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holding that the probationer did not admit to a violation of her probation when she admitted only that she had been arrested for new offenses and denied that she had committed the new offenses
Summary of this case from Nelson v. StateOpinion
CR-19-0481
12-16-2020
Tiffany Dawn WILLIFORD v. STATE of Alabama
Lisa M. Ivey of Stubbs, Sills & Frye, P.C., Anniston, for appellant. Steve Marshall, atty. gen., and J. Thomas Leverette, asst. atty. gen, for appellee.
Lisa M. Ivey of Stubbs, Sills & Frye, P.C., Anniston, for appellant.
Steve Marshall, atty. gen., and J. Thomas Leverette, asst. atty. gen, for appellee.
McCOOL, Judge. Tiffany Dawn Williford appeals the Marion Circuit Court's order revoking her probation. For the reasons set forth herein, we reverse the circuit court's order and remand for further proceedings.
Facts and Procedural History
It appears from the limited record on appeal that in 2018 Williford was convicted of unlawful possession of a controlled substance, a violation of § 13A-12-212, Ala. Code 1975, and of fourth-degree theft of property, a violation of § 13A-8-5, Ala. Code 1975. (C. 5.) It appears that Williford was sentenced to eight years’ imprisonment for her unlawful-possession-of-a-controlled-substance conviction and that her sentence was split for her to serve two months’ imprisonment, followed by five years of supervised probation. (C. 5.) As to her theft conviction, it appears that Williford was sentenced to one year of imprisonment, that her sentence was suspended, and that she was ordered to serve a two-year probationary term. (C. 5.)
In November 2019, Williford's probation officer filed a delinquency report alleging that Williford had violated the terms of her probation by absconding. Specifically, the report alleged that Williford had "never reported ... to go over the paperwork," that the probation officer had "mailed two letters to two different addresses instructing [Williford] to report in," that Williford "never reported or called" in response to those letters, that the probation officer had left "a card [at Williford's mother's address] noting for [Williford] to report in ... immediately," that Williford "never did" respond to the card, and that it was therefore "obvious that [Williford was] avoiding supervision." (C. 5.) In December 2019, Williford's probation officer supplemented the delinquency report to allege that Williford had violated the terms of her probation by being arrested and charged with two new counts of unlawful possession of a controlled substance. (C. 7.)
On January 9, 2020, Williford appeared before the circuit court for a hearing, at which the following colloquy occurred:
"THE COURT: Do you understand the violations of your probation that have been 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?
"[DEFENSE COUNSEL]: No, sir.
"THE COURT: Okay. Does the probationer request a formal hearing on these allegations?
"[DEFENSE COUNSEL]: No, sir.
"THE COURT: Do you admit to the violations contained in the report, specifically that it was alleged that you committed the violation of absconding, and there was a supplement to the report. There was a new offense of possession of a controlled substance and a second count of possession of a controlled substance. Do you admit that you received those violations and you were arrested for those charges?
"THE DEFENDANT: I was arrested for those charges. Yes, sir.
"THE COURT: And I'm not asking you to admit that you did it. It's just the fact that you were just arrested for it.
"[DEFENSE COUNSEL]: Right. She was arrested, Your Honor. She does have a defense, but she was arrested.
"THE COURT: Okay. So does the probationer request a formal hearing on these allegations?
"[DEFENSE COUNSEL]: No, sir.
"THE COURT: Is this admission voluntary?
"THE DEFENDANT: Yes, sir.
"THE COURT: Has anybody forced or threatened you to get you to admit to it?
"THE DEFENDANT: No.
"THE COURT: All right. Based upon 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 her probation by receiving a violation of absconding and being arrested for two new charges, both of which are possession of a controlled substance. Do you have anything to say before sentence is imposed?
"....
"THE DEFENDANT: I didn't -- I don't run from probation, Your Honor. I might have messed up a few times, but I didn't know. I had been in prison since May of 2017, and when I got out, I just assumed -- I guess I was wrong -- that they would let me know what I needed to do when I got out. And I really wasn't planning on coming back to Hamilton, and I didn't come back until after November the 1st to Hamilton, you know, and that's just -- I didn't --
"[DEFENSE COUNSEL]: The address that she had given apparently --
"THE DEFENDANT: I had never been to State probation that I remember, you know, and gave them an -- I don't know where they got the address. I didn't know they were looking for me, you know. I didn't -- I didn't know.
"THE COURT: Well, in the report it says there was a home visit conducted October 24th ... at ... your mother's address --
"THE DEFENDANT: That's not -- my mother lives in Belmont, Mississippi.
"[DEFENSE COUNSEL]: Yes, sir, she does.
"THE DEFENDANT: ... That's my child's daddy's address, and I don't wish to have anything to do with him. I haven't had anything to do with him since I've been locked up in prison. So they wouldn't naturally tell me that, you know, I guess --
"[DEFENSE COUNSEL]: The daddy is a convicted felon. It would be a violation of her probation to go back there.
"....
"THE COURT: Okay. Anything else to add, to tell me?
"THE DEFENDANT: Just that I promise I'm not going to abscond or anything if I get reinstated, you know.
"THE COURT: All right. 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, and that the probationer is in need of correctional treatment which can most effectively be provided if she is confined. It is ordered and adjudged that the probationer has violated the conditions of probation as stated in [the delinquency report], and the probationer's probation heretofore granted is revoked."
(R. 5-9.)
On January 21, 2020, the circuit court entered an order revoking Williford's probation and ordering her to serve the balance of her sentences; that order states, in pertinent part:
"[I]t is ordered that the defendant has violated the conditions of probation in that there is reasonable cause to believe that defendant has committed the offense of absconding by never reporting to probation office after release from prison, and possession of controlled substance x 2 (new offenses). The factual
basis for this court's ruling is contained in the attached exhibit R-1 [(the delinquency report)]."
(C. 3.) Williford filed a timely notice of appeal.
Analysis
On appeal, Williford contends that the circuit court's order revoking her probation must be reversed because, she says, the January 9, 2020, hearing from which we quoted above did not constitute a revocation hearing. See Hollins v. State, 737 So. 2d 1056, 1057 (Ala. Crim. App. 1998) (noting that § 15-22-54, Ala. Code 1975, "requires a hearing as a prerequisite to the revocation of probation" and that "[t]his statutory requirement is mandatory and jurisdictional" (quoted with approval in, among other cases, Allen v. State, 285 So. 3d 864, 866 (Ala. Crim. App. 2019) )). In support of her contention that the January 9, 2020, hearing did not constitute a revocation hearing, Williford cites cases in which this Court held that a purported revocation hearing did not actually amount to a revocation hearing because no evidence was presented. See Allen, supra ; Saffold v. State, 77 So. 3d 178 (Ala. Crim. App. 2011) ; and D.L.B. v. State, 941 So. 2d 324 (Ala. Crim. App. 2006). See also Moore v. State, 54 So. 3d 442 (Ala. Crim. App. 2010). Thus, Williford argues, because the circuit court did not receive any evidence at the January 9, 2020, hearing, that hearing did not constitute a revocation hearing, and, as a result, she argues, the circuit court's order must be reversed and the case remanded for that court to hold an adequate revocation hearing.
In response, the State argues that Williford's claim is not preserved for appellate review because she did not raise the claim in the circuit court. Although it is true that the general rules of preservation apply to revocation proceedings, King v. State, 294 So. 3d 257, 259 (Ala. Crim. App 2019), Alabama's appellate courts have recognized exceptions to the preservation rule, including a claim " ‘that a revocation hearing actually be held.’ " King, 294 So. 3d at 259 (quoting Singleton v. State, 114 So. 3d 868, 870 (Ala. Crim. App. 2012) ). By arguing that the January 9, 2020, 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. King, supra. See also Moore, 54 So. 3d at 443 ("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."); and Hyche v. State, 301 So. 3d 848, 850 (Ala. Crim. App. 2020) (noting that " ‘the failure to conduct a revocation hearing ... is a jurisdictional defect’ " (quoting Durry v. State, 977 So. 2d 539, 541 (Ala. Crim. App. 2007) )).
Having concluded that Williford may raise this claim for the first time on appeal, we agree with Williford's contention that a revocation hearing did not occur in this case. As noted, the State presented no evidence at the January 9, 2020, hearing, and, as Williford notes, this 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. See Allen, supra ; Saffold, supra ; Moore, supra ; and D.L.B., supra. Thus, as we did in Allen, Saffold, Moore, and D.L.B., we conclude that a revocation hearing did not occur in this case.
The circuit court in this case indicated in its revocation order that the factual basis for revocation was the allegations in the delinquency report. However, there is nothing in the record to indicate that the State offered the delinquency report into evidence.
However, the fact that a revocation hearing did not occur does not in and of itself entitle Williford to relief. As the State notes, pursuant to Rule 27.5(b), Ala. R. Crim. P., a probationer "may waive his right to a revocation hearing 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, 577 (Ala. 2008) (quoting Rule 27.5(b) ). See D.L.B., 941 So. 2d at 326 (noting, in holding that the probationer had been denied his right to a revocation hearing because no evidence was presented at the purported revocation hearing, that there was no indication in the record that the probationer had waived his right to a revocation hearing). According to the State, Williford waived her right to a revocation hearing because, the State says, she admitted that she had violated the conditions of her probation. Williford argues, however, that she did not admit to anything that constituted a violation of the conditions of her probation and that, as a result, she did not waive her right to a revocation hearing.
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 before a circuit court can dispense with the formality of 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 at 577 (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) (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.
To be clear, we make no determination as to whether Williford's conduct amounted to absconding. For our purposes, it is sufficient to note that Williford did not admit to absconding.
In reaching this conclusion, we recognize the difficult position in which Williford placed the circuit court. That is to say, Williford clearly indicated that she did not desire a formal revocation hearing at which the State would be required to present evidence supporting revocation, but she refused to do that which is required in order to waive such a hearing, i.e., admit that she had violated a condition of her probation. Ex parte Anderson, supra. Nevertheless, 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), that he or she committed a violation of the conditions of his or her probation. Rule 27.5(b). Thus, on remand, if Williford again indicates a desire to waive her right to a revocation hearing, the circuit court should ensure that the waiver complies with Rule 27.5(b) and Rule 27.6(c) before revoking Williford's probation; if Williford's attempted waiver does not comply with the mandates of those rules, the circuit court should hold an evidentiary hearing and make a determination regarding revocation based upon the evidence presented at the hearing.
Conclusion
Based on the foregoing, we reverse the circuit court's order revoking Williford's probation, and we remand the case for the circuit court to hold a revocation hearing, unless Williford validly waives her right to a revocation hearing.
REVERSED AND REMANDED.
Windom, P.J., and Kellum, Cole, and Minor, JJ., concur.