Appeal
from Winston Circuit Court (CC-15-113.72)
MINOR
JUDGE
Scotty
Dewayne Gosa appeals the Winston Circuit Court's
revocation of his probation because, he argues, the circuit
court failed to conduct an adequate revocation hearing. The
State, however, claims that Gosa's argument is not
properly before this Court for appellate review
because he did not raise this argument in the circuit court.
We hold that Gosa's argument is properly before this
Court, and we reverse the circuit court's judgment and
remand this case to the circuit court for proceedings
consistent with this opinion.
Facts
and Procedural History
It
appears from the limited record on appeal that in 2017 Gosa
was convicted of first-degree unlawful manufacture of a
controlled substance, see § 13A-12-218, Ala
Code 1975, and was sentenced to 10 years imprisonment. That
sentence was split, and he was ordered to serve 2 years
incarceration followed by 4 years' supervised probation.
(C. 13, 18; R 2-3.) Gosa began serving his term of probation
in May 2019. (C. 18.)
In
February 2022, Gosa's probation officer moved to revoke
his probation, alleging that Gosa had violated the terms of
his probation by absconding, by failing to submit to
treatment and monitoring, by failing to report, and by
failing several drug tests. (C. 18-20.)
On
February 28, 2022, Gosa, represented by counsel, appeared
before the circuit court. During that appearance, the
following occurred:
"The Court: Scotty Gosa. All right, Mr. Gosa, you are
here with your attorney. Have you read your report?
"[Gosa]: Yes, Your Honor.
"The Court: It looks like-let me see if I can find-you
got a 10-year sentence, two years imposed, eight suspended
probation for four.
"And the first charge is absconding. Absconding is more
than not just reporting; they can't find you.
"And the second charge is a technical violation, did not
complete referral.
"And then three is court referral.
"Four is that you were positive on your drug tests from
time to time, which indicates you're still using drugs.
"Is the report correct?
"[Gosa]: For the most part.
"[Gosa's counsel]: Your Honor, he was actually in
the hospital in December. And that's what he is saying is
the reason why he would not report, and he does have a note
from Lakeland Hospital.
"[Gosa]: I missed six days of work, but I was sick for
the whole month.
"The Court: Uh-huh.
"[Gosa]: I got a good job working for Dan Hogan.
"[Gosa's counsel]: And he …
"The Court: All right. So, I'm looking at the
report, and it looks like you didn't report on December
7th of '21. Were you in the hospital then?
"[Gosa]: No, but I was sick.
"The Court: You were sick.
"[Gosa]: I had talked to them on the phone.
"The Court: Did you call them?
"[Gosa]: I come down there actually on the 30th of
December, but they weren't there that day.
"The Court: Okay, I'm talking about on the 7th of
December?
"[Gosa]: No. Yeah, I was sick though.
"[Gosa's counsel]: Did you call them on the 7th?
"[Gosa]: I don't think so.
"The Court: 12/21 they tried to call you and they
couldn't get you on the phone. They mailed you a letter
that same day, says they spoke with your mom on that day
left a message with her, gave her a new phone number, was
also given a new phone number, they placed a call to the new
number and left a message.
"Then on 12/22 it says you called the probation office
and stated that you missed reporting because you were sick
but was currently at work and would call back on 12/23, and
you never called back.
"Let's see what else it says. It says you called the
probation office on 12/29, spoke with Officer Morrison after
you received the late reporting letter, and you were
instructed to report 12/29 for a drug test, and you
didn't report then. All that true?
"[Gosa]: I was sick on them-on them-on the day that I
talked to him on 12/29.
"[Gosa's counsel]: Your Honor, he has the excuse is
dated for 12/27 of '21, saying that he can return to work
two days after that.
"The Court: One of these phone calls 12/23, you were at
work, weren't you?
"[Gosa]: But I don't remember talking to them but
one time and that was on 12/29.
"The Court: All right. What do you think, [Prosecutor]?
"[Prosecutor]: Judge, on top of the December stuff, Mr.
Gosa then failed to report in January.
"The Court: Uh-huh.
"[Prosecutor]: You know, we've not heard anything
about an excuse for January, but just failed to report then.
"[Gosa]: I got locked up.
"[Prosecutor]: I think Mr. Gosa has a history of not
reporting to probation. I think there's multiple times
where they've had trouble getting him to come on the
right dates and the right times. If the Court wishes to have
a formal hearing on this, I think we've got all of the
people we need here today and we could do that.
"The Court: All right, Mr. Gosa, [the Prosecutor's]
correct. It looks like [you] failed to report on January the
4th. They talked to your mom on January the 11th to get you
to report. She said she would give you the message.
"[Gosa's counsel]: Your Honor, he was rearrested on-
"What were you arrested on?
"[Gosa]: It was-first, it was child support then.
"[Gosa' counsel]: Child support on-in January.
"The Court: What date in January?
"[Gosa]: The 12th or the 13th, somewhere around there.
"The Court: Yeah, these dates are the 4th and the 11th
so that would have been before any arrests. Why don't we
take some testimony at the end of the docket.
"….
"[Gosa's counsel]: If it's okay, Your Honor, Mr.
Gosa does not want a formal hearing. He just would just like
to add to his plea to the Court that he's never been on
Community Corrections before. He had back child support.
"[Gosa]: I have kids. I have a good job. One more shot
is what I would like, please.
"[Gosa's counsel]: He would like to be able to be
placed and to serve his sentence on Community Corrections.
"The Court: So, is the report correct, Mr. Gosa?
"[Gosa]: Yes, sir.
"The Court: Court finds to a reasonable satisfaction
that the probationer has violated the conditions of
probation. …
"….
"The Court finds no measure short of confinement will
avoid depreciating the claimed violation. Your probation is
revoked, and you will serve with the Department of
Corrections."
(R. 2-9.)
On the
same day, the circuit court memorialized its decision in a
written order, finding that Gosa violated the terms of his
probation by committing the "technical violation"
of "absconding" when Gosa "stipulate[d] to the
correctness" of the delinquency report.[1] (C. 21.) Gosa
filed a pro se notice of appeal, and the circuit court
appointed counsel to represent Gosa on appeal. (C. 26,
29-32.)
Gosa
argues that the circuit court erred when it revoked his
probation because, he says, the court failed to hold an
adequate probation revocation hearing. Gosa contends that
"although it appears that [he] expressed a desire to
forego a formal hearing, Gosa did not admit that he had
actually absconded supervision; instead Gosa merely
admitted to the accuracy of the delinquency report."
(Gosa's brief, p. 11; emphasis in
original.) Thus, Gosa claims, he did not "waive his
right to a revocation hearing because he did not admit that
he had 'committed a new offense' that would
constitute a probation violation." Id. In turn,
Gosa argues that "the allegations in the delinquency
report were insufficient" evidence of absconding and
that the court received no other evidence to support the
revocation of his probation. (Gosa's brief, pp. 11-12.)
The
State argues that Gosa's argument is not properly before
this Court for appellate review. The State claims: (1) that
Gosa properly waived his right to a revocation hearing; (2)
that Gosa "admit[ted] to the truth of the probation
violation when he admitted to the accuracy of the delinquency
report"; and (3) that Gosa did not object "to the
report or to [the circuit] court's ruling based on his
waiver and agreement to the report." (State's brief,
p. 5.)
Before
this Court can address the merits of Gosa's argument, we
must first determine whether his argument is properly before
this Court.
"'The general rules of preservation apply in
probation-revocation proceedings. Puckett v. State,
680 So.2d 980 (Ala.Crim.App.1996). This Court has recognized
three exceptions to the preservation requirement in
probation-revocation proceedings: (1) that there be an
adequate written or oral order of revocation, McCoo v.
State, 921 So.2d 450 (Ala. 2005); (2) that a revocation
hearing actually be held; and (3) that the trial court advise
the defendant of his or her right to request
an attorney. Croshon v. State, 966 So.2d 293
(Ala.Crim.App.2007). Our Supreme Court recognized a fourth
exception to the preservation requirement that allows a
defendant to raise for the first time on appeal the
allegation that the circuit court erred in failing to appoint
counsel to represent the defendant during
probation-revocation proceedings. See Ex parte Dean,
57 So.3d 169, 174 (Ala. 2010).'"
Allen v. State, 285 So.3d 864, 865-66
(Ala.Crim.App.2019) (quoting Singleton v. State, 114
So.3d 868, 870 (Ala.Crim.App.2012)).
Although
Gosa did not argue in the circuit court that the revocation
hearing was inadequate, he contends that his argument falls
within the exception to the preservation requirement that a
revocation hearing actually be held. The State argues that
Gosa's argument amounts to (1) a challenge of whether the
circuit court properly complied with Rules 27.5(b) and
27.6(c), Ala. R. Crim. P.,[2] in finding that Gosa waived his
right to a revocation hearing and admitted to violating his
probation, and (2) a challenge to the sufficiency of the
evidence that supported the revocation of his...