Allen v. State

         Appeal from Limestone Circuit Court (CC-16-752.70; CC-17-176.70; CC-17-381.70). Robert W. Baker, Judge

         Erin Atkins, Huntsville, for appellant.

         Steve Marshall, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.

          OPINION

         McCOOL, Judge.

          Bobby Joe Allen appeals from the Limestone Circuit Court’s revocation of his

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community-corrections sentence and his probation. On November 1, 2017, Allen pleaded guilty to the possession of a controlled substance in Case No. CC-17-381, to third-degree possession of a forged instrument in Case No. CC-17-176, and to first-degree theft of property in Case No. CC-16-752. Allen was sentenced to 36 months’ imprisonment, 54 months’ imprisonment, and 96 months’ imprisonment, respectively. Each sentence was split and Allen was ordered to serve 180 days in community corrections, followed by 24 months of supervised probation, for each conviction, to be served concurrently.

          On January 15, 2018, the State filed a petition to revoke Allen’s community-corrections sentences for violating the conditions of his community-corrections sentences when he was arrested for new criminal charges of second-degree assault, resisting arrest, and disorderly conduct. On February 21, 2018, the State filed a second motion to revoke Allen’s community-corrections sentences, alleging that Allen had committed the new offenses of possession of a controlled substance, possession of drug paraphernalia, and attempting to elude. A revocation hearing was set for March 7, 2018. Following a hearing on the matter, the circuit court revoked Allen’s community-corrections sentences and his probation. The circuit court entered a written revocation order on March 7, 2018.

         On March 29, 2018, Allen filed a pro se notice of appeal. On April 10, 2018, Allen, through appointed appellate counsel, filed a "Motion for New Trial," i.e., a motion for new revocation hearing, in which Allen argued that the evidence presented at the hearing was insufficient to support, to a reasonable satisfaction, the conclusion that he had violated his probation; that his community-corrections sentences and his probation had been revoked based solely on hearsay testimony; that the sentence imposed exceeds the maximum permitted by law; that a full revocation of his community-corrections sentence and his probation was unduly excessive; that the court failed to comply with the minimum due-process requirements of Rules 27.5 and 27.6, Ala. R. Crim. P., and § 15-18-175(d)(3)b., Ala. Code 1975; and that his due-process protections guaranteed under the 6th and 14th Amendments to the United States Constitution had been violated. (C. 52-53.) Allen subsequently withdrew his motion for a new trial.

          On appeal, Allen argues that the circuit court’s revocation of his community-corrections sentence and his probation was improper because, he says, the court failed to hold a meaningful hearing in violation of his due-process rights. Allen also alleges that the circuit court’s revocation was improper because, he says, the court relied solely on hearsay evidence of Allen’s alleged new offenses. The State contends that Allen waived his right to a formal hearing by admitting the violations against him and that the court’s revocation was based on sufficient evidence because Allen admitted to violating his community-corrections sentence.

          We first note that the revocation of a sentence served under a community-corrections program is generally treated the same as a revocation of probation. See § 15-18-175(d)(3)b., Ala. Code 1975; Richardson v. State, 911 So.2d 1114 (Ala.Crim.App. 2004)(treating the revocation of a community-corrections sentence as a probation revocation).

"The general rules of preservation apply in probation-revocation proceedings. Puckett v. State, 680 So.2d 980 (Ala.Crim.App. 1996). This Court has recognized three exceptions to the preservation requirement in probation-revocation proceedings: (1) that there be an adequate

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written or oral order of revocation, McCoo v. State, 921 So.2d 450 (Ala. 2005); (2) that a revocation hearing actually be held; and (3) that the trial court advise the defendant of his or her right to request an attorney. Croshon v. State, 966 So.2d 293 (Ala.Crim.App. 2007). Our Supreme Court recognized a fourth exception to the preservation requirement that allows a defendant to raise for the first time on appeal the allegation that the circuit court erred in failing to appoint counsel to represent the defendant during probation-revocation proceedings. See Ex parte Dean, 57 So.3d 169, 174 (Ala. 2010)."

Singleton v. State, 114 So.3d 868, 870 (Ala.Crim.App. 2012).

         In the instant case, Allen failed to raise his claim alleging that the proceeding held on March 7, 2018, was not a proper revocation hearing until he filed an untimely motion for a new trial. However, the claim falls within one of the exceptions to the general rules of preservation and can be raised for the first time on appeal. A similar argument was raised in D.L.B. v. State, 941 So.2d 324 (Ala Crim App. 2006). In D.L.B., the following occurred:

"A revocation hearing was scheduled for June 28, 2005; the hearing was reset for July 6, 2005. When the arresting officers did not appear for the July 6 hearing, the hearing was reset yet again, this time for July 13, 2005. A brief hearing was held on July 13, 2005. Present before the court were D.L.B. and his counsel, the prosecuting attorney, and one of the arresting officers. After hearing argument from the prosecutor and defense counsel, the circuit court revoked D.L.B.’s probation. No testimony was taken at the hearing, after the State conceded that the officer present for the hearing could not ‘actually place the drugs’ and that the other arresting officer--the one who actually found the drugs--was on vacation. The court noted that it was revoking D.L.B.’s probation based on the State’s representation. (R. 6). The court advised defense counsel: ‘Mr. Byrd, if you want to file a reconsideration and ask for a hearing, I will certainly reconsider. But as far as I am concerned, [D.L.B.] stays with the State at this point. He is in custody.’ (R. 6-7.) Defense counsel acknowledged the court’s action, stating: ‘For the record, Judge, I renew my position that you can’t do this [revoke D.L.B.’s probation] without a hearing. The State has had two tries at the hearing and they’re not going forward with the evidence, just representations.’ (R. 7.)

"The court noted in its revocation order that since beginning his probation, D.L.B. had been arrested for unlawful possession of a controlled substance and for distribution of a controlled substance. The court stated that it was ‘reasonably satisfied from said evidence that [D.L.B.] did violate the terms and conditions of his probation ...