Gosa v. State, CR-21-0460

CourtAlabama Court of Criminal Appeals
PartiesScotty Dewayne Gosa v. State of Alabama
Docket NumberCR-21-0460
Decision Date02 September 2022

Scotty Dewayne Gosa

State of Alabama

No. CR-21-0460

Alabama Court of Criminal Appeals

September 2, 2022

Appeal from Winston Circuit Court (CC-15-113.72)


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...

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