.

         ¶ 14 The only evidence in the record as to what Mr. Bennett was required to do in his second attempt indicates that he attempted to engage in therapy and almost immediately failed the program. Mr. Bennett claims that he

met with the sex offender program therapist for an initial interview. The therapist made it clear to [him] that in order to successfully complete the [B]CCC sex offender program [he] must agree to abandon [his] legal position about self-incrimination and provide a self-incriminating full disclosure. [He] refused to do so and asserted a claim against self-incrimination.

The BCCC puts forth a starkly different version of the encounter in the "treatment summary" it provided when it recommended that parole be revoked. The treatment summary states that at this initial meeting with his therapist-the beginning of his second attempt in the BCCC program-Mr. Bennett read a statement attributed to his lawyer that "[i]f Mr. Bennett is removed from treatment[, ] he will file a lawsuit and will most likely prevail." The therapist then reminded Mr. Bennett that he needed to fully participate in the program including "discussing his issues of sexual deviancy" and reviewed the BCCC's disclosure protocols. Specifically, Mr. Bennett "was told the program expectations regarding uncharged crimes are that he disclose age and gender of the victim and the deviant sexual act perpetuated. He was notified that he [was] not expected to provide any identifying information that would trigger a duty to report." Mr. Bennett responded that "he knew this and that he and treatment staff had 'gone over it many times, '" but that he was still invoking the Fifth Amendment to refuse to answer what he considered to be incriminatory questions.

         ¶ 15 The BCCC consequently sought a warrant, stating in its Warrant Request & Parole Violation Report that Mr. Bennett was "being removed from [the program] because he demonstrates an unwillingness to comply with treatment guidelines . . . and program expectations." The report also noted that this was the same behavior and unwillingness that caused his first parole to be revoked. The Board issued another warrant for his arrest and eventually revoked its second grant of parole to Mr. Bennett.

         ¶ 16 Mr. Bennett filed a Petition for Extraordinary Relief in September 2009 against Warden Alfred Bigelow and the Utah Board of Pardons and Parole (collectively, "State"), claiming, inter alia, that the BCCC program unconstitutionally required him to incriminate himself. With his petition, Mr. Bennett included a request that the court appoint pro bono counsel, which the court denied. The State filed a motion for summary judgment, which Mr. Bennett opposed, again asking the court to appoint counsel. The district court granted the State's motion after finding that no issues of material fact existed that would preclude summary judgment. The court also again denied Mr. Bennett's request for counsel, concluding that the second request was, under the applicable Utah Rules of Civil Procedure, an inappropriate motion to reconsider the court's prior denial. Mr. Bennett now appeals the district court's refusal to appoint counsel as well as its grant of summary judgment on the constitutionality of the BCCC's requirement that he disclose previously undisclosed criminal acts. We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(j).

         Standard of Review

         ¶ 17 Mr. Bennett raises two issues on appeal. First, he asks us to review the district court's decision to deny his second request for appointment of counsel as a misapplication of the Rules of Civil Procedure. While a decision to reconsider an issue already ruled upon is in the discretion of the district court, [4] the interpretation of the rules of civil procedure is a legal issue we review for correctness. Second, he asks us to review the district court's decision on summary judgment that the State did not violate Mr. Bennett's Fifth Amendment rights. "[W]e review a grant of 'summary judgment for correctness, granting no deference to the [lower] court.'"[5] Summary judgment is appropriate only "when the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."[6] In reviewing the trial court's decision, "we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party, " which in this case is Mr. Bennett.[7]

         Analysis

         ¶ 18 Our discussion of Mr. Bennett's claims proceeds as follows: First we address his argument that the trial court erred in concluding that rule 54 of the Utah Rules of Civil Procedure prevented it from considering his second request for counsel. We hold that the court erred in its interpretation of the rule and instruct the court, on remand, to reconsider whether counsel should be appointed for Mr. Bennett. We then address his claim that the requirement that he disclose charged and uncharged sex crimes as part of his sex offender treatment on parole violated his Fifth Amendment right to be free from compelled self-incrimination. We first note that Mr. Bennett has established standing to assert this claim and then address the claim on the merits, concluding that Mr. Bennett has established that genuine issues of material fact exist that preclude summary judgment. Accordingly, we reverse the grant of summary judgment and remand.

         I. The Trial Court Erred by Refusing to Consider Whether to Appoint Counsel

         ¶ 19 Mr. Bennett twice requested that he be appointed counsel: First when he filed his petition and second after he filed his response to the State's motion for summary judgment. The trial court, recognizing that it had the discretion to appoint counsel under Utah Code section 78B-9-109(1), denied the first request based on its evaluation of the two factors found in section 78B-9-109(2).[8] When Mr. Bennett again requested that counsel be appointed, the court considered the request to be a motion to reconsider its earlier denial of Mr. Bennett's request for counsel. The court found "no provision in the [Rules of Civil Procedure] for motions for reconsideration" and stated that rule 54, the basis for Mr. Bennett's argument, applies only to "judgments, " which are "order[s] from which an appeal lies." Since the prior denial was not such an order, the court concluded that it did not have the ability to reconsider it and again denied Mr. Bennett's request.

         ¶ 20 The trial court's conclusion that rule 54 prevented it from reconsidering Mr. Bennett's request for counsel was erroneous. Indeed, the parties agree as to this point. Rule 54 contemplates orders and other decisions that "adjudicate[] fewer than all the claims or the rights and liabilities of fewer than all the parties."[9] Such orders do "not end the action . . . and may be changed at any time before the entry of judgment."[10] Although "this court has consistently held that our rules of civil procedure do not provide for a motion for reconsideration of a trial court's order or judgment, " a motion such as Mr. Bennett's is, "in essence, not a motion for reconsideration at all, but simply a reargument" of the motion or request that gave rise to the prior order.[11] And under rule 54, "a trial court is free to entertain [the reargument] at any point prior to entry of a final order or judgment."[12]

         ¶ 21 Accordingly, the trial court erred when it concluded that rule 54 prohibited its consideration of Mr. Bennett's second request for counsel. And because we reverse the grant of summary judgment, the court on remand should consider whether counsel should be appointed for future proceedings under Utah Code section 78B-9-109.[13] We turn now to the issue of whether Mr. Bennett has standing to assert a Fifth Amendment challenge.

         II. Mr. Bennett Has Standing to Assert His Fifth Amendment Claim

         ¶ 22 After oral argument in this case, we asked the parties to brief the question of whether Mr. Bennett had established that he had standing to assert his Fifth Amendment claim, in order to ensure that we had jurisdiction.[14] After reviewing the parties' briefs and the record in this case, we conclude that Mr. Bennett has established standing under the standard articulated in Brown v. Division of Water Rights.[15] As we discuss in the next section, Mr. Bennett has established that issues of material fact exist as to whether he was compelled to provide incriminating information as part of the BCCC program. Thus, Mr. Bennett has established "a reasonable probability" of an injury[16] that has at least "some causal relationship" with "the governmental actions and the relief requested."[17] And because a judicial order reinstating Mr. Bennett's parole and forbidding the alleged unconstitutional questioning would redress Mr. Bennett's alleged injury[18]-the violation of his Fifth Amendment rights in the program-Mr. Bennett has established each prong of our three-part standing test.[19] We turn now to our analysis of the merits of Mr. Bennett's Fifth Amendment claim.

         III. Genuine Issues of Material Fact Exist as to Mr. Bennett's Fifth Amendment Claim

         ¶ 23 The Fifth Amendment of the United States Constitution guarantees that no person "shall be compelled in any criminal case to be a witness against himself."[20] The protections offered by the Fifth Amendment extend beyond the context of a criminal trial, granting an individual the right "not to answer official questions put to him in any . . . proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings."[21] And this right is not lost by conviction and incarceration. Indeed, the United States Supreme Court has specifically held that "[a] defendant does not lose [Fifth Amendment] protection by reason of his conviction of a crime; notwithstanding that a defendant is imprisoned or on probation at the time he makes incriminating statements."[22] Thus, Mr. Bennett retains the rights guaranteed by the Fifth Amendment throughout his incarceration and any periods of parole.

         ¶ 24 Whether Mr. Bennett may properly invoke the Fifth Amendment to avoid answering questions depends on whether he can satisfy a two-prong test: "(1) that the testimony desired by the government carried the risk of incrimination . . ., and (2) that the penalty he suffered amounted to compulsion."[23] Because Mr. Bennett's claim was dismissed on summary judgment, he must establish that genuine issues of material fact exist as to both of these prongs. We discuss each in turn, beginning with whether the BCCC program's questioning carried a risk of incrimination and ending with whether the revocation of parole for refusing to answer incriminating questions amounts to compulsion. We conclude that Mr. Bennett has demonstrated issues of material fact as to both prongs and reverse the grant of summary judgment.

         A. There Are Issues of Material Fact as to Whether Mr. Bennett's Disclosures in the BCCC Program Would Be Incriminatory

         ¶ 25 The first prong of the Fifth Amendment analysis asks whether "the testimony desired by the government carried the risk of incrimination."[24] The trial court did not address this prong of the analysis in making its decision, instead relying entirely on cases addressing the issue of compulsion: McKune v. Lile[25] and State v. Pritchett.[26] In its brief responding to Mr. Bennett, the State likewise did not argue that the BCCC questioning posed no risk of incrimination, even though Mr. Bennett had argued that he did indeed face a risk of incrimination due to the program's requirement that he disclose charged and uncharged sex crimes. Instead, the State rested its argument entirely on its claim that, even if the required information was incriminating, Mr. Bennett was not compelled to provide the information. Accordingly, the State has effectively conceded that an issue of fact exists as to whether the BCCC questioning posed some risk of incrimination. This position is understandable given the low bar necessary to establish such a risk.[27]

         ¶ 26 The State did cursorily suggest in its supplemental briefing on standing that because the BCCC program director, Mr. Greenberg, stated that Mr. Bennett was warned to not provide incriminating information as per program policies, there was no risk of incrimination.[28] Even if we were to permit the State to raise this issue for the first time by way of supplemental briefing on a jurisdictional issue and to assume it to be adequately briefed, all the director's statement does is establish that an issue of fact remains as to what Mr. Bennett was required to disclose. Mr. Greenberg's statement that the BCCC program does not require offenders to "disclose identifying information such as the victim's name . . . the nature of the relationship with the victim, or where the abuse took place" is specifically contradicted by the Victim Form and Victim Narrative. These reports require offenders to disclose the victim's name (possibly limited to only the first name), the relationship between the victim and the offender (such as "your sister or brother or . . . your wife or girlfriend"), how the offender met and became aware of the victim, how the offender exerted control over the victim (such as by using a relationship like "she [was] your granddaughter [or] a stepchild"), and where the abuse took place. We therefore hold that Mr. Bennett has established that a genuine issue of material fact exists as to the first prong of the Fifth Amendment analysis- whether he faced a risk of incrimination. We turn now to the second prong of the test: whether Mr. Bennett has established that an issue of fact exists as to whether he was compelled to answer the potentially incriminating questions.

         B. There Are Issues of Material Fact as to Whether Mr. Bennett Was Compelled to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.