855 So. 2d 1142
Ala. Crim. App.
2003

Lead Opinion

PER CURIAM.

On or about May 23, 2000, the appellant, Leslie Howard Davis, pled guilty to first-degree criminal mischief. The trial court sentenced him to serve a term of 4 years in prison, but split the sentence and ordered him to serve 14 months in prison followed by 36 months on supervised probation. It then postponed his term of incarceration for 12 months. On or about July 16, 2002, the appellant’s probation officer filed an “Officer’s Report on Delinquent Probationer.” After conducting a hearing, the circuit court revoked his probation. This appeal followed.

The appellant argues that the circuit court erred by not advising him of his right to request counsel to represent him during the revocation proceedings. Rule 27.5(a)(3), Ala. R.Crim. P., provides that, at the initial appearance, the circuit court shall

“[a]dvise the probationer of his or her right to request counsel and appoint counsel to represent an indigent proba tioner if the requirements of Rule 27.6(b) are met.”

Rule 27.6(b), Ala. R.Crim. P., provides:

“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 col-orable 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.”

Rule 27.6(e), Ala. R.Crim. P., provides, in pertinent part:

“Before accepting an admission by a probationer that the probationer has violated a condition or regulation of probation or an instruction issued by the probation officer, the court shall address the probationer personally and shall determine that the probationer understands the following:
“(2) The right under section (b) to be represented by counsel....”

In this case, the record does not indicate that the circuit court advised the appellant of his right to request counsel during the revocation proceedings. Citing Evans v. State, 794 So.2d 1234 (Ala.Crim.App.2000), the State contends that this error was harmless because the appellant admitted he had violated the terms and conditions of his probation and because he did not present any evidence to justify or mitigate the violation. In Evans, we stated:

“On appeal, Evans argues that he was denied the assistance of counsel at his probation revocation hearing, because he says, he was not informed that he could be represented by counsel at that proceeding. ...
“We note initially that there is no automatic right to counsel in a probation revocation proceeding, and the right to counsel wül be decided by the [circuit] court on a case-by-case basis. Law [v. State, 778 So.2d 249 (Ala.Crim.App.2000)].
“ ‘ “[A] [circuit] court’s failure to inform an accused of his right to request counsel is not necessarily fatal to its case. ‘Unless [the probationer’s] revocation proceeding was one wherein the actual appointment of counsel was necessary to satisfy applicable due process requirements of fundamental fairness, then he would not have been entitled to have his request for counsel honored and the mere failure to have informed him of the right to make such a request could not have harmed him.’ ” ’
“Law, 778 So.2d at 251 (quoting Kitchens v. State, 234 Ga.App. 785, 787, 508 S.E.2d 176,179 (Ga.App.1998)).
“At the revocation hearing in the present case, Evans admitted that he had violated the terms of his probation. In addition, there is nothing in the record to support a finding that there were substantial reasons justifying or mitigating the violation. Evans, therefore, has failed to show that he was materially harmed by the absence of counsel. The failure to inform Evans that he could be represented by counsel was not reversible error.”

794 So.2d at 1235-36.

In this case, the delinquency report alleged that the appellant committed the new offenses of driving under the influence (“DUI”), resisting arrest, and possessing an open container of beer. In its written revocation order, the circuit court stated:

“Said revocation is based upon the following acts which occurred subsequent to the order of probation. (1) Defendant admits he obtained a new offense — Driving under the influence of alcohol, a violation of a condition of his probation.”

(C.R. 10.)1 However, during the revocation hearing, the appellant admitted only that he had been drinking while he was on probation. Therefore, the appellant did not admit that he had committed the new offense of DUI. Furthermore, during the revocation hearing, the State did not present any evidence regarding the violations alleged in the delinquency report.

The State argues that “[prohibition of drinking alcoholic beverages is a permissible condition of probation, the violation of which can properly sustain a probation revocation.” (State’s brief at pp. 5-6.) At the conclusion of the revocation hearing, the circuit court stated:

“Pursuant to your admission to drinking while you were on probation, the Court is going to revoke your probation previously granted.”

(R. 5.) However, the delinquency report did not charge the appellant with violation of his probation by merely drinking while on probation.

“The minimal due process to be accorded a probationer before his probation can be revoked includes written notice of the claimed violations of probation.... ”

Hollins v. State, 737 So.2d 1056, 1057 (Ala.Crim.App.1998). Thus, if the appellant did not receive written notice that he was charged with violating his probation by drinking while on probation, the circuit court could not properly revoke his probation on that ground.

Based on the record before us, we cannot conclude that the appellant did not have a colorable claim that he did not commit the alleged violations or that he did not have substantial reasons to justify or mitigate the violations. Therefore, we cannot say that not informing him of his right to request counsel to represent him during the revocation proceedings was harmless error. Accordingly, we must reverse the circuit court’s order revoking the appellant’s probation and remand this case to the circuit court for 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.

REVERSED AND REMANDED.

SHAW, J., concurs specially, with opinion, which McMILLAN, P.J., and COBB, J., join; BASCHAB, J., dissents, with opinion, which WISE, J., joins.

Notes

. If the circuit court revoked the appellant’s probation solely on the ground that he was arrested for DUI, we note that "[a] ‘mere arrest' or the filing of charges is an insuffl-cient basis for revoking one's probation.” Allen v. State, 644 So.2d 45, 45-46 (Ala.Crim.App.1994).



Concurrence Opinion

SHAW, Judge,

concurring specially.

I concur to reverse the trial court’s judgment for the reasons stated in the main opinion. However, I write specially to address the dissenting opinion. I believe that the basic premise (the existence of fundamental principles of due process) on which this Court relied in deciding Law v. State, 778 So.2d 249 (Ala.Crim.App.2000), which was grounded on the same basic premise on which this Court relied in deciding Coon v. State, 675 So.2d 94 (Ala.Crim.App.1995), is sound. Because I believe that fundamental fairness requires that we address the merits of whether a probationer was properly advised of his or her right to request counsel under Rule 27.5(a)(3), Ala.R.Crim.P., even though raised for the first time on appeal, I do not agree that Law should be overruled.

In Puckett v. State, 680 So.2d 980 (Ala.Crim.App.1996), quoted extensively in the dissenting opinion, this Court recognized that one of the underlying rationales for the two long-standing exceptions to the general rule of preservation was the difficulty in raising an objection in the trial court to the adequacy of the written order of revocation and to the failure to hold a probation-revocation hearing. I believe there are similar difficulties with respect to a trial court’s failure to advise a probationer of his or her right to request counsel. If a probationer does not know that he or she has the right to request counsel because the trial court never informed the probationer of that right, he or she cannot possibly know to object to the trial court’s failure to advise the probationer of the right to request counsel. The fact that “situations exist in which a probationer, if not represented by counsel, may not receive the protections guaranteed by Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), in probation revocation proceedings,” Law, 778 So.2d at 250 (footnote omitted), coupled with the inherent inconsistency in requiring a probationer to object to the trial court’s failure to advise him or her of the right to request counsel when the probationer is not aware that he or she has such a right, requires that this Court address the merits of the appellant’s claim, even though it is being raised for the first time on appeal.

McMILLAN, P.J., and COBB, J., concur.





Dissenting Opinion

BASCHAB,

Judge, dissenting.

The appellant argues, for the first time on appeal, that the circuit court erred by not advising him of his right to request counsel to represent him during the revocation proceedings. For the reasons set forth below, I would conclude that his argument is not properly before this court and would affirm the circuit court’s judgment.

We have previously held that arguments that a circuit court did not comply with the requirements of Rules 27.5 and 27.6, Ala. R.Crim. P., must first be presented to the circuit court or they are waived on appeal. For example, in Puckett v. State, 680 So.2d 980 (Ala.Crim.App.1996), Puckett argued that the circuit court did not 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 27.5(a)(1), Ala. R.Crim. P., when it revoked his probation. In addressing that argument, this court held:

“The appellant failed to preserve this issue for our review, because he did not present this issue to the trial court.
“In Morrissey, supra, the United States Supreme Court set forth the minimum constitutional requirements that must be met before parole may be revoked:
“ ‘(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.’
“Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604. The United States Supreme Court extended these rights to probationers in probation revocation proceedings in Gagnon, supra, and the Alabama Supreme Court applied these principles in Armstrong, supra. The procedures for probation revocation proceedings set out in Rule 27.5 and Rule 27.6, Ala. R.Crim. P., are intended to comply with the due process requirements of Morris-sey and Gagnon. The present case presents us with the question of whether claims arising out of these due process requirements can be waived.
“In Taylor v. State, 600 So.2d 1080 (Ala.Cr.App.1992), the appellant alleged that the trial court, in revoking his probation, had failed to comply with the procedures in Rule 27.5 and Rule 27.6, Ala. R.Crim. P. This court stated:
“ ‘The appellant, however, failed to present any of these issues [concerning noncompliance with Rule 27.5 and 27.6] to the trial court. We find no cases other than Ex parte Helton, 578 So.2d 1379 (Ala.1990), and Story v. State, 572 So.2d 510 (Ala.Cr.App.1990), which stand for the proposition that the trial court’s compliance with Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), and Rules 27.5 and 27.6 is not waivable; therefore, the general rules regarding preservation should apply to rights granted to a probationer by Armstrong and Rule 27.5 and 27.6. “It is for the trial court ... to consider and correct, in the first instance, any error which may have been committed or any deficiency in the proceedings.” Willis v. State, 500 So.2d 1324 (Ala.Cr.App.1986). Even constitutional issues may be waived on appeal if not presented to the trial court. Crosslin v. State, 540 So.2d 98 (Ala.Cr.App.1988); Cagle v. State, 504 So.2d 1225 (Ala.Cr.App.1987); Andersen v. State, 418 So.2d 967 (Ala.Cr.App.1982); Moore v. State, 415 So.2d 1210 (Ala.Cr.App.), cert. denied, 459 U.S. 1041, 103 S.Ct. 459, 74 L.Ed.2d 610 (1982). Therefore, we hold that because the appellant failed to present the foregoing issues to the trial court, they are procedurally barred. Stanley v. State, 579 So.2d 19, 20 (Ala.Cr.App.1990) (failure to object to trial court’s taking notice of probation contract in court file waived issue on appeal); Maul v. State, 531 So.2d 35, 36 (Ala.Cr.App.1987) (“matters not objected to are not preserved for review”); Salter v. State, 470 So.2d 1360, 1362 (Ala.Cr.App.1985) (failure to object to certified copy of conviction at probation revocation hearing waived issue on appeal); cf. Ex parte Brown, 540 So.2d 740 (Ala.1989) (trial court’s failure to comply with A.R. Juv. P. 24 waived by failure to object).’
“600 So.2d at 1081 (footnote omitted).
“One of the specific allegations in Taylor was that Taylor was not furnished with a written copy of the alleged probation violation before the hearing; the appellant makes the same allegation in this case. See Rule 27.5(a)(1) (embodying this requirement of Morrissey and Gagnon). Although Taylor’s claim was constitutional, we nonetheless found in Taylor that it was subject to the general rules regarding preservation and, therefore, held that Taylor’s claim was procedurally barred, because it was raised for the first time on appeal.
“This court noted in a footnote in Taylor:
“ “While Ex parte Helton [578 So.2d 1379 (Ala.1990)] implies that the requirement that the trial court state the reasons and the evidence relied upon for revocation is not waivable because of the lack of an objection, the Alabama Supreme Court neither specifically addressed preservation, nor extended its holding to other Armstrong requirements, which are now embodied in Rules 27.5 and 27.6. In Story [v. State, 572 So.2d 510 (Ala.Cr.App.1990)], this court held that the appellant did not waive his right to a revocation hearing by failing to object.’
“600 So.2d at 1081 n. 1. Since our decision in Taylor, this court has recognized, in probation revocation proceedings, only two exceptions to the general rule that issues not presented to the trial court are waived on appeal: (1) the requirement that there be an adequate written order of revocation (see Rule 27.6(f), Ala. R.Crim. P.), as was the situation in Ex parte Helton, 578 So.2d 1379 (Ala.1990), and (2) the requirement that a revocation hearing actually be held (see Rule 27.6(a), Ala. R.Crim. P.), as was the situation in Story v. State, 572 So.2d 510 (Ala.Cr.App.1990). We have consistently held that other claims — even those raising constitutional issues — are waivable. See, e.g., Henry v. State, 675 So.2d 44, 45 (Ala.Cr.App.1994); Harrelson v. State, 651 So.2d 1151, 1152 (Ala.Cr.App.1994); Woodberry v. State, 625 So.2d 1159, 1162 (Ala.Cr.App.1998); and Miller v. State, 611 So.2d 434, 435 (Ala.Cr.App.1992).
“Justice Maddox, in his dissent in Ex parte Helton, stated that the majority’s determination in Helton that it was unnecessary for Helton to object in the trial court in order to preserve for appellate review the alleged inadequacy of the trial court’s written order of revocation was apparently based on the majority’s agreement with Helton’s argument that he could not be required to object in the trial court to the inadequacy of the court’s written revocation order when that order was not entered until after his revocation hearing. See Ex parte Helton, 578 So.2d at 1380 (Maddox, J., dissenting). Presumably, the impediment to raising an objection to an inadequate written revocation order in the trial court is further enlarged by the fact that the Alabama Rules of Criminal Procedure contain no specific provision for post-judgment motions in a probation revocation proceeding (although Justice Maddox indicated in his dissent in Helton that he believed a party could avail himself of Temp. Ala. R.Crim. P. 13 — now Rule 24, Ala. R.Crim. P. — to file a post-hearing motion objecting to an allegedly inadequate written order of revocation).
“This court’s holding in Story that a probationer is not precluded from raising for the first time on appeal the claim that probation was improperly revoked without a revocation hearing is based on the principle that a hearing is mandatory and confers jurisdiction on the trial court, and that, therefore, an order of revocation entered without a hearing is void and may be attacked at any time. See Story, 572 So.2d at 510. Moreover, the difficulty of raising an objection for the record where one’s probation has been revoked without a hearing is obvious. However, the impediments to a defendant’s raising, in the trial court, an objection to the inadequacy of a written order of revocation or to the trial court’s failure to hold a revocation hear ing simply do not present themselves in the case of the other due process requirements of Morrissey and Gagnon or Rule 27.5 and Rule 27.6, Ala. R.Crim. P., and the trial court’s or the state’s alleged failure to comply with these other due process requirements may readily be objected to before or during the course of a revocation hearing.
“The numerous recent cases where this court has made an exception to the general rules of preservation and remanded a case to the trial court when the issue of noncompliance with the requirements of Morrissey and Gagnon or Rule 27.5 and Rule 27.6 was raised for the first time on appeal have been limited to instances involving inadequate written orders of revocation. See, e.g., Wilson v. State, 659 So.2d 970 (Ala.Cr.App.1994); T.H.B. v. State, 649 So.2d 1323 (Ala.Cr.App.1994).”

Puckett, 680 So.2d at 982-84 (emphasis added). See also McDaniel v. State, 773 So.2d 1055 (Ala.Crim.App.2000) (holding that a claim that the circuit court did not comply with the requirements of Rule 27.6(c), Ala. R.Crim. P., must first be presented to the circuit court); Guilford v. State, 748 So.2d 229 (Ala.Crim.App.1999) (holding that a claim that the circuit court did not comply with the requirements of Rule 27.6(c), Ala. R.Crim. P., must first be presented to the circuit court); Colbert v. State, 736 So.2d 682 (Ala.Crim.App.1998) (noting that the general rules of preservation apply to the rights afforded to a probationer by Armstrong and Rules 27.5 and 27.6, Ala. R.Crim. P.); Frith v. State, 729 So.2d 352 (Ala.Crim.App.1998) (holding that a claim that the circuit court did not comply with the requirements of Rule 27.6(c), Ala. R.Crim. P., must first be presented to the circuit court); Trice v. State, 707 So.2d 294, 297 n. 3 (Ala.Crim.App.1997) (holding that a claim that the circuit court did not advise a probationer of the rights set forth in Rule 27.6(c), Ala. R.Crim. P., will not be reviewed on appeal absent an indication in the record that that issue has been preserved for appeal); Davis v. State, 689 So.2d 225, 226 (Ala.Crim.App.1996) (noting that the general rules of preservation apply to the rights afforded to a probationer by Armstrong and Rules 27.5 and 27.6, Ala. R.Crim. P.); Henry v. State, 675 So.2d 44 (Ala.Crim.App.1994) (noting that the general rules of preservation apply to the rights afforded to a probationer by Armstrong and Rules 27.5 and 27.6, Ala. R.Crim. P.).

However, in Law v. State, 778 So.2d 249, 250 (Ala.Crim.App.2000), Law argued, for the first time on appeal, that the circuit court “erred by failing to advise him of his right to request an attorney during the probation revocation proceeding.” Nevertheless, this court addressed the argument, explaining:

“In Coon v. State, 675 So.2d 94 (Ala.Cr.App.1995), the appellant contended for the first time on appeal that the trial court erred in allowing him to represent himself without first holding a hearing to determine if he had voluntarily relinquished his right to counsel in accordance with Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). This Court, recognizing that ‘in certain cases in which fundamental fairness — the touchstone of due process [requires] that the State provide at its expense counsel for indigent probationers or parolees,’ addressed the merits of the issue. 675 So.2d at 96. We conclude, as we did in Coon, that fundamental fairness mandates that we address the merits of Law’s contention that he was not informed of his right to counsel. As the United States Supreme Court noted in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), situations exist in which a probationer, if not represented by counsel, may not receive the protections guaranteed by Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), in probation revocation proceedings. Therefore, we address the merits of Law’s contention that he was not informed of his right to counsel.”

Law, 778 So.2d at 250 (footnote omitted).

However, this court’s characterization in Law of the holding in Coon was erroneous. In Coon, contrary to the assertion in Law, this court did not address Coon’s argument because of a “recognition] that ‘in certain eases ... fundamental fairness— the touchstone of due process [requires] that the State provide at its expense counsel for indigent probationers or parolees.’ ” 778 So.2d at 250. Rather, in that case, Coon, who had represented himself during the probation revocation proceedings, argued, for the first time on appeal, that “the [circuit] court erred in allowing him to represent himself without first holding a hearing pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), to determine if he had [voluntarily] relinquished his right to counsel.” Coon, 675 So.2d at 95. That argument required us to determine whether Coon had a right to be represented by counsel during the revocation proceedings and, if so, whether he knowingly and voluntarily waived that right. Accordingly, we quoted at length a discussion about the right to counsel in probation revocation proceedings from Gagnon v. Scarpelli, including the statement that “there will remain certain cases in which fundamental fairness — the touchstone of due process — will require that the State provide at its expense counsel for indigent probationers or parolees.” 411 U.S. at 790, 93 S.Ct. at 1763. Therefore, the statement in Law that “[w]e conclude, as we did in Coon, that fundamental fairness mandates that we address the merits of Law’s contention that he was not informed on his right to counsel” was apparently based on a misreading of Coon.

Furthermore, in Law, we also cited Gagnon v. Scarpelli for the proposition that

“situations exist in which a probationer, if not represented by counsel, may not receive the protections guaranteed by Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), in probation revocation proceedings.”

Law, 778 So.2d at 250 (footnote omitted). However, those considerations are not implicated in a case, like the present case, in which an appellant argues only that the circuit court did not advise him of his right to request counsel. Instead, such concerns are better addressed in cases in which the appellant argues that he actually had a right to be represented by counsel and that he did not knowingly and voluntarily waive that right.

Finally, this court’s treatment of this issue in subsequent cases has not always been consistent with Law. In Evans v. State, 794 So.2d 1234, 1235-36 (Ala.Crim.App.2000), we addressed Evans’ claim that “he was denied the assistance of counsel at his probation revocation hearing, because he says, he was not informed that he could be represented by counsel at that proceeding,” even though he had raised that claim for the first time on appeal. (Emphasis added.) However, we further held that his argument “that he was denied due process rights when he was not informed of his right to request appointed counsel ” was not preserved because he had raised it for the first time on appeal. Evans, 794 So.2d at 1236 (emphasis added).

For these reasons, I would hold that a claim that the circuit court did not advise a probationer of his right to request counsel during a revocation proceeding must first be presented to the circuit court or it is waived on appeal. This court’s holding in Law was an ill-advised departure from well-established caselaw that the general rules of preservation apply to probation revocation proceedings and to the rights enumerated in Rules 27.5 and 27.6, Ala. R.Crim. P. Therefore, I would expressly overrule Law and any prior holdings to the contrary, see, e.g., Evans v. State, 794 So.2d 1234 (Ala.Crim.App.2000), and affirm the circuit court’s judgment.

WISE, J., concurs.