Summary
In Wilkerson v. State, 372 So.3d 573 (Ala.Crim.App.2022), the probationer again argued that a revocation hearing was not held, a recognized exception to the general preservation rules, because he did not admit to violating his probation, he did not waive his right to a hearing, and the State presented no evidence.
Summary of this case from Mulkey v. StateOpinion
CR-20-0660
05-27-2022
Arthur Doyle Wilkerson v. State of Alabama
This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.
Appeal from Marion Circuit Court (CC-20-0504.70).
COLE, Judge.
Arthur Doyle Wilkerson appeals the Marion Circuit Court's decision to revoke his community-corrections sentence. Wilkerson argues that the circuit court failed to conduct an adequate revocation hearing before it revoked his community-corrections sentence and thereby violated his right to due process. The State, on the other hand, claims that Wilkerson's argument is not properly before this Court for appellate review because he did not raise his argument in the circuit court. For the following reasons, this Court holds that Wilkerson's argument is properly before this Court, reverses the circuit court's judgment, and remands this case to the circuit court for proceedings consistent with this opinion.
Facts and Procedural History
On March 30, 2021, Wilkerson was convicted of violating Alabama's Sex Offender Registration and Community Notification Act ("ASORCNA") because he was living within 2, 000 feet of a school or child-care facility. (C. 5.) The circuit court sentenced Wilkerson, as a habitual felony offender, to six years' imprisonment and split the sentence, ordering Wilkerson to serve one year and one day in community corrections, followed by three years' probation. (C. 5.)
On May 21, 2021, while Wilkerson was serving his split sentence in community corrections, Judie Osborn filed a "Report on Delinquent Inmate," in which she alleged that Wilkerson had violated the terms and conditions of the community-corrections program by failing four drug tests, by failing to appear for two drug tests, and by failing to pay community-corrections fees. (C. 5-6.)
On June 2, 2021, Wilkerson, along with his appointed counsel, appeared before the circuit court. During that appearance, the following exchange occurred:
"The Court: All right, Mr. Wilkerson, you are here with your attorney, and have you read the report?
"[Wilkerson]: Yes, sir.
"The Court: Okay, is the report correct?
"[Wilkerson's counsel]: Judge, he has some issues with some of the violations.
"The Court: Okay, let's go over them.
"[Wilkerson's counsel]: I consulted with Mr. Wilkerson about those. Due to the fact that I have actually got a release to get his prescriptions, he may have a prescription that could account for some of his failed drug tests, however I received that at 4:39 yesterday afternoon from the Marion County Jail, and I know they are overworked and doing an extremely good job, but I have not been able to get his prescription medication records; however, due to the time that he's already been in the county jail, which will be 14 days coming up this Friday, and the fact that if we continue this case out till the July docket, he would be willing to accept any type of sanction short of full revocation and admit to the allegations in the report today.
"The Court: Well, okay. Let's look and see. Did the defendant fail to show for a drug test on April the 22nd, 2021?
"[Wilkerson]: Your Honor, I went -- and because I'm in Walker County, I went to their office, and I got there a little late and they was already closing up and they gave me like three minutes to try and drug test and of course I couldn't and they just said they was going to put me down for a failure to provide.
"The Court: That was the 22nd. What about the 29th, you got the same thing?
"[Wilkerson]: On that day I went down there and I was short on my fees for the drug test. They said that because I was from another county that they could not drug test me without my full fee, and from the office there I called and I explained that to -- I'm not for sure who, I believe Jessica, and they told me that it would be okay that they was going to excuse that.
"[Wilkerson's counsel]: Which office did you go to, Arthur?
"[Wilkerson]: I went to the Walker County office.
"[Wilkerson's counsel]: Okay.
"The Court: All right, and I'm looking at this. Some of these failed drug tests, looks like the first one, April 6, 2021, it was a failed test for methamphetamines and amphetamines; and then another failed drug test for methamphetamine, amphetamine, opiates, and marijuana, and that was May the 11th.
"May 17th, another failed drug test for methamphetamines and Suboxone.
"Violation No. 6, failed drug test, May the 20th. Positive for methamphetamine, amphetamines, Suboxone, and
marijuana. I don't think you can get a prescription for marijuana.
"[Wilkerson]: No, sir. I didn't understand that CB [sic] oil would make you fail for marijuana also. As I explained to him I was -- I'd been smoking Delta 8 cartridges for a while now, you know, because it's, I thought it was legal, you know, and come to find out that makes you fail for marijuana if you smoke it quite regular. That's how come you can notice some of them, the drug tests are within a couple weeks of each other, and it shows dirty and then it doesn't show dirty.
"[Wilkerson's counsel]: Judge, Mr. Wilkerson is new on the Community Corrections program. He began a sentence March 30th of this year. He may need to address some underlying substance abuse issues, but he is new and this is his first violation.
"….
"The Court: … Who was administering these tests that you failed?
"[Wilkerson]: The Walker County Community Corrections office because it's the closest office. They allowed me to go there to do the test, but, Your Honor, I believe I would rather do it in Winfield or Marion County somewhere, because I've had problems with an officer there in the past and that seems to be -- to be the problem because I owe them some back fees.
"[Prosecutor]: Judge, I think it's the State's position no matter where he tested he was still positive for methamphetamines and marijuana, and CBD would not cause him to test positive for marijuana if it was legal CBD oil.
"The Court: Yes, that's what I understand also.
"Yeah, based upon the report and the discussions we've had with Mr. Wilkerson the Court finds to a reasonable satisfaction that the defendant has violated conditions of Community Corrections serving a sentence.
"Anything you would like to say or present before sentence is imposed?
"[Wilkerson]: No, sir, other than I -- like he said, this is a first violation, and I am willing to correct my wrong and provide, you know, negative or be clean on drug tests from this point on.
"….
"[Judie Osborn]: Your Honor, if I may.
"The Court: Sure.
"[Judie Osborn]: We went over the rules and regulations with Mr. Wilkerson. He signed he understood he was not to use any illegal drugs or alcohol. He has not ever provided any type of prescriptions to the Community Corrections office.
"The Court: And some of the issues that I'm dealing with are substances that you can't get a prescription for.
"[Judie Osborn]: Yes, sir, I understand.
"….
"The Court: Court finds no measure short of confinement will devoid appreciating the seriousness of the claimed violation. Your status is changed from serving with CCP to serving with DOC."(R. 2-9.) In sum, Wilkerson admitted that the community-corrections program had determined that he had failed drug tests because he tested positive for marijuana, but he claimed that his positive tests were the result of his using legal CBD products, not marijuana. Wilkerson's counsel also alleged that Wilkerson had some prescriptions that would account for other failed drug tests.
On June 4, 2021, the circuit court memorialized its decision in a written order, finding that Wilkerson had violated the terms of his community-corrections sentence by committing the "technical violation" of a "failed drug test." (C. 4.) Wilkerson filed no post-hearing motions. This appeal follows.
It is not clear which of the four alleged failed drug tests (or which drug -- i.e., opiates, marijuana, amphetamine, or methamphetamine) served as the basis for Wilkerson's revocation. But, because we must reverse the circuit court's judgment, it is unnecessary to remand this case to the circuit court for that court to provide this Court with an adequate written order. See McCoo v. State, 921 So.2d 450 (Ala. 2005) ("[O]ur holding in this case does not diminish the duty of the trial court to take some affirmative action, either by a statement recorded in the transcript or by written order, to state its reasons for revoking probation, with appropriate reference to the evidence supporting those reasons. The requirements of Wyatt [v. State, 608 So.2d 762 (Ala. 1992), ] will still be fully applicable in those situations where the record, for lack of transcription of the revocation hearing or for some other reason, fails to clearly and unambiguously set forth the reasons for the revocation and the evidence that supported those reasons.").
Discussion
Wilkerson argues that the circuit court erred when it revoked his community-corrections sentence because, he says, "the revocation hearing was inadequate, [he] did not admit to failing a drug test, and the State failed to present any evidence regarding the alleged violation[s]." (Wilkerson's brief, p. 9.) The State claims that Wilkerson's argument is not properly before this Court for appellate review.
Before this Court can address the merits of Wilkerson's argument, we must first determine whether Wilkerson's argument is properly before this Court. It is well settled that, with limited exceptions, "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, 8-9 (Ala. 2009) (citing § 15-18-175(d)(3)b., Ala. Code 1975). Important here is the well established principle that both the general rules of preservation and the four recognized exceptions to the general rules of preservation that apply to probation-revocation proceedings also apply to community-corrections-revocation proceedings. See, e.g., Allen v. State, 285 So.3d 864, 865-66 (Ala.Crim.App.2019) (applying the general rules of preservation and the exceptions to the general rules of preservation that apply in a probation-revocation proceeding to a community-corrections-revocation proceeding). The four recognized exceptions to the preservation requirement, as outlined in Allen, 285 So.3d at 865-66, are: (1) that there be an adequate written or oral order of revocation; (2) that a revocation hearing actually be held; (3) that the circuit court advise the probationer of his right to request an attorney; and (4) that the circuit court erred in failing to appoint counsel to represent the probationer during a probation-revocation proceeding.
Here, Wilkerson did not argue in the circuit court that the revocation hearing was inadequate. He contends, however, that his argument falls within the second recognized exception to the preservation requirement. The State argues that whether the revocation hearing was "adequate" is a different question from whether a revocation hearing was actually held; thus, the State says, Wilkerson's argument is not properly before this Court. Yet, Wilkerson also specifically alleged that the revocation hearing "did not constitute a revocation hearing, " (Wilkerson's brief, p. 9) and he argues in his reply brief that this is the equivalent to asserting that a hearing was not held.
In support of his position, Wilkerson cites Williford v. State, 329 So.3d 86 (Ala.Crim.App.2020). In Williford, this Court faced a set of circumstances nearly identical to those we face here. In that case, while 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 to have 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.
Here, Wilkerson argues that the revocation hearing was inadequate and that the "June 4, 2021, hearing did not constitute or actually amount to a revocation hearing, because no evidence was presented." (Wilkerson's brief. P. 7.) So, just as in Williford, by arguing that 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. We now turn to the merits of Wilkerson's argument on appeal.
As set out above, at Wilkerson's proceeding, the circuit court did not take any evidence before it revoked Wilkerson's community-corrections sentence. Although Osborn did make comments to the circuit court during Wilkerson's proceeding, there is no indication that she was sworn in to testify during the proceeding and she was not subject to cross-examination. 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, 329 So.3d at 90-91 ("[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, 285 So.3d at 869 (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 Allen 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 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(c), [Ala. R. Crim. P., ] that he committed the alleged violation." Rule 27.5(b), Ala. R. Crim. P. Here, the circuit court circumvented the requirement that a revocation hearing be held by basing its revocation on Wilkerson's admission that he had violated the terms and conditions of the community-corrections program, but Wilkerson did not admit to the truthfulness of the allegations in the report alleging that he had violated the conditions of the community-corrections program.
Indeed, although Wilkerson, or his counsel, indicated that he wished to forgo a formal revocation hearing, stated that he was willing to admit to the allegations in the report, and admitted that he had failed drug tests, Wilkerson did not admit to having used illegal drugs. Nor did he invite the trial court's error by his statements. Rather, Wilkerson tried to present a defense to the failed drug tests -- i.e., that he had been using legal CBD products and that he had been taking prescription medication.
"[B]ecause there was not an admission of the truthfulness of the allegations, there was not a sufficient basis for the revocation of [Wilkerson]'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."Gann v. State, [Ms. CR-20-0196, Apr. 23, 2021] __ So.3d __, (Ala.Crim.App.2021).
Conclusion
Accordingly, this Court reverses the circuit court's order revoking Wilkerson's community-corrections sentence and remands the case for the circuit court to hold a revocation hearing, unless Wilkerson validly waives his right to a revocation hearing.
REVERSED AND REMANDED.
Windom, P.J., and Kellum, McCool, and Minor, JJ., concur.