In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3560

PHILIP I. WARREN,

Petitioner-Appellant,

v.

RICHLAND COUNTY CIRCUIT COURT
and JON LITSCHER, Secretary, Wisconsin
Department of Corrections,

Respondents-Appellees.



Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99-C-234--Barbara B. Crabb, Judge.


Argued March 30, 2000--Decided August 4, 2000




  Before Bauer, Diane P. Wood, and Williams, Circuit
Judges.

  Bauer, Circuit Judge. Philip Warren petitions
for a writ of habeas corpus pursuant to 28 U.S.C.
sec.2254. He claims that the Wisconsin Circuit
Court and Department of Corrections violated his
Fourteenth Amendment right to due process when it
revoked his probation. The District Court denied
Warren’s petition for habeas relief. Warren v.
Richland County Circuit Court, et al., No. 99-C-
234 (W.D.Wis. Sept. 15, 1999). We affirm.

I.  BACKGROUND
  Warren does not challenge the Wisconsin state
courts’ statements of fact. Those facts are
entitled to a presumption of correctness and we
adopt them here. Kines v. Godinez, 7 F.3d 674,
677 (7th Cir. 1993), cert. denied, 510 U.S. 1200,
114 S.Ct. 1314, 127 L.Ed.2d 664 (1994).

  Philip Warren was charged with two counts of
sexually assaulting the ten year old daughter of
his former live-in girlfriend. The girl testified
at the preliminary hearing that Warren touched
her "in the wrong places" while she and her
mother were living with him. She explained that
Warren touched her breasts and crotch on two
occasions and that the touching was not "like
tickling." Officer Virginia Cupp also testified
at the preliminary hearing, relating statements
made by the child during an interview with the
investigating authorities. The court found
probable cause and bound Warren over for trial.

  In a deal reached with the prosecutor, Warren
entered an Alford/1 plea to one of the charges
against him, and the State dismissed the
remaining charge and recommend that Warren be
placed on probation. Before accepting the plea,
the court reminded Warren of the important rights
he was waiving, questioned defense counsel as to
the voluntariness of the plea and cautioned
Warren that his probation would be revoked if he
failed to complete the terms of his probation.
Satisfied that there was strong evidence of guilt
despite Warren’s claims of innocence, the court
then accepted the Alford plea and entered a
judgment of conviction against Warren for sexual
assault of a child.

  The court sentenced Warren to five years in
prison, but stayed that term and placed Warren on
eight years probation. One of the court-ordered
conditions of probation was that Warren cooperate
with and complete any counseling ordered by the
Department of Corrections. Warren did so for five
years, participating on three separate occasions
in sex offender treatment programs. He attended
every session and participated in the group
discussions. But, he consistently refused during
his counseling sessions to admit he had committed
a sexual offense, a requirement for
rehabilitation and successful completion of the
program. Warren was repeatedly warned of the
implications of his behavior, including the risk
of revocation, yet he persisted and five years
after he began probation, the Department of
Corrections issued a notice of violation. After
a hearing, Warren’s probation was revoked and he
was ordered to begin serving his five year
sentence.

  Warren sought review of the Department’s
revocation decision by petitioning the circuit
court for a writ of certiorari pursuant to Wis.
Stat. sec.781.01. He argued that the Department’s
requirement that he admit his guilt during sex
offender counseling violated his due process
because it was inconsistent with the State’s
acceptance of his Alford plea in the criminal
proceeding. The court found no merit to Warren’s
argument and affirmed the Department’s decision
to revoke Warren’s probation. The Court of
Appeals affirmed and the Wisconsin Supreme Court
agreed. See State ex rel. Warren, 211 Wis.2d 710,
566 N.W.2d 173 (1997); State ex rel. Warren v.
Schwartz, 219 Wis.2d 615, 579 N.W.2d 698 (1998).
Following an unsuccessful petition for a writ of
habeas corpus to the U.S. District Court for the
Western District of Wisconsin, Warren v. Richland
County Circuit Court, et al., No. 99-C-234
(W.D.Wis. Sept. 15, 1999), Warren appealed to us,
claiming that his Alford plea was
constitutionally defective because the court did
not advise him that he would not be able to
maintain his claim of innocence during counseling
and that his ignorance of that fact rendered his
plea unknowing and involuntary. He also claims
that the State breached the plea agreement by
seeking to imprison him for his failure to admit
guilt during the sex offender treatment
counseling. We affirm the District Court.

II.    DISCUSSION

  Federal courts may grant a writ of habeas
corpus when a person is held in custody under a
state court judgment in violation of the United
States Constitution. 28 U.S.C. sec.2254; Kavanagh
v. Berge, 73 F.3d 733, 735 (7th Cir. 1996). In
order to merit federal habeas relief, a
petitioner must establish that the state court
proceedings resulted in a decision that was
contrary to, or involved an unreasonable
application of clearly established federal law as
determined by the United States Supreme Court. 28
U.S.C. sec.2254(d)(1). See also Lindh v. Murphy,
96 F.3d 856 (7th Cir. 1996) (en banc) rev’d on
other grounds 521 U.S. 320 (1997). Otherwise, a
petitioner must demonstrate that the state court
decision was based on an unreasonable
determination of the facts, given the evidence
presented during the state court proceedings. 28
U.S.C. sec.2254(d)(2). Where, as here, the
District Court denied habeas relief, we review
the District Court’s findings of fact under a
clearly erroneous standard and its legal
conclusions de novo. Neumann v. Jordan, 84 F.3d
985, 987 (7th Cir. 1996).

  A.    Due Process Challenge

  Due process requires that a trial court inform
the defendant of the "direct consequences" of his
plea. Brady v. United States, 397 U.S. 742, 755
(1970). Warren argues that due process was denied
him because he was not informed at the time he
entered his plea that the State would not permit
him to continue to maintain his innocence during
mandatory sex counseling sessions. He maintains
that the court’s failure to so inform him
rendered his plea unknowing and involuntary.

  Brady defines a "voluntary" plea as:

A plea of guilty entered by one fully aware of
the direct consequences, including the actual
value of any commitments made to him by the
court, prosecutor, or his own counsel, . . .
unless induced by threats (or promises to
discontinue harassment), misrepresentation
(including unfulfilled or unfulfillable
promises), or perhaps by promises that are by
their nature improper as having no proper
relationship to the prosecutor’s business (e.g.
bribes).

Id. at 755 (citation omitted). The Wisconsin
Supreme Court, analyzing Wisconsin cases,
determined that Warren’s plea met this
definition. It found that there was no coercion
or fraudulent inducement and that the trial court
did not need to inform Warren that his probation
could be revoked if he did not admit his guilt
because that consequence was only a "collateral"
consequence of his plea. 219 Wis. 615, 637-38,
579 N.W.2d 698, 708-09.

  The Wisconsin court’s finding is in accord with
federal law which also holds that a defendant is
entitled to be informed of the direct, but not
collateral, consequences of his plea. See e.g.,
United States v. Suter, 755 F.2d 523, 525 (7th
Cir. 1985). "Direct consequences are the
’immediate, and automatic consequences of the
guilty plea.’" United States v. Jordan, 870 F.2d
1310, 1317 (7th Cir. 1989) (citation omitted). The
possibility that Warren’s probation might be
revoked because he refused to admit to sexual
contact with a child does not meet this test. As
the Supreme Court of Wisconsin said, the chance
of revocation was:

(1) not definite, since some defendants who are
unwilling to admit their guilt at the plea stage
might conceivably be amenable to treatment at the
rehabilitation stage; (2) not immediate, either
in time or impact, since the revocation was
contingent upon intervening circumstances; and
(3) not automatic, since the ability to abide by
the conditions or probation was well within
Warren’s control.

219 Wis.2d at 638. Having analyzed the same
factors in its inquiry that this court would
examine to determine whether Warren’s right to
due process was violated, and having reached the
same result, we cannot say that the Wisconsin
court’s determination was "contrary to, or
involved an unreasonable application of clearly
established federal law" or was "based on an
unreasonable determination of the facts." 28
U.S.C. sec.2254(d).

  Warren takes umbrage with the court’s ruling
that the revocation of his probation for failure
to admit his guilt during counseling was a
collateral consequence. He argues alternatively
that it is a "direct" consequence according to
the Brady definition of voluntary, ("Brady
requires that a defendant be advised of the
’direct’ consequences of his plea, which are
defined as ’including the actual value of any
commitments made to him by the court, prosecutor,
or his own counsel."), and that a plea is not
voluntary unless it is made with full awareness
"of the direct consequences, including the actual
value of any commitments made to him by the
court, prosecutor, or his own counsel." Under
either formulation, the argument is based upon
the representations made to him by his counsel
before sentencing that he would be able to
maintain his innocence, which turned out to be,
according to Warren, "worthless."

  During the post-conviction hearing on Warren’s
motion to withdraw his plea, Warren’s attorney
testified that he told Warren that he would be
allowed to continue to assert his innocence after
sentencing and it was his own personal belief
that the State had implicitly promised, because
it accepted the Alford plea, that Warren could
maintain his innocence without consequence. He
also told the court that it never occurred to him
that Warren might have to admit guilt during
probationary counseling or face revocation and,
therefore, he never discussed that with Warren.

  By resting his fate solely on what he believes
are the uncontradicted assurances of his counsel,
Warren glosses over several other important
facts. First, at the time he entered his Alford
plea, the trial court advised Warren:

In the event that the Court grants probation,
probable or very likely one item that is going to
be ordered is counseling, and you will be
expected to enter into good faith counseling as
part of the term of probation, and that carries
with it--I realize that you, by making your plea
of no contest, are not admitting anything in
court, but you still would have an obligation to
enter into counseling in good faith with the
counselor, psychiatrist, or doctor, whoever, so
that’s something you should realize.

And, second, at the sentencing hearing, the trial
court ordered that Warren attend any counseling
sessions ordered by the department and "that he
follow all the recommendations that any study or
counselor comes up with." Although these are not
definite statements by the court that Warren
would have to acknowledge responsibility for his
conduct during counseling, we believe that these
statements, combined with the fact that Warren
was counseled at the sentencing hearing by a
psychiatrist who specialized in sex counseling,
should have alerted him that the possibility
existed. Furthermore, Warren was repeatedly
advised by his probation officers that his
refusal to acknowledge inappropriate sexual
contact with a child during therapy might lead to
revocation.

  Considering all of this other evidence, we
cannot agree with Warren that he had no
information contrary to his attorney’s
representations. For the reasons stated above,
even if we consider the attorney’s advice as a
component of what makes up a "direct" consequence
(which we do not), we believe that the
possibility of probation revocation for failure
to admit guilt during mandatory counseling is a
collateral consequence of which Warren need not
be informed. And, even after considering his
attorney’s statements to him as a component of
the Brady definition of voluntary, we believe the
Wisconsin Supreme Court correctly concluded that
Warren’s plea was knowing and voluntary. As its
decision was a correct application of the legal
principles established in Brady, we find that
Warren is not entitled to the habeas relief he
seeks. The judgment of the District Court,
denying the petition for a writ of habeas corpus,
is therefore affirmed.


 B.   Breach Of The Plea Agreement

  When "a plea rests in any significant degree on
a promise or agreement of the prosecutor, so that
it can be said to be part of the inducement or
consideration, such promise must be fulfilled."
Santobello v. New York, 404 U.S. 257, 262 (1971).
Warren believes that the State breached the
Alford plea agreement by imprisoning him for
refusing to admit his guilt during counseling.
However, as his argument rests merely upon his
own subjective belief and the post-conviction
testimony of his trial lawyer, and not upon any
action or representation of the prosecutor or the
court, his argument is unpersuasive.

  If a prosecutor breaches an explicit promise of
an executed plea agreement, the defendant’s plea
cannot stand because it was entered on a false
premise. Mabry v. Johnson, 467 U.S. 504, 509
(1984). There is, however, nothing in the record
before us which suggests that the prosecutor or
the court promised Warren that he would not have
to admit guilt at the counseling sessions which
were ordered as a condition of probation. The
evidence shows that the prosecutor agreed to
recommend probation and he did so at the
sentencing hearing. There was, then, no breach of
an explicit promise.

 Warren argues that the prosecutor impliedly
promised, by agreeing to let him enter an Alford
plea, that he would be allowed to continue
asserting his innocence and that the court, by
accepting the plea, promised the same. As the
Wisconsin Supreme Court said, "Warren’s argument
is based upon the faulty premise that an Alford
plea is a promise that a defendant will never
have to admit his guilt." 219 Wis.2d at 644. We
agree, but note that the Supreme Court has never
addressed the issue. Therefore, Warren has not
met his burden under 28 U.S.C. sec.2254 of
showing that the state court’s judgment is
contrary to or involves an unreasonable
application of federal law as defined by a
decision of the United States Supreme Court. The
judgment of the District Court, denying the
petition for habeas corpus, is therefore
affirmed.
III. CONCLUSION

  Warren believes that the acceptance of an
Alford plea is an assurance that a defendant will
not have to admit guilt during either conviction
or punishment. He is wrong. He can maintain his
innocence at the drug store, the grocery store
and any other public place he desires. But, when
in the private setting of sex offender counseling
that is ordered as a condition of probation, and
his admission is necessary for rehabilitation, he
must admit responsibility for his conduct. We do
not worry that our ruling will force insincere
admissions of guilt from defendants during
counseling as there are trained counselors
evaluating the admissions and they will be able
to differentiate between the sincere and the
insincere. Nor do we believe that our ruling
forces innocent defendants to confess to crimes
they did not commit, as there must be a
sufficient indication of the defendant’s guilt
before an Alford plea is accepted. We believe
that here, Warren got the bargain to which he
agreed.

  For the foregoing reasons, the judgment of the
District Court is affirmed.

AFFIRMED.



/1 An Alford plea allows the defendant to enter a
guilty plea while maintaining his innocence, a
practice approved by the Supreme Court in North
Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27
L.Ed.2d 162 (1970).
