Appeal from DeKalb Circuit Court (CC-05-412.70)
Carless Ledon Wagner appeals the revocation of his probation. He had pleaded guilty to first-degree rape and first-degree burglary and had been sentenced to concurrent terms of 20 years. These sentences were split, and he was ordered to serve 5 years followed by 5 years' probation.
On March 20, 2014, a delinquency report was filed by Wagner's probation officer, charging him with violating the terms of his probation by failing to avoid injurious or vicious habits and by failing to avoid persons of disreputable or harmful character. On April 11, 2014, Wagner appeared before the court and was appointed counsel; a revocation hearing was set. Counsel thereafter withdrew, and another attorney was appointed to represent Wagner.
A hearing was held on May 29, 2014. The court read the charges and the summary of the details stated in the probation officer's report. After each charge, the court asked whether Wagner admitted or denied the charge. His counsel admitted both charges. The court then asked Wagner if he had any evidence to present. Defense counsel argued that Wagner had been in compliance with the terms of his probation for 2 years and 11 days until "this hiccup." (R. 5.) The court asked if Wagner wanted to present any witnesses, and he responded negatively. The prosecutor then argued that he remembered the original case and that he felt that, because the underlying charge was rape, Wagner's probation should be revoked. Defense counsel argued that because Wagner had been in jail for 48 days based on a failure to appear and because he had maintained his terms of probation for 2 years and 11 days and had not been accused of any new crimes, Wagner should remain on probation. The court responded:
"I'll tell you my problem, [defense counsel]. My problem is that this is a underlying charge of Rape in the First Degree, which is one of the most violent crimes that
-- other than murder and those type things that we deal with.
"Mr. Wagner, from looking at his history, served a five-year day-for-day split and now has been caught on methamphetamine, which is a very serious drug. And when you look at the facts, it appears that they were either cooking it or at least using it in his back yard.
"I am going to revoke the remainder of your probation and order you to serve the remainder of your sentence in the custody of the Department of Corrections."
Thereafter, the circuit court entered a written order, stating in pertinent part:
"The State of Alabama filed this petition to revoke because on or about March 19, 2014 Probation Officer Jonathan Phillips conducted a visit to Mr. Wagner's home. Officer Phillips noted that [Wagner] 'was acting suspicious when he exited a small building that had a camera at the front door.' The only other person at the residence with Mr. Wagner was another convicted felon Jody Daniel Phillips. Mr. Wagner was sent for a drug screen and tested positive for methamphetamine. At the hearing, Mr. Wagner admitted to the charges contained in the State's petition."
(C. 24.) The court found, "[a]fter considering the original charges, reviewing the pleadings filed, conducting a hearing, considering the arguments advanced at the hearing, and applying the law to the facts, " that Wagner's probation should be revoked. (C. 24.)
Wagner filed a motion for a new trial, arguing that he was not afforded a hearing in compliance with § 15-24-54, Ala. Code 1975, and Rule 27.6, Ala. R. Crim. P. Moreover, he argued that the court's order improperly reflected that Wagner had admitted his charges, because the court failed to comply with requirements of Rule 27.6(c) for accepting a probationer's admission. Further, Wagner argued generally that his counsel was ineffective. The court denied the motion.
On appeal, Wagner argues that he was denied his right to due process because the court failed to conduct a hearing as required by Rule 27.6, Ala. R. Crim. P. and § 15-24-54, Ala. Code 1975. He further argues that the court erred by finding that he admitted the charges without having complied with the requirements of Rule 27.6(c), Ala. R. Crim. P. Wagner also alleges that his counsel was ineffective because he did not object to the failure of the court to hold a hearing or ...