Appeal from Calhoun Circuit Court (CC-00-414.71)
Patrick Sims appeals the revocation of his probation. It appears that, in 2001, Sims was convicted of first-degree robbery and was sentenced to 20 years in prison. That sentence was split, and Sims was ordered to serve five years in prison followed by probation. While on probation, Sims was arrested for breaking and entering a motor vehicle. It further appears that a probation delinquency report was filed based on that arrest and based on Sims's changing his residence without the consent of his probation officer; however, a copy of the delinquency report is not contained in the record.
Facts and Procedural History
A probation-revocation hearing was held on October 29, 2014. Sims represented himself at the hearing.
The only witness presented by the State at the hearing was Christopher Grear, a police officer for the Anniston Police Department. Officer Grear testified that he investigated the complaint of the breaking and entering of a motor vehicle that occurred in the parking lot of a Dollar General discount store in May 2014. Officer Grear reviewed surveillance video from the Dollar General store. On that video, Officer Grear observed a black male wearing a dark work uniform park his white Chevrolet Lumina automobile next to the victim's vehicle, enter the Dollar General store, return to his vehicle, reach through the window of the victim's vehicle, pull a purse out of the victim's vehicle, and then leave in his vehicle. Officer Grear also observed that the Lumina was missing some paint. On June 17, 2014, Officer Grear happened to see the Lumina he had seen in the surveillance video. Officer Grear ran the Lumina's license-plate number and discovered that the vehicle belonged to Sims. At that time, Officer Grear spoke with Sims, who happened to be wearing the same work uniform that Officer Grear had seen the suspect wearing in the video. Officer Grear identified Sims as the person he saw in the video taking the purse from the victim's vehicle.
Sims called Sheronica McGuire, his probation officer, to testify at the hearing. On cross-examination, McGuire testified:
"On June 25th I spoke with Detective Wade and he told me that he was, in fact, looking or attempting to locate Mr. Sims. He stated that Mr. Sims' stepmother told him that he –- Mr. Sims no longer lived at the address he provided the probation office, which was on 20 Queens Drive, but instead he stayed in Alexandria."
Laconya Bowers, Sims's stepmother, testified that some officers visited her house and asked her whether Sims lived in the house. Bowers responded: "[Y]es, he lives here but he's not here now, he's at work." (R. 36.)
At the conclusion of the revocation hearing, the circuit court did not make any oral findings. On November 4, 2014, the circuit court issued the following written order:
"Revocation hearing was held October 29, 2014. Defendant present pro se. State represented by Chief Assistant District Attorney Lynn Hammond.
"Upon consideration of the evidence presented by the State, the Court finds [Patrick Sims] to be in violation of the following probation condition(s) and the Court is reasonably satisfied from the evidence that a violation of the conditions or regulations of probation occurred:
"1. Charged with new offense -- Breaking and Entering a Motor Vehicle
"2. Change of residence without the consent of the Probation Officer
"The Court hereby REVOKES [Sims's] probation based on the finding that [Sims], while on probation, violated the above probation condition(s) and sentences the probationer to:
"Serve his remaining sentence with a total of 104 days jail credit as of November 4, 2014 (credit to be given by [the Department of Corrections] for the 2 splits previously served)."
After his probation was revoked, Sims filed a "motion for reconsideration of probation revocation." (C. 7.) In that motion, Sims argued that the circuit court's revocation order was inadequate, that the circuit court's finding that he had been charged with a new offense was an insufficient basis on which to revoke his probation, that the evidence was insufficient to support the revocation of his probation, and that the circuit court failed to advise of him of his right to counsel. The circuit court denied Sims's motion.
On appeal, Sims argues, among other things, that the grounds for revoking his probation were insufficient. According to Sims, the circuit court's finding that he changed his residence without the consent of his probation officer was improper because it was based entirely on hearsay evidence. Further, Sims argues that the circuit court's other basis for the revocation of his probation –- that he had been "charged with [a] new offense" –- was improper because merely being charged with a new offense is an insufficient ground for probation revocation.
"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Rule 801(c), Ala. R. Evid. "'[I]t is well settled that hearsay evidence may not form the sole basis for revoking an individual's probation.'" Sams v. State, 48 So.3d 665, 668 (Ala. 2010) (quoting Goodgain v. State, 755 So.2d 591, 592 (Ala.Crim.App.1999)). This rule arises from due-process considerations and from a concern that "'[t]he use of hearsay as the sole means of proving a violation of a condition of probation denies a probationer the right to confront and to cross-examine the persons originating the information that forms the basis of the revocation.'" Id.
In the present case, the only evidence that Sims changed his residence without the consent of his probation officer was the following testimony of his probation officer:
"I spoke with Detective Wade and he told me that he was, in fact, looking or attempting to locate Mr. Sims. He stated that Mr. Sims' stepmother told him that he –- Mr. Sims no longer lived at the address he provided the probation office, which was on 20 Queens Drive, but instead he stayed in Alexandria."
Clearly, the probation officer's testimony regarding Detective Wade's out-of-court statements about Sims changing his residence was hearsay. Because that testimony was the only evidence indicating that Sims had changed his residence, hearsay formed the sole basis for the circuit court's finding that Sims changed his residence without the consent of his probation officer. Therefore, ...