Opinion
CR-21-0460
12-09-2022
Scotty Dewayne GOSA v. STATE of Alabama
Lisa M. Ivey of Stubbs, Sills & Frye, P.C., Anniston, for appellant. Steve Marshall, att’y gen., and William D. Dill, asst. att’y gen., for appellee.
Lisa M. Ivey of Stubbs, Sills & Frye, P.C., Anniston, for appellant.
Steve Marshall, att’y gen., and William D. Dill, asst. att’y gen., for appellee.
MINOR, Judge.
Scotty Dewayne Gosa appeals the Winston Circuit Court’s revocation of his probation because, he argues, the circuit court failed to conduct an adequate revocation hearing. The State, however, claims that Gosa’s argument is not properly before this Court for appellate review because he did not raise this argument in the circuit court. We hold, that Gosa’s argument is properly before this Court, and we reverse the circuit court’s judgment and remand this case to the circuit court for proceedings consistent with this opinion.
Facts and Procedural History
It appears from the limited record on appeal that in 2017 Gosa was convicted of first-degree unlawful manufacture of a controlled substance, see § 13A-12-218, Ala. Code 1975, and was sentenced to 10 years imprisonment. That sentence was split, and he was ordered to serve 2 years incarceration followed by 4 years’ supervised probation. (C. 13, 18; R 2-3.) Gosa began serving his term of probation in May 2019. (C. 18.)
In February 2022, Gosa’s probation officer moved to revoke his probation, alleging that Gosa had violated the terms of his probation by absconding, by failing to submit to treatment and monitoring, by failing to report, and by failing several drug tests. (C. 18-20.)
On February 28, 2022, Gosa, represented by counsel, appeared before the circuit court. During that appearance, the following occurred:
"The Court: Scotty Gosa. All right, Mr. Gosa, you are here with your attorney. Have you read your report?
"[Gosa]: Yes, Your Honor.
"The Court: It looks like—let me see if I can find—you got a 10-year sentence, two years imposed, eight suspended, probation for four.
"And the first charge is absconding. Absconding is more than not just reporting; they can’t find you.
"And the second charge is a technical violation, did not complete referral.
"And then three is court referral.
"Four is that you were positive on your drug tests from time to time, which indicates you’re still Using drugs.
"Is the report correct?
"[Gosa]: For the most part.
"[Gosa’s counsel]: Your Honor, he was actually in the hospital in December. And that’s what he is saying is the reason why he would not report, and he does have a note from Lakeland Hospital.
"[Gosa]: I missed six days of work, but I was sick for the whole month.
"The Court: Uh-huh.
"[Gosa]: I got a good job working for Dan Hogan.
"[Gosa’s counsel]: And he …
"The Court: All right. So, I’m looking at the report, and it looks like you didn’t report on December 7th of 21. Were you in the hospital then?
"[Gosa]: No, but I was sick.
"The Court: You were sick.
"[Gosa]: I had talked to them on the phone.
"The Court: Did you call them?
"[Gosa]: I come down there actually on the 30th of December, but they weren’t there that day.
"The Court: Okay, I’m talking about on the 7th of December?
"[Gosa]: No. Yeah, I was sick though.
"[Gosa’s counsel]: Did you call them on the 7th?
"[Gosa]: I don’t think so.
"The Court: 12/21 they tried to call you and they couldn’t get you on the phone. They mailed you a letter that same day, says they spoke with your mom on that day, left a message with her, gave her a new phone number, was also given a new phone number, they placed a call to the new number and left a message.
"Then on 12/22 it says you called the probation office and stated that you missed reporting because you were sick but was currently at work and would call back on 12/23, and you, never called back.
"Let’s see what else it says. It says you called the probation office on 12/29, spoke with Officer Morrison after you received the late reporting letter, and you were instructed to report 12/29 for a drug test, and you didn’t report then. All that true?
"[Gosa]: I was sick on them—on them—on the day that I talked to him on 12/29.
"[Gosa’s counsel]: Your Honor, he has the excuse is dated for 12/27 of ‘21, saying that he can return to work two days after that.
"The Court: One of these phone calls 12/23, you were at work, weren’t you?
"[Gosa]: But I don’t remember talking to them but one time and that was on 12/29.
"The Court: All right. What do you think, [Prosecutor]?
"[Prosecutor]: Judge, on top of the December stuff, Mr. Gosa then failed to report in January.
"The Court: Uh-huh.
"[Prosecutor]: You know, we’ve not heard anything about an excuse for January, but just failed to report then.
"[Gosa]: I got locked up.
"[Prosecutor]: I think Mr. Gosa has a history of not reporting to probation. I think there’s multiple times where they’ve had trouble getting him to come on the right dates and the right times. If the Court wishes to have a formal hearing on this, I think we’ve got all of the people we need here today and we could do that.
"The Court: All right, Mr. Gosa, [the Prosecutor’s] correct. It looks like [you] failed to report on January the 4th. Thèy talked to your mom on January the 11th to get you to report. She said she would give you the message.
"[Gosa’s counsel]: Your Honor, he was rearrested on
"What were you arrested on?
"[Gosa]: It was—first, it was child support then.
"[Gosa’ counsel]: Child support on—in January.
"The Court: What date in January?
"[Gosa]: The 12th or the 13th, somewhere around there.
"The Court: Yeah, these dates are the 4th and the 11th so that would have been before any arrests. Why don’t we take some testimony at the end of the docket.
"….
"[Gosa’s counsel]: If it’s okay, Your Honor, Mr. Gosa does not want a formal hearing. He just would just like to add to his plea to the Court that he’s never been on Community Corrections before. He had back child support.
"[Gosa]: I have kids. I have a good job. One more shot is what , I would like, please.
"[Gosa’s counsel]: He would like to be able to be, placed and to serve his sentence on Community Corrections.
"The Court: So, is the report correct, Mr. Gosa?
"[Gosa]: Yes, sir.
"The Court: Court finds to a reasonable satisfaction that the probationer has violated the conditions of probation.
…
"….
"The Court finds no measure short of confinement will avoid depreciating the claimed violation. Your probation is revoked, and you will serve with the Department of Corrections."
(R. 2-9.)
On the same day, the circuit court memorialized its decision in a written order, finding that Gosa violated the terms of his probation by committing the "technical violation" of "absconding" when Gosa "stipulate[d] to the correctness" of the delinquency report. (C. 21.) Gosa filed a pro se notice of appeal, and the circuit court appointed counsel to represent Gosa on appeal. (C. 26, 29-32.)
The circuit court based its revocation of Gosa’s probation only on the allegation of absconding and not on the remaining allegations in the delinquency report.
Discussion
Gosa argues that the circuit court erred when it revoked his probation because, he says, the court failed to hold an adequate probation revocation hearing. Gosa contends that "although it appears that [he] expressed a desire to forego a formal hearing, Gosa did not admit that he had actually absconded supervision; instead Gosa merely admitted to the accuracy of the delinquency report" (Gosa’s brief, p. 11; emphasis in original.) Thus, Gosa claims, he did not "waive his right to a revocation hearing because he did not admit that he had ‘committed a new offense’ that would constitute a probation violation." Id. In turn, Gosa argues that "the allegations in the delinquency report were insufficient" evidence of absconding and that the court received no other evidence to support the revocation of his probation. (Gosa’s brief, pp. 11-12.)
The State argues that Gosa’s argument is not properly before this Court for appellate review. The State claims: (1) that Gosa properly waived his right to a revocation hearing; (2) that Gosa "admit[ted] to the truth of the probation violation when he admitted to the accuracy of the delinquency report"; and (3) that Gosa did not object "to the report or to [the circuit] court’s ruling based on his waiver and agreement to the report." (State’s brief, p. 5.)
[1, 2] Before this Court can address the merits of Gosa’s argument, we must first determine whether his argument is properly before this Court.
" ‘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).’ "
Allen v. State, 285 So. 3d 864, 865-66 (Ala. Crim. App. 2019) (quoting Singleton v. State, 114 So. 3d 868, 870 (Ala. Crim. App. 2012)).
Although Gosa did not argue in the circuit court that the revocation hearing was inadequate, he contends that his argument falls within the exception to the preservation requirement that a revocation hearing actually be held. The State argues that Gosa’s argument amounts to (1) a challenge of whether the circuit court properly complied with Rules 27.5(b) and 27.6(c), Ala. R. Crim. P., in finding that Gosa waived his right to a revocation hearing and admitted to violating his probation, and (2) a challenge to the sufficiency of the evidence that supported the revocation of his probation. Thus, the State says, his argument does not fall within an exception to the preservation requirement. But Gosa alleged that the circuit court did not hold a formal revocation hearing, and he reiterates that, argument in his reply brief.
Rule 27.5(b) provides:
"SUMMARY DISPOSITION. The probationer may waive the probation hearing under Rule 27.6(a) and the judge of the sentencing court may make a final disposition of the issue, if:
"(1) The probationer has been given sufficient prior notice of the charges and sufficient notice of the evidence to be relied upon; and
"(2) The probationer admits, under the requirements of Ruler 27.6(c), that he committed the alleged violation."
Rule 27.6(c) provides:
"ADMISSIONS BY THE PROBATIONER. Before accepting an admission by a probationer that the probationer has violated a condition or regulation of probation or an instruction by the probation officer, the court shall address the probationer personally and shall determine that the probationer understands the following:
"(1) The nature of the violation to which an admission is offered;
"(2) The right under section (b) to be represented by counsel;
"(3) The right to testify and to present witnesses and other evidence on probationer's own behalf and to cross-examine adverse witnesses under subsection (d)(1); and
"(4) That, if the alleged violation involves a criminal offense for which the probationer has not yet been tried, the probationer may still be tried for that offense, and although the probationer may not be required to testify, that any statement made by the probationer at the present proceeding may be used against the probationer at a subsequent proceeding or trial.
"The court shall also determine that the probationer waives these rights, that the admission is voluntary and not the result of force, threats, coercion, or promises, and that there is a factual basis for the admission."
Gosa cites Williford v. State, 329 So. 3d 86 (Ala. Crim. App. 2020) and Wilkerson v. State, 372 So.3d 573 (Ala. Crim. App. 2022), in support of his position. In Wilkerson, this Court summarized the facts of Williford:
"[W]hile Williford was on probation, her probation officer filed a report alleging that she had violated the terms of her probation by absconding and by committing two new offenses. Williford, 329 So. 3d at 88. The circuit court then conducted a hearing, at which Williford was represented by counsel and at which she told the circuit court that she did not want a formal hearing on the allegations. Id. During a colloquy with the circuit court, Williford admitted that she had been arrested for the new charges and she told the circuit court that her admission was voluntary. The circuit court, based on Williford’s admission, revoked her probation because of absconding and being arrested for two new offenses. Id. at 89. Williford then told the circuit court that she did not ‘run from probation,’ that she assumed ‘that they would let her know what [she] needed to do when [she] got out,’ and that she did not know they were looking for her. Id. at 89. Without any argument from Williford, the circuit court revoked Williford’s probation, Williford appealed that decision to this Court without filing any post-hearing motions. Id.
"Williford argued for the first time on appeal that the circuit court’s hearing did not constitute a revocation hearing. The State, like it does here, argued that Williford’s claim was not preserved for appellate review. Id. at 90. This Court rejected the State’s argument, finding that ‘[b]y arguing that the … hearing did not constitute a revocation hearing, Williford is arguing that a revocation hearing did not occur. Thus, Williford may raise this claim for the first time on appeal.’ Id."
Wilkerson, 372 So.3d at 578.
Gosa argues that the "February 28, 2022, hearing did not constitute an adequate probation-revocation hearing" (Gosa’s brief, p.11), that, "the circuit court could not have revoked Gosa’s probation without a formal hearing to receive evidence" (Gosa’s brief, p. 15), and that a formal hearing was not held. (Gosa’s brief, p. 15.) So, Gosa’s argument that the hearing was not adequate and that a formal hearing was not held is an argument that the circuit court did not actually conduct a revocation hearing. Thus, Gosa’s argument is properly before this Court. See Wilkerson, 372 So.3d at 578 ("[B]y arguing that the revocation hearing was ‘inadequate’ and that it did not ‘constitute’ a revocation hearing, Wilkerson is arguing that the circuit court did not actually, conduct a revocation hearing. Thus, Wilkerson’s argument is. properly before this Court.") See also Moore v. State, 54 So. 3d 442, 443 (Ala. Crim. App. 2010) ("Moore challenges the sufficiency of the probation-revocation hearing … for the first time on appeal. However, [that] issue fall[s] within one of the three exceptions to the general preservation requirement; [it is], therefore, properly before this court for review."). We now turn to the merits of Gosa’s argument on appeal.
[3] As set out above, at Gosa’s revocation hearing, the circuit court did not receive any evidence before, it revoked Gosa’s probation.
"This Court has, on several occasions, held that the failure to receive evidence at a revocation hearing means that no meaningful revocation hearing was held. See, e.g., Williford[ v. State], 329 So. 3d [86] at 90-91 [Ala. Crim. App. 2020)] (‘[T]his Court has held that a probationer was denied the right to a revocation hearing in cases in which the probationer appeared before the circuit court for a hearing but the circuit court did not receive evidence at’ the hearing and thus revoked probation without an evidentiary basis.’); Allen [v. State], 285 So. 3d [864] at 869 [(Ala. Crim. App. 2019)] (finding that the State failed ‘to introduce any exhibits, witness testimony, or any other legal evidence during the hearing’ and, thus, that the ‘proceeding did not constitute the meaningful hearing to which Alien was entitled); and Saffold v. State, 77. So. 3d 178, 182 (Ala. Crim. App. 2011) (‘[W]e cannot say that the proceeding held on October 28, 2010, constituted a probation-revocation hearing. The prosecutor represented that Saffold had been arrested on new charges but called no witnesses to testify and presented no other evidence regarding the new charges against Saffold.’)."
Wilkerson, 372 So.3d at 578. Thus, Gosa is correct that the circuit court failed to actually conduct a revocation hearing.
"But, as this Court explained in Williford, ‘the fact that a revocation hearing did not occur does not in and of itself entitle [a person] to relief.’ 329 So. 3d at 91. Indeed, a person may waive his right to a revocation hearing if he ‘has been given sufficient prior notice of the charges and sufficient notice of the evidence to be relied upon’ and he ‘admits, under the requirements of Rule 27.6(d), [Ala. R. Crim. P.,] that he committed the alleged violation,’ Rule 27.5(b), Ala. R. Crim. P."
Wilkerson, 372 So.3d. at 579.
Here, the circuit court circumvented the requirement that a revocation hearing be held by basing its revocation on Gosa’s admission that he had violated the terms of his probation, but Gosa did not admit to the truthfulness of the allegations in the report alleging that he had violated the terms of his probation. Although Gosa, or his counsel, stated that he wished to forgo a formal revocation hearing and that the facts set out in the report were correct, Gosa did not affirm that those facts constituted an admission that he had absconded. Rather, Gosa tried to present a defense to his failure to report to his. probation officer—i.e., that he had been in the hospital, that he had been ill after leaving the hospital, and that he had been arrested and was in custody.
" ‘[B]ecause there was not an admission of the truthfulness of the allegations,
there was not a sufficient basis for the revocation of [Gosa’s probation] 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.’ "
Wilkerson, 372 So.3d at 579 (quoting Gann v. State, 337 So. 3d 1217, 1223 (Ala. Crim. App. 2021)).
Conclusion
Based on the above, we reverse the circuit court’s order revoking Gosa’s probation and remand this case for the circuit court to hold a revocation hearing, unless Gosa validly waives his right to a revocation hearing.
REVERSED AND REMANDED.
Windom, P.J., and Kellum, J., concur. McCool, J., dissents, with opinion, which Cole, J., joins.
McCOOL, Judge, dissenting.
I respectfully dissent from this Court’s reversal of the circuit court’s order revoking Scotty Dewayne Gosa’s probation. I believe that, looking at the hearing as a whole, Gosa clearly admitted that he had committed the alleged violation and that he validly waived his right to a revocation hearing. Thus, the circuit court’s judgment should be affirmed.
The main opinion correctly sets forth the colloquy between the trial court, Gosa, and Gosa’s counsel at the hearing. Initially, Gosa gave several excuses for his failure to report. After listening to those excuses, the trial court expressed a desire to receive evidence, as follows: "Why don’t we take some testimony at the end of the docket?" (R. 7.) However, Gosa’s counsel declined that invitation and specifically stated that Gosa did not want a hearing. (R. 8.) The circuit court then responded: "So, is the report correct, Mr. Gosa?" (R. 8.) Gosa unambiguously replied: "Yes, sir." (R. 8.) That report clearly states that Gosa absconded, and it sets forth a factual basis for that allegation. Although earlier Gosa had given excuses for his failure to report, when the trial court decided to have a hearing, Gosa explicitly stated that he did not want a hearing and unambiguously admitted to everything in the report. He made no attempt to present a defense from that point forward.
The present situation is not like the situation in Wilkerson v. State, 372 So.3d 573 (Ala. Crim. App. 2022), Gann v. State, 337 So. 3d 1217, 1223 (Ala. Crim. App. 2021), or Williford v. State, 329 So. 3d 86 (Ala. Crim. App. 2020). In Wilkerson, at the beginning of the hearing, the trial court asked the defendant: "Okay, is the [delinquency] report correct?" 372 So.3d at 574. Instead of responding "yes, sir" like Gosa in the present case, the defendant’s counsel responded: "Judge, lie has some issues with some of the violations." Id. Then, without receiving evidence, the trial court went over each allegation, and, although the defendant admitted that he had failed drug tests, he never admitted that he had used illegal drugs as alleged in the report.
Likewise, in Gann, the defendant admitted only that he had been arrested for a new offense. He did not admit that he committed the new offense. In fact, he denied the charge and attempted to present a defense. Further, the defendant did not admit to the other allegations in the delinquency report. Gann v. State, 337 So. 3d 1217, 1223 (Ala. Crim. App. 2021). Similarly, in Williford, although the defendant admitted that she had been arrested for new offenses, she expressly denied that she had committed those offenses. She also attempted to explain why her failure to report did not constitute absconding, as alleged in the delinquency report, Williford v. State, 329 So. 3d 86 (Ala. Crim. App. 2020).
In the present case, Gosa unambiguously stated that everything in the report was correct, and that report stated that Gosa absconded. Gosa did not make ambiguous statements like the defendants did in Wilkerson, Gann, and Williford, and he did not try to present a defense after he unambiguously stated that he did not want a hearing and admitted that everything in the report was correct.
Based on the foregoing, I would affirm the trial court’s revocation order.
Cole, J., concurs.