DEAN v. STATE

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Nickolas L. DEAN 1 v. STATE of Alabama.

CR-08-1082.

Decided: December 18, 2009

The appellant, Nickolas L. Dean, appeals the circuit court's revocation of his probation. In November 2003, Dean pleaded guilty to robbery in the first degree; he was sentenced to 20 years imprisonment which sentence was split, and he was ordered to serve five years' incarceration followed by three years supervised probation.

In December 2008, Dean's probation officer filed a delinquency report charging Dean with violating the terms of his probation by failing to report to his probation officer, failing to pay supervision fees, and failing to pay court-ordered moneys. After a hearing at which the court found that Dean failed to report to his probation officer, the circuit court revoked Dean's probation and ordered Dean to serve the remainder of his 20-year sentence. This appeal followed.

On appeal, Dean, who is an indigent defendant, argues: “The Court erred in failing to appoint a lawyer to represent Dean. The Court used an arbitrary standard in determining whether counsel would be appointed.” (Dean's brief at p. 8.) The State argues that Dean failed to preserve this issue for appellate review.

Initially, we note that the general rules of preservation apply to probation-revocation proceedings; however, we have recognized three exceptions to this rule:

“(1) The requirement that there be an adequate written order of revocation, (2) the requirement that a revocation hearing actually be held, and (3) the requirement that the defendant be advised of his right to request an attorney. Puckett v. State, 680 So.2d 980, 983 (Ala.Crim.App.1996); Law v. State, 778 So.2d 249, 250 (Ala.Crim.App.2000).”

Smith v. State, [Ms. CR-07-1275, December 19, 2008] --- So.3d ----, ---- (Ala.Crim.App.2008). Dean's claim fits within the third exception. See Donaldson v. State, 982 So.2d 609, 610 n. 1 (Ala.Crim.App.2006) (reviewing Donaldson's claim that the circuit court erred in not appointing counsel during probation-revocation hearing even though the issue was not preserved for appellate review).

Moreover, Dean's probation was revoked on March 30, 2009. On April 13, 2009, Dean, acting pro se, filed a letter addressed to the circuit judge. The letter reads:

“I am writing the court to request an appeal regarding my revocation hearing. At that particular time in question I didn't have an attorney to represent me. I feel that if I had someone to speak on my behalf the outcome of the hearing would have been different.”

(C.R.13.)2 The letter was treated as a notice of appeal.3

The record of the probation hearing reflects the following discussion at the beginning of the hearing:

“The Court: You have the right to hire your own lawyer, Mr. Dean. Can you hire a lawyer and do you want to do that?

“[Dean]: Sir, I'm not able to, sir.

“The Court: If you can tell me that this report is wrong I will appoint an attorney.

“[Dean]: I misunderstood the question.

“The Court: If you can tell me that you have not violated probation; that this report is in error, then I will appoint a lawyer to represent you.

“[Dean]: It's not, sir.

“The Court: You can't do that.

“[Dean]: I did not report.

“The Court: All right. You don't have to admit, technically now, that you violated probation. If you deny it, then I'll take testimony from the probation officer. You can testify if you want to, but you may remain silent. Do you understand that?

“[Dean]: Yes, sir.

“The Court: Do you admit or deny failing to report and paying the Court-ordered moneys? Do you admit it or deny it? Is it true or not true?

“[Dean]: Deny.

“The Court: Well, is this report true or not true?

“[Dean]: It's not true. The whole thing is not true.

“The Court: Is it true or not true that you failed to report to your probation officer?

“[Dean]: It's true.

“The Court: All right. And what part do you deny?

“[Dean]: I paid-I was paying the fines.

“․

“The Court: Do you want to tell me why you didn't report ?

“[Dean]: I had lost my place. Home. Residence. I had lost my home residence and I was living on the street, sir.”

(R. 2-4.)

There is no absolute right to counsel in a probation revocation proceeding, only a qualified right. See Coon v. State, 675 So.2d 94 (Ala.Crim.App.1995). “Whether a probationer is entitled to counsel is determined on a case-by-case basis.” Gibbons v. State, 882 So.2d 381, 382 (Ala.Crim.App.2003). This limited right is incorporated into Rule 27.6(b), Ala. R.Crim. P., which states:

“The probationer is entitled to be present at the hearing and to be represented by counsel. Counsel will be appointed to represent an indigent probationer upon request:

“ ‘(1) If the probationer makes a colorable claim that the probationer has not committed the alleged violation of the conditions or regulations of probation or the instructions issued by the probation officer; or

“ ‘(2) Even when the violation is a matter of public record or is uncontested, if there are substantial reasons that justify or mitigate the violation and that may make revocation inappropriate, and the reasons are complex or otherwise difficult to develop or present.”

This rule was patterned to comply with the requirements set out by the United States Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

In this case, Dean denied the allegation that he failed to pay court-ordered moneys. After prompting from the court, Dean did admit that he had failed to report to his probation officer. However, Dean explained that he failed to report because he had no home and was living on the street. According to Rule 27.6(b)(2), Ala. R.Crim. P., Dean alleged facts that might tend to mitigate his failure to report to this probation officer. See Dean v. State, 855 So.2d 1142 (Ala.Crim.App.2003). Dean was entitled to counsel at his probation-revocation hearing. We must reverse the circuit court's order revoking Dean's probation and remand this case so that the circuit court may hold a new probation-revocation hearing at which Dean is represented by counsel.

REVERSED AND REMANDED.

I respectfully dissent from the per curiam opinion reversing Dean's probation revocation and remanding the case for further proceedings.

Initially, I do not believe that Dean's claim falls under any of the three exceptions to the general rule of preservation, which are:

“(1) the requirement that a revocation hearing be held, (2) the requirement that there be an adequate written revocation order, and (3) the requirement that the probationer be informed of his right to request counsel. See, e.g., Jackson v. State, 867 So.2d 365 (Ala.Crim.App.2003), and Evans v. State, 794 So.2d 1234 (Ala.Crim.App.2000).”

Walker v. State, 920 So.2d 592, 594-95 (Ala.Crim.App.2005). Although the per curiam opinion cites Donaldson v. State, 982 So.2d 609 (Ala.Crim.App.2006), for the proposition that Dean's claim falls under the third exception, I disagree. The allegation that the probationer did not know he had the right to request counsel is different than the allegation that the trial court erred in not appointing counsel. Thus, I believe that to the extent that Donaldson suggests this claim falls under the third exception to preservation, it should be overruled.

Further, and without abandoning my belief that the claim was not preserved, I believe that the per curiam opinion has prematurely determined that “Dean was entitled to counsel at his probation-revocation hearing. We must reverse the circuit court's order revoking Dean's probation and remand this case so that the circuit court may hold a new probation-revocation hearing at which Dean is represented by counsel.” Dean, --- So.3d at ----. I believe the per curiam opinion erred in making that determination without first affording the circuit court the opportunity to make the initial determination. Rather, as this Court stated in Donaldson, the case relied upon by the per curiam opinion:

“[I]t does not appear that the circuit court made an initial determination as to whether the appellant was entitled to have counsel appointed to represent him. Furthermore, based on the record before us, it appears that the appellant may have a colorable claim that he did not commit the alleged violations or that he may have had substantial reasons to justify or mitigate the violations. Accordingly, we remand this case to the circuit court with instructions that that court make specific, written findings regarding whether the appellant was entitled to have counsel appointed to represent him during the revocation hearing. If the circuit court determines that the appellant was entitled to have counsel appointed to represent him during the revocation hearing, it shall set aside its order revoking the appellant's probation and conduct a new revocation hearing. In conducting the revocation hearing, we caution the circuit court to comply with the due process requirements set forth in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975); and Rule 27, Ala.R.Crim. P. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days after the release of this opinion. The return to remand shall include the circuit court's specific, written findings of fact and a transcript of the remand proceedings conducted by the circuit court, if any.”

Donaldson v. State, 982 So.2d at 611. Thus, I believe that the majority has improperly usurped a role delegated to the trial court.

For these reasons, I respectfully dissent.

PER CURIAM.

WISE, P.J., and WELCH and KELLUM, JJ., concur. MAIN, J., dissents, with opinion, which WINDOM, J., joins.