Ex Parte Abrams, 1070385.

• Decision Date: 02 May 2008
• Docket Number: 1070385.
• Citation: 3 So.3d 819
• Parties: Ex parte Sylvester James ABRAMS. (In re Sylvester James Abrams v. State of Alabama).
• Court: Alabama Supreme Court

3 So.3d 819

Ex parte Sylvester James ABRAMS (In re Sylvester James Abrams v. State of Alabama).

1070385.

Supreme Court of Alabama.

May 2, 2008.

Jackson B. Harrison of The Harrison Firm, LLC, Montgomery, for petitioner.

Troy King, atty. gen., and Andy Scott Poole, asst. atty. gen., for respondent.

LYONS, Justice.

Sylvester James Abrams petitioned this Court for a writ of certiorari to review whether the Court of Criminal Appeals erred in affirming the Montgomery Circuit Court's revocation of his probation on the basis that Abrams's sufficiency-of-the-evidence argument had not been preserved for appellate review. We granted certiorari review to consider whether Abrams's argument that the evidence on which his probation was revoked was insufficient to support the revocation is precluded from appellate review. For the reasons discussed below, we reverse the judgment of the Court of Criminal Appeals.

I. Facts and Procedural History

Sylvester James Abrams pleaded guilty to first-degree sexual abuse. On March 7, 2007, the Montgomery Circuit Court sentenced him, as an habitual offender, to 15 years' imprisonment. The trial court split Abrams's sentence and ordered him to serve three years in prison, with the balance suspended upon the completion of five years' probation and when all other conditions were met. The trial court further stated that the sentence would be a "reverse split," i.e., that the probationary period would be served first.

At the time of the sentencing hearing on the sexual-abuse conviction Abrams was already serving a probationary period for at least one other charge. Two days after the hearing, Abrams's probation officer filed a report declaring Abrams delinquent for: (1) failing to pay court-ordered moneys, (2) failing to avoid injurious habits, and (3) failing to comply with court orders to complete the CAP (Chemical Addiction Program) for drug and alcohol abuse. According to the State, this delinquency report was "filed on two other cases on which Abrams was on probation." State's brief at p. 3 (emphasis added).

As a result of the delinquency report, the trial court held a hearing on March 15, 2007, to determine whether Abrams's probation should be revoked. The record reflects the following exchange occurred at the hearing:

"THE COURT: ... They charged you with a new violation. They allege you were read and explained the conditions of your probation, that you acknowledged by signing the conditions of probation, that you reported to the probation officer and [were] ordered to report for the month of March 2007. And you began paperwork on the probation. They had a drug test or some sort of test. Is that what it was? You came back positive on the drug test. Is that what it was?

"[ABRAMS]: Yes, sir.

"THE COURT: ... [F]ailure to pay all fines, costs, restitution ordered by the Court. Then ... failure to pay court costs, failure to avoid injurious habits, failure to comply with court orders. How does he plead to those charges?

"[DEFENSE COUNSEL]: Judge, there are some issues on the court costs. I think he didn't pay after November 2006, however—

"[ABRAMS]: I think my balance is zero.

"THE COURT: Go ahead.

"[DEFENSE COUNSEL]: He lost his job. He does have the ability to pay at this point. I think the primary thing we would ask the Court is to consider the fact that these are violations of the possession of marijuana in the second degree. [Abrams] was not placed on probation at the time that he admitted to using the marijuana and cocaine. That happened the day before he was sentenced [on the sexual-abuse conviction] in this court. So these are actually violations of the possession of marijuana in the second degree. He was enrolled in CAP. I think he provided paperwork to the probation officer the day he was locked up to prove that he had enrolled in CAP. So we would just ask the Court to take all of that into consideration and reinstate him, allow him to continue with his progress in the CAP program."

(Emphasis added.)

The trial court then asked the probation officer for his position on Abrams's conduct. The probation officer testified that Abrams came to him on March 6, 2007, the day before the trial court sentenced Abrams on the sexual-abuse conviction, and said that he wanted to sign up for the program for alcohol abuse but not for drug abuse, because, he said, he did not have a drug problem. The probation officer then asked Abrams to take a drug test. The probation officer testified that Abrams told him that he had "partied" with friends because of his looming sentencing hearing on the sexual-abuse conviction and that he would likely test positive for drug use if he submitted to a drug test.

After the hearing, the trial court revoked Abrams's probation, not only on the cases in which Abrams was already serving probation when he was sentenced on the sexual-abuse conviction, but also on the sexual-abuse case in which he had been given probation eight days earlier. Specifically, the trial court stated:

"So I am going to revoke your probation, and I am going to revoke it in all these cases, including sexual abuse in the first degree, and sentence you to 15 years in the penitentiary on that case."

The trial court thus placed the original 15-year sentence on the sexual-abuse conviction into effect with instructions that Abrams receive the "maximum" treatment for drug and alcohol abuse while he was incarcerated. The trial court's March 15, 2007, revocation order stated that Abrams

"was advised of charged violations of probation of:

"1. Failure to pay court-ordered monies.

"2. Admitted use of marijuana and cocaine in lieu of drug test.

"3. Failure to complete drug/alcohol treatment program.

"... Based on his admission of charged violations, the Court finds he has violated conditions of probation by failing to refrain from illegal activity."

Abrams then appealed to the Court of Criminal Appeals, arguing that the trial court had erred in revoking his probation on the sexual-abuse conviction because, he said, it erroneously based that revocation on evidence indicating that Abrams had used illegal drugs before he was placed on probation for the sexual-abuse conviction.

The Court of Criminal Appeals affirmed the judgment of the trial court without an opinion. Abrams v. State (No. CR-06-1288, Oct. 26, 2007), ___ So.3d ___ (Ala. Crim.App.2007) (table). In an unpublished memorandum that court held:

"Where a probationer does not object to the sufficiency of the State's evidence before, during, or after the revocation hearing, this issue is not preserved for review on appeal. Holden v. State, 820 So.2d 158 (Ala.Crim.App.2001). In order to preserve the sufficiency of the evidence as an appellate issue, the question must first be raised and ruled upon in the trial court. Reed v. State, 717 So.2d 862 (Ala.Crim.App.1997). The record reflects that after the defense counsel made her argument, the trial court completed the revocation proceeding without responding to or ruling on the counsel's argument. Without a ruling by the trial court, nothing was preserved for appellate review."

We granted certiorari review to consider whether Abrams's argument as to the sufficiency of the evidence is precluded from appellate review.

II. Standard of Review

"`This Court reviews pure questions of law in criminal cases de novo.'" Ex parte Morrow, 915 So.2d 539, 541 (Ala. 2004) (quoting Ex parte Key, 890 So.2d 1056, 1059 (Ala.2003)).

III. Analysis

During the probation-revocation hearing, defense counsel argued that the trial court, in determining whether Abrams had violated his probation, should not consider evidence indicating that Abrams had used illegal drugs before he was placed on probation for the sexual-abuse conviction. Abrams refers to this argument as an "objection," although defense counsel did not use the phrase "I object" or the word "objection" in his argument to the trial court. Defense counsel stated "we would ask the Court ... to consider" that Abrams "was not placed on probation at the time that he admitted to using the marijuana and cocaine." Defense counsel then asked the trial court to "reinstate him." To this Court Abrams argues that the Court of Criminal Appeals erred in holding that his argument as to the insufficiency of the evidence to support the revocation of his probation on the sexual-abuse conviction was not properly preserved for appellate review.

Abrams contends that the holding of the Court of Criminal Appeals conflicts with that court's holding in Ryans v. State, 629 So.2d 799 (Ala.Crim.App.1993). In Ryans, the appellant argued that the evidence was insufficient to convict him of vehicular homicide. The Court of Criminal Appeals affirmed the judgment of the trial court, holding:

"This issue has not been preserved for appellate review because the question of the sufficiency of the evidence was never presented to the trial court. There was no motion for a judgment of acquittal and there was no other motion, objection, or request seeking similar relief."

629 So.2d at 799 (emphasis added). Abrams argues that under Ryans he properly preserved his argument as to the sufficiency of the evidence because defense counsel presented the issue to the trial court. Abrams further argues that the trial court implicitly overruled his "objection" by subsequently revoking his probation solely because he admitted, one day before he was placed on probation on the sexual-abuse conviction, that he had used illegal drugs and that the results of any drug test would be positive.

The State contends that the Court of Criminal Appeals' finding that Abrams's argument as to the sufficiency of the evidence was precluded from appellate review was correct because Abrams failed to make a specific objection on this ground. The State asserts that the Court of Criminal Appeals properly noted in its unpublished memorandum its holding in Holden v. State, 820 So.2d 158, 160 (Ala.Crim.App. 2001), that a...