Appeal
from Escambia Circuit Court (CC-17-458.72)
MINOR,
JUDGE.
Catrina
Renee Faircloth appeals from the circuit court's
revocation of her sentence to community corrections. We
consider whether there was sufficient evidence for the
circuit court to revoke Faircloth's sentence to community
corrections, and, if so, whether the circuit court's
imposition of a three-year split sentence and a five-year
probationary period exceeded the restrictions of §
15-18-8(b), Ala. Code 1975, the Split-Sentence
Act.[1]
For the reasons discussed below, we conclude that there was
sufficient evidence to revoke Faircloth's sentence to
community corrections but that the split sentence and
probationary term imposed by the circuit court following that
revocation exceeded that allowed by § 15-18-8(b).
Faircloth
pleaded guilty to obstruction of justice, a Class C felony,
and, on July 2, 2018, she was sentenced as a habitual felony
offender to 15 years in the custody of the State Department
of Corrections ("DOC"), split to serve 2 years in
community corrections followed by 5 years of probation. On
February 1, 2019, Faircloth's probation officer filed a
petition to revoke Faircloth's community-corrections
sentence, alleging that Faircloth had violated the conditions
of community corrections by committing the new offenses of
unlawful possession of drug paraphernalia and having an
automobile tag on her vehicle that belonged to another
vehicle.[2] A revocation hearing was held on April 24,
2019. The State presented the testimony of two witnesses.
Officer
Derrick Hodges testified that on January 27, 2019, he was
employed as a police officer with the East Brewton Police
Department when he saw Faircloth driving a vehicle. Officer
Hodges "made eye contact" with Faircloth because,
he said, "she has been warned several times to quit
driving without a license." (R. 7.) Officer Hodges
"ran the tag" on the vehicle Faircloth was driving
and when it came back as a tag belonging to a vehicle other
than the one she was driving, Officer Hodges initiated a
traffic stop.
Officer
Hodges testified that when he stopped Faircloth's
vehicle, Faircloth was alone. Officer Hodges testified that
he asked Faircloth why she was driving, and she told him that
she did not have a driver's license but that the vehicle
belonged to her father. Officer Hodges testified that he
asked Faircloth if there was anything illegal in the vehicle,
and Faircloth told him that she was on community corrections
and that she "can't mess up." Officer Hodges
asked Faircloth if he could search the vehicle, and Faircloth
agreed. Officer Hodges searched the vehicle and found "a
digital scale used to weigh drugs" in the center console
of the vehicle. (R. 9, 11.) Officer Hodges testified that
there was a "white residue" on top of the scales.
(R. 11.) Officer Hodges did not field-test the scales or the
white residue, but he testified that he is familiar with
digital scales and that they are commonly used to weigh
drugs. Faircloth told Officer Hodges that the scales belonged
to her boyfriend, who had been in possession of the vehicle
before her, and that her boyfriend would admit that the
scales belonged to him. Officer Hodges arrested Faircloth for
possession of drug paraphernalia and gave her a citation for
having a switched tag. Officer Hodges testified that
Faircloth's boyfriend tried to come forward and take the
blame for the scales but that "he was incarcerated in
the jail and I don't talk to inmates." (R. 10.)
Matthew
Rabren, the director of the Escambia County community
corrections program, testified that one of the conditions of
Faircloth's sentence to community corrections was that
she not be the subject of any new charges. He testified that
the new charges that had been brought against Faircloth
represented Faircloth's third community-corrections
violation.
Faircloth
testified in her own defense at the revocation hearing. She
testified that she was driving her father's vehicle and
that her father had not yet switched the tag. Faircloth
testified that the digital scales found in the vehicle
belonged to her boyfriend, Michael Lawrence, who was, she
admitted, selling drugs, and that she did not know that the
scales were in the vehicle. Faircloth testified that, when
she went to court regarding the drug-paraphernalia charge,
that charge was dismissed. Faircloth admitted that she had
previously been convicted of possession of a controlled
substance.
Following
the hearing the circuit court, having heard the evidence,
stated: "I hereby adjudge, adjudicate and find that Ms.
Faircloth did violate community corrections by unlawfully
possessing drug paraphernalia and driving a vehicle with a
switched tag." (R. 23.) The circuit court then entered a
written revocation order summarizing each witness's
testimony and detailing the evidence supporting a finding
that Faircloth had violated her community-corrections
sentence. The circuit court revoked Faircloth's sentence
to community corrections and ordered as follows:
"After hearing all of the testimony and evidence, and
the court being reasonably satisfied that defendant has
violated community corrections in this case, it is,
therefore, ordered and adjudged that the defendant has
violated community corrections in this case. It is therefore
ordered and adjudged that the defendant is hereby resentenced
to one-hundred eighty (180) months in the custody of the
Department of Corrections. The 180 month sentence is
suspended, and, under the Split Sentence Act to serve
thirty-six (36) months in the Department of Corrections and
the balance of sixty (60) months on state probation. The
defendant shall be given credit for time served as allowed by
Alabama law."
(C. 19.) This appeal followed.
Faircloth
raises two issues on appeal: Whether the State presented
sufficient evidence regarding the allegation of unlawful
possession of drug paraphernalia and whether the three-year
split sentence and the five-year probationary period imposed
upon her at the time of the revocation were allowable under
§ 15-18-8(b), Ala. Code 1975. We address each of those
issues below.
I.
Faircloth
argues that there was insufficient evidence presented at the
hearing upon which to revoke her sentence to community
corrections. She argues that the State failed to show that
the digital scales that were found in the vehicle that
Faircloth was driving were drug paraphernalia because, she
says, the ...