Thе defendant, Donald Carter, appeals an order of the Superior Court (Smukler, J.) denying his motion for modification of sentence. We affirm.
The relevant facts follow. In April 1996, the trial court sentenced the defendant to seven and one-half to fifteen years in the State Prison for aggravated felonious sexual assault. The court deferred the sentence for two years, ordering the defendant to undergo sex offender treatment during this period. In July 1998, the court imposed the deferred sentence, adding that the defendant could petition the court for suspension of the balance of the minimum sentence if he successfully completed the sexual offender program (SOP) while incаrcerated.
In November 1998, the director of the SOI] Lance Messenger, conducted an evaluation of the defendant for admission into the SOP Admission is conditioned upon thrеe broad criteria: (1) the offender needs to accept'full responsibility for all of his offending behavior; (2) he needs to recognize that he has a serious problem; and (3) he must be committed and motivated in working to change his behavior. During his evaluation, the defendant admitted to the sexual abuse for which he was charged. He did not, however, admit to allegations that he had sexually abused his daughter, an allegation for which the
After serving only one and one-half years, the defendant filed a motion for modification of his sentencе, requesting that the court allow him to petition for a reduction of his minimum sentence. He argued that because he was denied admission to the SOP he was precluded from petitioning for a sentence reduction upon successful completion of the SOP. The court denied his motion and this appeal followed. On appeal, the defendant argues that requiring him to admit to offenses that could subject him to criminal prosecution as a prerequisite to admission to the SOP, without immunity, violates his right against compelled self-incrimination as prohibited by the Fifth Amendment to the United States Constitution.
Initially, we must establish the framework for our analysis. Although the defendant asserted a State constitutionаl claim in the trial court, and further relies upon New Hampshire case law in his brief, see Knowles v. Warden, N.H. State Prison,
“The Fifth Amendment protects against compelled self-incrimination.” Ohio Adult Parole Authority v. Woodard,
nоt only permits [the defendant] to refuse to testify against himself at a criminal trial in which he is a defendant, but also privileges him not to answer official questions put to him in any other рroceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.
Minnesota v. Murphy,
Here, because the SOP is a voluntary program, the defendant is not being compelled to incriminate himself: he may choose not to participate and thus not admit any guilt. See Knowles,
The defendant, however, asserts that requiring disclosure of all prior sexual offenses presents him with the choice to either incriminate himself or suffer the substantial penalty of foregoing his right to seek a suspension of thе balance of the minimum portion of his sentence. He further contends that by invoking his privilege against self-incrimination, he also suffers the penalties, of a higher custody status and restricted program options. Thus, he argues that such a Hobson’s choice violates his right against compelled self-incrimination as protected by the Fifth Amendment. We disаgree.
The defendant did not suffer any additional penalties as a result of his refusal to admit the allegations of sexual abuse against his daughter; he is merely required to serve the term of imprisonment imposed by the court. The defendant has no automatic right to early release from his sentence. See Greenholtz v. Nebraska Penal Inmates,
The defendant contends that this case is distinguishable from Knowles. In Knowles, a prisoner argued that requiring him to participatе in the SOP as a condition to parole eligibility violated his right against compelled self-incrimination because admission into the SOP required him to admit guilt for the crimes for which he wаs convicted. Id. at 388-89. We held that such a requirement did not violate the prisoner’s right against compelled self-incrimination under either the State or Federal Constitutions. Id. at 391. Here, the defendant argues that this case is distinguishable because his admission into the SOP would require him to admit to all of his offending behavior, including behavior for which he has' not yet beеn prosecuted or convicted. This, however, is a distinction without a difference. Regardless of whether the defendant has been prose
Further, the defendant’s argumеnt that he suffered higher custody status and reduced program opportunities as penalties for exercising his right against self-incrimination is unavailing. Like the opportunity to earn early release, custody status and programming opportunities are benefits to which the defendant is not automatically entitled. See Meachum v. Fano,
The defendant cites Lile v. McKune,
The SOP director testified that, generally, inmates who do not participate in the SOP are not classified below the C-3 custody status, thus resulting in a more restrictive еnvironment during their incarceration, but that “there have been exceptions to that. Classification can override recommendations and actually classify somеone C-2 if they see fit . . . .” The SOP director also testified that custody status may affect an inmate’s ability to participate in certain programs. However, there was no еvidence presented that the defendant’s custody status was changed or that he was denied access to certain programs. Moreover, as noted above, custody status and the resulting accompanying privileges are benefits to which the defendant is not automatically entitled, and the hope that the defendant might receive such benefits is not sufficient to establish a Fifth Amendment violation.
Affirmed.