Opinion
CR-20-0196
04-23-2021
Terry Wayne GANN v. STATE of Alabama
Lisa M. Ivey of Stubbs, Sills & Frye, P.C., Anniston, for appellant. Steve Marshall, att'y gen., and Yvonne A.H. Saxon, asst. att'y gen., for appellee.
Lisa M. Ivey of Stubbs, Sills & Frye, P.C., Anniston, for appellant.
Steve Marshall, att'y gen., and Yvonne A.H. Saxon, asst. att'y gen., for appellee.
WINDOM, Presiding Judge.
Terry Wayne Gann appeals the Marion Circuit Court's order revoking his community-corrections sentence.
The record indicates that on August 21, 2020, Gann was convicted of the unlawful possession of a controlled substance, see § 13A-12-212, Ala. Code 1975, and was sentenced to five years in prison. The circuit court split that sentence and ordered that Gann serve 18 months in community corrections followed by 3 years on probation in community corrections.
On October 28, 2020, Gann's community-corrections officer issued a delinquency report, alleging that Gann had violated the terms and conditions of community corrections by receiving a new charge of domestic violence-assault on October 25, 2020, by failing a drug test on October 26, 2020, and by failing to pay community-corrections fees. In setting forth the basis of the domestic-violence charge, the delinquency report stated that a police officer was dispatched to a residence and that, when he arrived, he was met by Gann's seven year-old son, Jordan, who told the officer that his parents were in the bedroom fighting. The officer could hear the couple yelling at each other, and he called for them to exit the bedroom. Gann exited and told the officer that his son had attacked him with a bat and had bit him. Stacey Meadows, the mother of Gann's child, told the officer that the argument was only verbal. The officer spoke with Jordan, who admitted that he did hit his father with a bat; however, Jordan stated that he did so only because he did not want his father to hit his mother. The officer then returned to Meadows, who admitted that Gann had pushed her in the chest. Meadows provided the following written statement: "Terry was laying on the couch, Jordan threw the phone into Terry's lap. He then woke up mad and said ‘don't throw the phone.’ He got up and went into the kitchen and Jordan got out a bat, after me and Terry were arguing about Terry being ill, Jordan hit Terry with the bat several times while Terry was trying to put him in his room." (C. 6-7.)
On November 5, 2020, Gann, along with counsel, appeared before the circuit court for a hearing at which the following colloquy occurred:
The hearing was conducted virtually due to the COVID-19 pandemic and the resulting restrictions regarding in-person hearings.
"THE COURT: Have you had an opportunity to review your report with your attorney?
"THE DEFENDANT: Yes, sir.
"THE COURT: Do you understand the violations of your probation that are alleged against you?
"THE DEFENDANT: Yes, sir.
"THE COURT: Are there any additions or corrections to the report that you would like the Court to consider other than the ones that you had mentioned at the very beginning?
"THE DEFENDANT: The domestic assault was supposed to be domestic harassment because it was all just verbal.
"THE COURT: Okay, all right, then I will note that for the record then. Are there any other additions or corrections?
"THE DEFENDANT: No, sir.
"THE COURT: Does the probationer request a formal hearing on these allegations?
"THE DEFENDANT: I – I mean I'd like to tell you what went on.
"THE COURT: You can tell me what went on; however, if the point is you want witnesses called and have Mr. Hall question witnesses, then what we will have to do is this: That's not something we can do today, we will have to reset it at another date for a formal hearing then that way the D.A.'s office can have their witnesses present, Mr. Hall can call whatever witnesses he needs to call, so we can do that. It's your call though.
"THE DEFENDANT: Do we need to have Stacey present about the allegations the police made, Jarrod?
"[Counsel]: Terry, it's your decision. I would advise you to just getting the new offense charge would be enough, if the judge chose to revoke your probation, the hearing really wouldn't change that. We would have to fight the offense in court, but the hearing for that would be the time to do it. What I'm trying to tell you, you can request a hearing, but it will not likely change or have any effect on what happens today.
"THE DEFENDANT: Yes, sir, all right.
"Judge, I would just like to give you my half of what happened.
"THE COURT: All right, so you do not want a formal hearing; is that correct?
"THE DEFENDANT: No, sir, because if we got to court she will show up on that part.
"THE COURT: Okay, all right. So let me ask you this – and Mr. Hall, you may want to step in because I realize we may be treading a fine line since he hasn't gone to court on these new cases – when we get to the violations in the report that you were arrested for a domestic violence offense and that there was a failed drug test on June 26, ‘20, where you tested positive for amphetamines and Suboxone.
"THE DEFENDANT: Yes, sir, that come in at the county, after I got here.
"THE COURT: Right, but do you also admit that you were arrested for a domestic violence charge on October the 25th as well?
"THE DEFENDANT: Yes, sir.
"THE COURT: Okay. Has anybody forced or threatened you to admit to that?
"THE DEFENDANT: No, sir.
"THE COURT: Based on the allegations found in the report, admitted to be correct by the probationer, the Court finds to a reasonable satisfaction that the probationer has violated the terms and conditions of his Community Corrections sentence by failing a drug test and receiving a new domestic violence charge.
"Now do you have anything to say before sentence is imposed? This will be the time for you to tell me –
"THE DEFENDANT: Yes, sir. I would like to apologize to the Court, but the accusations made isn't true.
"What happens this day is I was tired, you know. I resumed a 50-hour-plus-a-week job. [My community-corrections officer] can probably verify that for you, Judge. I was – It was Sunday. I had been redoing an apartment for Stacey. I was tired and laying on the couch. Jordan come in and he's – the mental health part has come in. I took that upon – up on my own, sir, trying to help his – I've been his assistant football coach, you know, trying to rebuild a relationship. He's got anger, man, because I was took out of his life for so long because of my past behaviors. And I went to get on to him, and like Stacey said there, you know, it got the bad out. You know, he feels like – Me and Stacey can say the least little small thing to one another, you know, and he gets very violent and offensive, you know, and so that's why I try to go to extents [sic] of more than, you know, you know, to help my family instead of just me too.
"Like all we was doing was arguing and what we was arguing about, I couldn't find my phone, so she doesn't think it was – I been trying to go and get legal help for him, you know, to help with him, but she doesn't think that's
right. So what we was arguing when he said in the report, There's no marks on you, she was talking about he didn't really touch me, he hit me, she didn't see that part, but she saw him hit me with a bat, you know, hitting me with that bat, so that's what all of that is about.
"I just ask you, Judge, I mean, I messed up when I come to jail. I felt weak, that was something in the back. Please just don't send me down the road for this long haul because I'm doing everything I can to rebuild this relationship. I could be like some fathers and walk away from it, you know, but I'm not, I mean I'm putting myself in jeopardy trying to rebuild this.
"[My community-corrections officer] can tell you, I mean, I believe my boss will talk to her. I done an outstanding job as an employee. If you could just punish me, man, with maybe a violation of a technical or something. I mean, please don't send me back down the road for the long haul. Let me finish on trying to rebuild this relationship.
"THE COURT: Okay. Upon consideration of the foregoing, the Court finds that confinement is necessary to protect the public from further criminal activity by the probationer and that no measure short of confinement will avoid depreciating the seriousness of the claimed violation.
"It is ordered and adjudged the probationer has violated the conditions of probation as stated in Exhibit R1 and the ... Community Corrections’ sentence that the probationer is serving, custody of the probationer is transferred to the Alabama Department of Corrections for him to serve the balance of the 18-month sentence on CC-20-128."
(R. 4-11.)
On December 7, 2020, the circuit court entered an order revoking Gann's community-corrections sentence and ordering him to serve the balance of the split sentence in the custody of the Department of Corrections. The order states, in pertinent part:
"[I]t is ordered that the defendant has violated the conditions of Community Corrections in that there is reasonable cause to believe that defendant has committed the offense of Assault-Domestic (New Offense), Failed Drug Test on October 26, 2020, and Failure to Pay Community Corrections Fees. The factual basis for this Court's ruling is contained in the attached Exhibit R-1 [(the delinquency report)]."
(C. 4.) On December 17, 2020, Gann filed a motion to reconsider revocation, or, in the alternative, a motion for a new hearing. The circuit court denied the motion. This appeal follows.
Gann was also serving two other sentences in community corrections following misdemeanor convictions in the district court. Those sentences were also revoked; however, Gann's appeal pertains only to the conviction in circuit court – possession of a controlled substance.
On appeal, Gann contends that the circuit court's order revoking his community-corrections sentence must be reversed because, he says, the hearing held on November 5, 2020, did not constitute a revocation hearing. Gann claims that he did not waive his right to a revocation hearing because he did not admit to committing a new offense. In support of his claim, Gann relies on this Court's recent decision in Williford v. State, 329 So. 3d 86 (Ala. Crim. App. 2020). In Williford, the appellant raised the same argument Gann raises here – that an adequate revocation hearing was not held. After concluding that a revocation hearing did not occur, this Court addressed whether Williford had waived her right to a revocation hearing:
Although Williford involved the revocation of probation, "the revocation of a sentence served under a community-corrections program is treated the same as a probation revocation." Ex parte Hill, 71 So. 3d 3, 8 (Ala. 2009).
"In considering whether Williford waived her right to a revocation hearing, we initially note that Williford twice indicated at the January 9, 2020, hearing that she did not desire a ‘formal hearing,’ which can only be construed as an attempt to waive her right to a revocation hearing. However, it requires more than a probationer's expression of his or her desire to forgo a revocation hearing and proceed to revoke a probationer's probation. As noted above, a probationer may waive the right to a revocation hearing only ‘if he is given "sufficient prior notice of the charges and sufficient notice of the evidence to be relied upon" and if he "admits, under the requirements of Rule 27.6(c), [Ala. R. Crim. P.,] that he committed the alleged violation." ’ Ex parte Anderson, 999 So. 2d [575] at 577 [(Ala. 2008)] (quoting Rule 27.5(b))(emphasis added). See also Committee Comments to Rule 27.6, Ala. R. Crim. P. (noting that "Rule 27.5(b) allows the probationer to waive a revocation hearing within carefully defined limits" (emphasis added)). Thus, the mere fact that Williford expressed her desire to forgo a revocation hearing does not necessarily indicate that such a hearing was not required. Rather, the record must reflect that Williford was given sufficient notice of the charges and evidence against her and that she admitted to a violation of the conditions of her probation.
"Here, Williford argues that she did not waive her right to a revocation hearing because, she says, she did not admit to a violation of the conditions of her probation. We agree. As evidenced by the colloquy quoted above, the circuit court asked Williford if she admitted that she had been arrested for new charges of unlawful possession of a controlled substance and that she had absconded. However, although Williford admitted that she had been arrested for the unlawful-possession charges, she expressly denied that she had committed those offenses, arguing that she ‘ha[s] a defense’ to the charges. In addition, Williford did not admit that she had absconded but, instead, claimed that she had not reported to her probation officer because she had not been informed of any reporting requirements and that she ‘didn't know [the State was] looking for [her].’ That is to say, rather than admitting that she had absconded, Williford attempted to explain why her failure to report did not constitute absconding. Thus, Williford admitted to nothing more than that she had been arrested for the new unlawful-possession charges, and, as Williford notes, this Court has held that ‘ "a ‘mere arrest’ or the filing of charges in themselves [are] insufficient grounds for the revocation of probation." ’ Allen v. State, 644 So. 2d 45, 46 (Ala. Crim. App. 1994) (quoting Smith v. State, 445 So. 2d 573, 575 (Ala. Crim. App. 1984), quoting in turn Free v. State, 392 So. 2d 857, 859 (Ala. Crim. App. 1980) ). That is not to say that a probationer must be convicted of a criminal offense before the charges stemming from that offense can serve as the basis for the revocation of probation. To the contrary, just as it is clear that an arrest in and of itself is not a sufficient basis for the revocation of probation, ‘ "it
is equally clear that no final conviction of a probationer on the offense charged is required before his probation may be revoked." ’ Allen, 644 So. 2d at 46 (quoting Smith, 445 So. 2d at 575 ). Rather, ‘ "[a]ll that is required of the trial judge in a probation revocation hearing is that the court be reasonably satisfied therefrom of the truth of the charge." ’ Id. However, if a probationer does not admit to the truth of a charge alleging that he or she committed a criminal offense, the circuit court's ‘reasonable satisfaction’ that the charge is truthful must be grounded upon evidence indicating that the probationer committed the offense giving rise to the charge. See Sams v. State, 48 So. 3d 665, 669 (Ala. 2010) (noting that a probationer need not be convicted of a criminal offense for that offense to provide a basis for the revocation of probation but that there must be ‘ " ‘enough substantive evidence to reasonably satisfy’ " ’ the circuit court that the probationer committed the offense (quoting Mitchell v. State, 462 So. 2d 740, 742 (Ala. Crim. App. 1984), quoting in turn Hill v. State, 350 So. 2d 716, 718 (Ala. Crim. App. 1977) ) (emphasis added)).
"To reiterate, at the January 9, 2020, hearing, Williford admitted that she had been arrested for new charges of unlawful possession of a controlled substance, but she did not admit that the charges were truthful and, in fact, indicated that she has a defense to those charges. Similarly, Williford did not admit that she had absconded but, instead, attempted to explain that she was unaware the State was ‘looking for’ her and that her failure to report therefore did not constitute absconding. See Legendre v. State, 242 So. 3d 1028, 1030 (Ala. Crim. App. 2017) (noting that absconding requires ‘the concealment of oneself, especially in instances of evading legal process’). Thus, because all that Williford admitted was that she had been arrested, which is not a sufficient basis for the revocation of probation, Allen, 644 So. 2d at 46, the right to a revocation hearing was not waived in this case. See Rule 27.5(b)[, Ala. R. Crim. P.] (providing that a waiver of the right to a revocation hearing requires the probationer to admit that he or she committed a violation of the conditions of probation). Therefore, before revoking Williford's probation, the circuit court was required to hold an evidentiary hearing to receive evidence from which the court could be reasonably satisfied that Williford had violated the conditions of her probation, Sams, supra ; otherwise, the circuit court lacked jurisdiction to revoke Williford's probation. See Hyche v. State, 301 So. 3d 848, 850 (Ala. Crim. App. 2020) (noting that a probationer ‘may waive his or her right to a revocation hearing’ but that, ‘absent such a waiver, "the failure to conduct a revocation hearing ... is a jurisdictional defect" ’ (quoting Durry v. State, 977 So. 2d 539, 541 (Ala. Crim. App. 2007) )). Accordingly, we reverse the circuit court's order revoking Williford's probation and remand the case for that court to hold a revocation hearing. "
329 So. 3d at 92–93 (footnote omitted).
In reversing the circuit court's judgment, this Court acknowledged that Williford placed the circuit court in a difficult position; however, "if a probationer indicates a desire to waive a revocation hearing, it is incumbent upon the circuit court to ensure, before revoking probation without holding a hearing, (1) that the probationer is given sufficient notice of the charges against him or her and the evidence upon which the State intends to rely and (2) that the probationer admits, in accordance with Rule 27.6(c) [, Ala. R. Crim. P.], that he or she committed a violation of the conditions of his or her probation. Rule 27.5(b)[, Ala. R. Crim. P.]" Williford, 329 So. 3d at 93. In the present case, this Court cannot say that Gann waived his right to a formal revocation hearing. As in Williford, Gann admitted to nothing more than that he had been arrested for the new offense; he did not admit that the charge was truthful. In fact, Gann denied the charge and, in his statement to the circuit court, attempted to present a defense to the charge. Further, while not entirely clear, the record indicates that, although Gann acknowledged that the report charged that he had failed a drug test, he did not admit to having used drugs. The circuit court also found that Gann had failed to pay his community-corrections fees; however, there was no admission or testimony regarding that allegation. Thus, because there was not an admission of the truthfulness of the allegations, there was not a sufficient basis for the revocation of Gann's community-correction sentence. Therefore, the right to a revocation hearing was not waived in this case. See Rule 27.5(b), Ala. R. Crim. P. (providing that a waiver of the right to a revocation hearing requires the probationer to admit that he or she committed a violation of the conditions of probation.). The circuit court was required to hold a revocation hearing at which it could receive evidence on the allegations contained in the delinquency report.
Accordingly, this Court reverses the circuit court's order revoking Gann's community-corrections sentence and remands the case for the circuit court to hold a revocation hearing, unless Gann validly waives his right to a revocation hearing.
REVERSED AND REMANDED.
Kellum, McCool, Cole, and Minor, JJ., concur.