Opinion
24-KH-397
12-30-2024
STATE OF LOUISIANA v. JOSH HOLLYWOOD
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT, PARISH OF ST CHARLES, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE CONNIE M. AUCOIN, DIVISION "C", NUMBER 23,97618
Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Stephen J. Windhorst
Relator/defendant, Josh Hollywood, seeks review of the trial court's ruling revoking his probation and making his original six month sentence executory. Relator also requests a stay of the execution of sentence pending review by this court. For the following reasons, relator's writ application and request for a stay are denied.
On December 1, 2023, the St. Charles Parish District Attorney's Office filed a bill of information charging defendant with one count of misdemeanor domestic abuse battery, in violation of La. R.S. 14:35.3. On the same day, relator pled guilty as charged. Defendant was sentenced to six months in the parish prison, his sentence was suspended, and he was placed on supervised probation for twelve months. As a condition of his probation, defendant was ordered to "complete a court-approved domestic violence intervention treatment program within 40 weeks of sentencing." The general conditions of probation were also attached to defendant's plea agreement.
On March 5, 2024, the State filed a motion to revoke defendant's probation. The motion included an affidavit signed by probation officer, Tris Bailey, attesting that probation officer, Jane Smith, reported that defendant had violated a condition of his probation, i.e., "Complete domestic violence intervention treatment" by failing to "provide proof of attendance to Domestic Violence classes as ordered." The trial court set the revocation hearing on April 16, 2024, which was ultimately reset for hearing on August 6, 2024.
La. C.Cr.P. art. 895(M)(1) provides:
In all cases where the defendant has been convicted of an offense of domestic abuse as provided in R.S. 46:2132(3) to a family or household member as provided in R.S. 46:2132(4), or of an offense of dating violence as provided in R.S. 46:2151(C) to a dating partner as provided in R.S. 46:2151(B), the court shall order that the defendant submit to and successfully complete a court-approved course of counseling or therapy related to family or dating violence, for all or part of the period of probation. If the defendant has already completed such a counseling program, said counseling requirement shall be required only upon a finding by the court that such counseling or therapy would be effective in preventing future domestic abuse or dating violence.
The official minute for April 16, 2024, states that defendant and his counsel were present but the hearing was reset for July 16, 2024. The minute entry does not indicate the reason for resetting the hearing. The writ application does not contain a minute entry for July 16, 2024, but contains a motion and order continuing the revocation hearing on the court's own motion to August 6, 2024, due to a scheduling conflict.
On August 6, 2024, at the beginning of the revocation hearing, the trial court asked defendant if he had completed the "domestic abuse" classes, to which defendant responded, "I did some, but no." When asked if he had proof of his attendance, defendant replied "no ma'am."
Tris Bailey, a probation officer supervisor, testified that she supervised defendant's probation. She stated that she reviewed the conditions of probation with defendant and defendant indicated he understood the conditions. Officer Bailey testified that defendant had not abided by the conditions of his probation. She asserted that defendant violated the condition of his probation requiring him to complete a "court-approved domestic violence intervention program" within 40 weeks of sentencing. She testified that defendant did not complete the program and did not provide any proof or documentation of his completion of the program. Officer Bailey stated that she had "paperwork" indicating that defendant "signed up" on April 12, 2024, stating he agreed to take the course with "CORE." She further testified that the agency that administers the CORE program informed her via email that defendant would be terminated from the program on July 3, 2024, based on his failure to attend classes.
On cross-examination, Officer Bailey conceded that defendant's 12 month probationary period, which began on December 1, 2023, had not yet elapsed and she agreed that the 40 week deadline for completion of the program would be approximately September 7, 2024. However, Officer Bailey testified that defendant could no longer complete the required program by the deadline because he had "26 weeks of classes to do." She explained that the classes were held once a week for 26 weeks. Officer Bailey testified that if more than three classes were missed, the probationer was required to start over. She stated she would need documentation from CORE or from him telling her the exact number of classes he had attended. She testified that defendant did not provide her with any proof that he attended any of the classes for the program. Officer Bailey admitted that when defendant originally signed up in April, he informed her that he was homeless at the time and experiencing transportation issues. In response, Officer Bailey testified that she arranged for defendant's participation in a virtual domestic violence program through CORE. According to Officer Bailey's calculations, if defendant started the program on the date of the hearing, August 6, 2024, he "wouldn't be complete for six months." Defendant did not testify or offer any mitigating evidence to rebut the State's evidence.
At the end of the hearing, defense counsel argued that the motion to revoke his probation was premature because the 40 week period to complete the program had not elapsed. Defense counsel stated that it was not appropriate for the State to file the motion to revoke "in anticipation of a date in September that has not yet occurred," in which it was "anticipating a future outcome or future behavior." Defense counsel argued that "as it stands now [defendant] is not in violation of the terms of his probation unless and until he fails to complete these courses" and the evidence shows he failed to complete the program. Defense counsel asserted that defendant did enroll in the class, which shows he did "at least make some effort or some attempt before ultimately being removed from the program." In response, the State argued that it would be "physically impossible for [defendant] to complete a 26-week program within the 40 weeks." Nevertheless, the State pointed out that the motion to revoke defendant's probation stated that defendant violated his probation because he failed to file proof of his attendance in the program.
In revoking defendant's probation, the trial court dismissed defendant's argument that the 40-week period had not elapsed as "academic." The trial court stated:
It has been 34 weeks since December 4th of 2023. In that time, [defendant] has produced no evidence or no document to support that he has even enrolled in this domestic abuse violence program, which is a 26-week course.
We are now six weeks from the expiration of 40 weeks. He could only complete six courses prior to the deadline of 40 weeks.
As we sit here today, he has provided no proof whatsoever that he has attended any classes, as was mandated in connection with his obligations for probation.
The trial court further pointed out that when defendant appeared in court on April 16, 2024, he was "explicitly ordered" to enroll in the program and provide proof of his enrollment, which he has not done. The trial court then revoked defendant's probation and ordered defendant "remanded into the custody of the Sheriff to serve the six months that he pled to and to serve the remainder of his sentence."
Defendant filed the instant writ application and requested a stay of the execution of his sentence pending this court's disposition.
Defendant requested a stay of execution of his sentence in the trial court, which was denied.
La. C.Cr.P. art. 900 sets forth what actions the trial court may take in the event it finds that "defendant has violated, or was about to violate, a condition of his probation." [Emphasis added.] Specifically, La. C.Cr.P. art. 900 provides in pertinent part:
... If the court decides that the defendant has violated, or was about to violate, a condition of his probation, it may:
(1) Reprimand and warn the defendant.
(2) Order that supervision be intensified.
(3) Add additional conditions to the probation.
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(5) Order that the probation be revoked. In the event of revocation the defendant shall serve the sentence suspended, with or without credit for the time served on probation at the discretion of the court. If the imposition of sentence was suspended, the defendant shall serve the sentence imposed by the court at the revocation hearing.
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The trial court has wide discretion in revoking defendant's probation. State v. Rexford, 95-152 (La.App. 5 Cir. 06/28/95), 658 So.2d 27, 29; State v. Rochelle, 38,633 (La.App. 2 Cir. 06/23/04), 877 So.2d 250, 255; State v. Smith, 618 So.2d 441, 443 (La.App. 5 Cir. 1993); State v. Sussmann, 374 So.2d 1256 (La. 1979); State ex rel. Robertson v. Maggio, 341 So.2d 366 (La. 1976). This court will not reverse the trial court's decision absent an abuse of that discretion. Rexford, 658 So.2d at 29. La. C.Cr.P. art. 900 D additionally contemplates that the defendant be given an opportunity to explain mitigating circumstances relating to the violation before the trial court decides whether to revoke his probation. Rochelle, 877 So.2d at 255; State v. Lucas, 385 So.2d 253, 254 (La. 1980).
In the instant case, defendant alleges the trial court erred by revoking his probation before an "actual violation" occurred and that he was still within the time period allowed for completing a domestic abuse rehabilitation course when his probation was revoke.
Defendant argues that Sussmann, supra, supports his argument. We disagree, finding the facts in Sussmann are distinguishable from the facts in this case. In Sussmann, the trial court revoked the defendant's probation for sniffing paint thinner and because confinement in in parish prison might convince defendant to "change his ways." The supreme court in reversing the trial court's judgment revoking defendant's probation found:
Revoking Sussmann's probation for these reasons was improper. None of the conditions of probation referred to the use of paint thinner or other intoxicants. Revocation for unlisted and unexplained special conditions is a denial of minimum due process rights.
The trial judge apparently thought that "If the probationer's conduct shows a gross nonconformist attitude and a serious violation was only prevented by alert action of the probation supervisor, revocation of probation is appropriate." Official Revision Comment (c) to C.Cr.P. 900. However, there was no evidence that a violation of a condition of defendant's probation was about to occur. Perhaps evidence of sufficient probative value could have been introduced to show criminal conduct of a serious nature, but it was not developed.Unlike the defendant in Sussmann, the conditions of defendant's probation were clearly set forth in defendant's plea agreement (i.e., "complete a court-approved domestic violence intervention treatment program within 40 weeks of sentencing) and in the general conditions of probation attached to defendant's plea agreement (i.e., including but not limited to "responsible for providing proof of probation compliance to the probation officer). Additionally, Officer Bailey testified she went over the conditions of probation with defendant and he indicated he understood. Moreover, at the April 16, 2024 hearing date which was continued, it is uncontested that the trial court explicitly ordered defendant to enroll in the program and to provide proof of his enrollment.
Here, the motion to revoke defendant's probation alleged that defendant violated a condition of his probation, specifically:
"CONDITION: Complete domestic violence intervention treatment: The probationer failed to provide proof of attendance to Domestic Violence classes as ordered." [Emphasis in original and emphasis added.]
Based on the evidence submitted at the revocation hearing, the trial court did not abuse its discretion in determining that defendant violated a condition of his probation (i.e., defendant failed to provide proof of attendance in a court-approved domestic violence intervention program) and that defendant "was about to violate" a condition of his probation (i.e., defendant failed to complete, and provide proof of completion of, a court-approved domestic violence intervention program). Therefore, we find the trial court did not abuse its discretion in revoking defendant's probation.
Defendant also argues that even if the trial court was within its discretion to find there was a basis for his revocation, the trial court could and should have imposed a "lesser punishment."
Louisiana courts have upheld revocation where the probationer was not motivated toward rehabilitation. In Smith, 618 So.2d at 443, defendant argued that the trial court should have imposed less onerous sanctions for his failure to comply with the conditions of his probation, instead of revoking his probation, considering his lack of criminal history, the nature of his offenses, and his apparent limited capabilities. This court, upon review of the revocation hearing transcript, found that defendant "made no attempt to fulfill any of the conditions of probation and was not motivated toward rehabilitation." This court held that the trial court's revocation of defendant's probation was not an abuse of the trial court's discretion. Id. See also State ex rel Dunkley v. Alford, 450 So.2d 414, 415 (La.App. 4 Cir. 1984), in which that court found that the trial court did not abuse its discretion in revoking the defendant's probation considering its finding that defendant, by his prior actions, clearly indicated that he did not possess a strong desire to rehabilitate himself.
Considering defendant's failure to provide any documentation of enrollment or attendance in a court-approved domestic violence intervention program, despite Officer Bailey's assistance in setting up virtual classes and the trial court's direct order on April 16, 2024, to enroll in the program and provide proof of his enrollment, as well as defendant's inability to complete the program within 40 weeks of sentencing, we find the trial court did not abuse its discretion in revoking defendant's probation.
Accordingly, for the reasons stated herein, defendant's writ application and request for a stay are denied.
SJW
FHW
JGG