Brandon Torregano v. State, A21A0809

In Oct. 2016 Torregano pleaded guilty to first-degree forgery (Muscogee County No. SU16CR366): 10-year sentence (2 years to serve, remainder on probation).
In Feb. 2020 probation petitions were filed (SU16CR366 and two other cases) alleging, inter alia, he struck a corrections officer and failed to submit to substance-abuse evaluation/treatment.
A revocation hearing was held via Zoom on June 23, 2020; Torregano appeared pro se and repeatedly asked for appointment of a public defender/new counsel.
The trial court did not make an explicit Gagnon analysis or state reasons on the record for refusing to appoint counsel, and proceeded; Torregano did not testify and the officer’s testimony was unopposed.
The trial court revoked Torregano’s probation in SU16CR366 “in full” and sentenced him to 6 years, 4 months, and 5 days confinement; the State concedes OCGA § 42-8-34.1(d) limits revocation to a 5-year maximum.
The Court of Appeals vacated the revocation order for SU16CR366 and remanded for the trial court either to state reasons for denying appointed counsel or to hold a new revocation hearing with counsel; resentencing is required if the court reenters revocation.

Issue	Torregano's Argument	State's Argument	Held
Right to counsel at probation-revocation hearing	He repeatedly asked for appointed counsel and was improperly denied; court failed to apply Gagnon factors or state reasons for refusal	Previous appointed counsel had said another public defender would not be appointed; court proceeded	Vacated and remanded: trial court erred by failing to state reasons or apply Gagnon; must either state reasons on record or give new hearing with counsel
Ability to present contested defense (making hearing fundamentally fair)	He denied the charged violation and needed counsel to develop/contest evidence; he lacked skill to cross-examine or present testimony	Evidence (officer’s testimony) was essentially uncontested; State argued probationer could speak for himself	Court found factors (no testimony by defendant, confusion about how to present/contest evidence, multiple cases, mistaken beliefs) support remand for proper counsel-analysis or new hearing
Length of revoked probation sentence	Revocation of the balance exceeded statutory maximum (he argued sentence exceeded allowable term)	State conceded the revocation exceeded the statutory maximum	Even if revocation is reentered, resentencing required because OCGA § 42-8-34.1(d) caps revocation at five years

Vaughn v. Rutledge, 265 Ga. 773 (1995) (probationer has limited due-process right to counsel; appointment required when fundamental fairness so demands)
Gagnon v. Scarpelli, 411 U.S. 788 (1973) (factors to consider when deciding whether to appoint counsel in revocation proceedings)
Newbern v. State, 356 Ga. App. 696 (2020) (trial court must apply Gagnon guidelines and state reasons when denying appointed counsel)
Elkins v. State, 147 Ga. App. 837 (1978) (record must state succinct grounds for refusing counsel)
Kitchens v. State, 234 Ga. App. 785 (1998) (remand required where trial court failed to make initial Gagnon determination)
Banks v. State, 275 Ga. App. 326 (2005) (discussing Gagnon factors and when remand is unnecessary)