Law v. StateLaw v. State
Thе appellant, Carlos Gilbert Law, was convicted of possession of cocaine, a violation of §
Initially, we note that, despite the fact that Law had not begun to serve his probationary period, the circuit сourt was authorized to revoke or modify any condition of Law‘s probation. Vogel v. State, 543 So.2d 200 (Ala.Cr.App. 1985); Thomas v. State, 508 So.2d 310 (Ala.Cr.App. 1987).
Law contends for the first time on appeal that the trial court errеd by failing to advise him of his right to request an attorney during the probation revocation proceeding.
In Taylor v. State, 600 So.2d 1080, 1081 (Ala.Cr.App. 1992), this Court held that “the general rules regarding preservаtion should apply to rights granted to a probationer by Armstrong [v. State, 294 Ala. 100, 312 So.2d 620 (1975)] and Rule 27.5 and 27.6, [
Befоre discussing whether Law was entitled to be informed of his right to request counsel, we note that there is no automatic right to counsel in a probation revоcation proceeding. Spence v. State, 766 So.2d 206, 207 (Ala.Cr.App. 1999). Whether a probationer is entitled to counsel must be determined on a case-by-case basis. See Armstrong v. State, supra.
“(b) The probаtioner is entitled to be present at the hearing and to be represented by counsel. Counsel will be appointed to represent an indigent prоbationer upon request:
“(1) If the probationer makes a colorful claim that the probationer has not committed the alleged violation оf 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 reсord or is uncontested, if there are substantial reasons that justify or mitigate the violation and that may make revocation inappropriate, аnd the reasons are complex or otherwise difficult to develop or present.”
This Court addressed a probationer‘s right to be informed of his right to request counsel in Franklin v. State, 545 So.2d 183 (Ala.Cr.App. 1988), wherein we stated:
“The United States Supreme Court spoke to the issue of whether a probationer must be afforded an attorney during probation revоcation proceedings in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). In Gagnon, the Court held the following:
“`It is neither possible nor prudent to attempt to formulate a precise and detailed set of guidelines to be follоwed in determining when the providing of counsel is necessary to meet the applicable due process requirements. . . . Presumptively, it may be said that сounsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request . . . In every case in which a request for counsel at a preliminary or final hearing is refused, the grounds for refusal should be stated succinctly in the record.’
”411 U.S. at 790-91, 93 S.Ct. at 1764. (Emphasis supplied.)
“The record is devoid of any statement of the grounds the trial court may have had for refusing counsel for the appellant. The record is devoid of any evidence that the appellant requested an attorney. However, there is also no evidence to indicate that the appellant was advised by the court at any time during the proceeding that he had a right to request an attorney.
“Therefore, pursuant to the guidelines set forth in Gagnon, supra, and applied by the Alabama Supreme Court in Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), the judgment is reversed and the cause rеmanded to the circuit court. . . .”
545 So.2d at 184. (Emphasis added.)
Other jurisdictions have addressed the right of a probationer to be informed of his right to request counsel. In Kitchens v. State, 234 Ga. App. 785, 508 S.E.2d 176 (Ga.App. 1998), the Georgia Court of Appeals stated:
“`Since a probationer has no inflexible right to appointed counsel under the due process clause of the Fourteenth Amendment, there is no absolute requirement that he be informed of that right. A probationer is entitled only to be informed of his right to request counsel.’ (Punctuation omitted.) [Vaughn v. Rutledge, 265 Ga. 773,] 774(2), 462 S.E.2d 132 [(Ga. 1995)]. . . .”
234 Ga. App. at 785, 508 S.E.2d at 178. (Emphasis added.) In Kitchens, the Court of Appeals of Georgia stated further:
”The State correctly points out that a trial 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.’ Vaughn, supra at 774-775(3), 462 S.E.2d 132. However, the trial court must make the initial determination as to whether a probationer is entitled to counsel based upon the guidelines set forth in Gagnon. Id. at 774-775(3), 462 S.E.2d 132. Because the trial court in that case failed to do so, we must remand this case to the trial court for such a determination. See Vaughn, supra; Elkins [v. State, 147 Ga. App. 837, 250 S.E.2d 535 (Ga.App. 1978)]; Harris
[v. State, 251 Ga. 517, 307 S.E.2d 504 (Ga. 1983)].”
234 Ga. App. at 787, 508 S.E.2d at 179. (Emphasis added.)
In this case, the record does not indicate that the trial court informed Law of his right to request counsel, and it does not indicate that it made an initial determination as to whether Law was entitled to counsel based on thе guidelines set forth in Gagnon and
Our review of the record reveals that, after the State presented several witnesses who testified concerning the alleged probation violatiоns, Law denied committing the alleged violations and claimed that the charges were brought against him because the prison officials wanted to keep him in prison. (R. 10-12.) Additionally, Law argued that he did not “know that [the] alleged behavior would result” in the revocation of his probation. (R. 13.) (Emphasis added.) Although Law argued that he did not realize that the terms of his probation included not receiving any disciplinary violations in prison, the record does not indicate that Law admitted committing the charged violations. Therefore, Law‘s claim may be colorable, or substantial reasons may exist that require the assistance of counsel. While we recognize that the trial court‘s failure to inform Law of his right to request counsel is not necessarily reversible error, we cannot, in light of the sparse record before us, conclude that the error was harmless. See United States v. Hasting, 461 U.S. 499, 508 n. 6, 103 S.Ct. 1974, 1980 n. 6, 76 L.Ed.2d 96 (1983).
Because the record does not indicate that the trial court made an initial determination concerning whether Law would have been entitled to counsel, we remand this case to the trial court to make such a determination. If the trial court determines that counsel was not necessary in these proceedings, it should set forth its findings in a written order. In the event that the trial court determines that Law raised a colorable claim or substantial reasons exist to appoint counsel, in accordance with
REMANDED WITH DIRECTIONS.
Long, P.J., and McMillan, Cobb, and Baschab, JJ., concur.