Appeal
from Limestone Circuit Court (CC-16-752.70, CC-17-176.70,
CC-17-381.70)
McCOOL, Judge.
Bobby
Joe Allen appeals from the Limestone Circuit Court's
revocation of his 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sentences and his probation had been revoked based solely on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 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 by committing the violations set out above.'
(C. 10.) This appeal followed.
"D.L.B. argues that the circuit court erroneously
revoked his probation without first conducting a revocation
hearing. Specifically, D.L.B. argues that the July 13, 2005,
hearing, at which no witnesses testified and no evidence was
presented, is insufficient to comply with the requirements of
§ 15-22-54, Ala. Code 1975. We agree.
"In
Hollins v. State, 737 So.2d 1056, 1057
(Ala.Crim.App.1998), this Court held:
"'Section 15-22-54, Ala. Code 1975, requires a
hearing as a prerequisite to the revocation of probation.
This statutory requirement is mandatory and jurisdictional.
Story v. State, 572 So.2d 510 (Ala.Crim.App.1990).
Additionally, the appellant was denied his constitutional
right to due process by the revocation of his probation
without a hearing. The minimal due process to be accorded a
probationer before his probation can be revoked includes
written notice of the claimed violations of probation,
disclosure to the probationer of the evidence against him, an
opportunity to be heard in person and to present witnesses
and documentary evidence, the right to confront and to
cross-examine adverse witnesses, a neutral and detached
hearing body such as a traditional parole board, and a
written statement by the factfinders as to the evidence
...