Mulkey v. State

• Docket Number: CR-2022-1234
• Decision Date: 03 May 2024
• Parties: Steven Brad Mulkey v. State of Alabama
• Court: Alabama Court of Criminal Appeals

1

Steven Brad Mulkey v. State of Alabama

No. CR-2022-1234

Alabama Court of Criminal Appeals

May 3, 2024

Appeal from Calhoun Circuit Court (CC-18-1367.71)

COLE Judge.

Steven Brad Mulkey appeals the Calhoun Circuit Court's judgment revoking his probation based on his failing to complete a required rehabilitation program.^[1] We affirm.

Facts and Procedural History

Mulkey was convicted of first-degree burglary, a violation of § 13A-7-5, Ala. Code 1975, and was sentenced to 120 months in prison. That sentence was split and Mulkey was ordered to serve 18 months' imprisonment, and the balance of the sentence was suspended for Mulkey to serve 102 months of probation. Mulkey began serving probation on January 16 2021, and, on May 23, 2022, he received a 25-day "dunk" for violating his probation by failing to report as directed. On August 18, 2022, Mulkey's probation officer filed a delinquency report, alleging that Mulkey had again violated his probation by failing to submit to treatment and monitoring, another technical violation. In 2021, Mulkey was "being prosecuted on a new criminal charge" and was ordered to complete the "Seven Springs" rehabilitation program as a condition of reinstatement of his probation. Mulkey, however, left the program before completion, resulting in "Mulkey's third delinquency report since being placed on probation." (C. 5.) Mulkey was arrested on August 25, 2022, for absconding.

At Mulkey's initial appearance before the circuit court, he was advised of his "rights to and under [a] probation revocation hearing." (C. 11.) Mulkey stated that he understood his rights and that he wanted a revocation hearing. The circuit court appointed counsel to represent Mulkey and set Mulkey's revocation hearing for September 21, 2022.

Mulkey was present with counsel at his revocation hearing. The circuit court asked Mulkey's counsel if he and Mulkey had reviewed the report. Mulkey's counsel acknowledged looking at the report and stated: "I would like to present, you know, Mr. Mulkey was in rehab at one point, and he did leave that rehab. However, [Mulkey] has been accepted to another rehab ... That's correct." (R. 3 (emphasis added).) Mulkey's counsel then asked the circuit court to give Mulkey another opportunity to comply with probation and asked that Mulkey be "release[d] on the condition that he does go to Seven Springs and he does mandatorily complete that program." (R. 3.) Mulkey's counsel also told the circuit court that, if Mulkey is given another chance and again "leaves" the program, "then he needs to be right back where he is right now wearing this jump suit." (R. 3.) Mulkey's probation officer volunteered that after Mulkey left the court-ordered program at "Seven Springs," Mulkey "showed up in [his] office saying he was given permission by his attorney to leave." (R. 4.) Mulkey's counsel vehemently denied giving "such advice." The circuit court stated its understanding that "there's no question [Mulkey] did not submit to treatment and monitoring in terms of violation of [probation] condition number 10." (R. 4.) Mulkey's counsel again responded with an admission that "[Mulkey's] learned his lesson, Judge." (R. 4.) Both Mulkey and his counsel proceeded to inform the court how many days Mulkey had spent in jail since his arrest. The circuit court asked Mulkey whether "you still feel like you need a hearing for the record because the probation officer is still recommending [Mulkey] be revoked." (R 4.) The State's counsel responded "[t]hat would be their [Mulkey's and his counsel's] decision," but that he was "ready to go forward." (R. 4.) Mulkey's counsel immediately responded with yet another admission that "[Mulkey's] owned up to [not completing the program], Judge. We're not trying to duck responsibility." (R. 5 (emphasis added).) Mulkey's counsel then instructed Mulkey to "apologize right now for telling them I said something I absolutely did not say." (R. 5.) Mulkey immediately responded, "I apologize for that. And for the record I didn't say that he told me I could leave. I said I called him after I left." (R. 5 (emphasis added).) Counsel confirmed that Mulkey "did do that," i.e., telephone counsel after he left the program. (R. 5.)

The circuit court summarized what had been said at the hearing, noting that Mulkey "is present in the courtroom ... and he's represented by counsel, ... and there has been an admission that he has, in fact, failed to submit to treatment and monitoring in violation of condition number 19, charge number one." (R. 5.) Mulkey and the court then discussed how much time Mulkey had already spent in prison. The circuit court concluded, based on "the stipulations by counsel for the defendant and the defendant himself being present in court," that the court was "reasonably satisfied [Mulkey] violated condition number 19, failure to submit to treatment and monitoring, of . his probation"; therefore, the circuit court revoked Mulkey's probation. (R. 7.) Neither Mulkey nor his counsel made any additional statement, and the circuit court's written order revoking Mulkey's probation again expressly noted that Mulkey had admitted violating the condition of his probation.

On October 18, 2022, Mulkey moved the circuit court to reconsider the revocation of his probation. Mulkey's motion never alleged any error in his probation-revocation proceeding but only offered "mitigating factors and circumstances" as to why his "exit of '7 Springs Rehabilitation Program' should not result in his incarceration," namely that he "ha[d] been punished enough" and that, "with the exception of the twenty-five day 'Dunk' pursuant to this Court, [he] had proven himself an exemplary patient at 7 Springs." (C. 25, 30.) In short, Mulkey merely asked the circuit court, as he did at the hearing, to give him another opportunity to comply with the conditions of probation. This appeal follows.

Standard of Review

"The general rules of preservation apply in probation revocation proceedings." Singleton v. State, 114 So.3d 868, 870 (Ala.Crim.App.2012 (citing Puckett v. State, 680 So.2d 980 (Ala.Crim.App.1996)). It is well settled that "'to preserve an issue for appellate review the issue must be timely raised and specifically presented to the trial court and an adverse ruling obtained.'" Cochran v. State, 111 So.3d 148, 153-54 (Ala.Crim.App.2012) (quoting Mitchell v. State, 913 So.2d 501, 505 (Ala.Crim.App.2005)). That a revocation hearing be held is a recognized exception to the general rules of preservation. See Singleton v. State, 114 So.3d 868, 870 (Ala.Crim.App.2012) (recognizing only four exceptions "to the preservation requirement in probation-revocation proceedings: (1) that there be an adequate written or oral order of revocation,[]; (2) that a revocation hearing actually be held, [] (3) that the trial court advise the defendant of his or her right to request an attorney[, and] ... [(4)] that the circuit court erred in failing to appoint counsel to represent the defendant during probation-revocation proceedings") (emphasis added) (internal citations omitted).

In addition, a probation violation need not be proven "beyond a reasonable doubt." Rather, the circuit court need only be "reasonably satisfied" that a condition was violated. Singleton v. State, 209 So.3d 529, 533 (Ala.Crim.App.2015). Moreover, we will not disturb a circuit court's decision in a probation-revocation proceeding unless the circuit court has abused its discretion. See, e.g., Mantez v. State, 83 So.3d 583, 584 (Ala.Crim.App.2011). A circuit court "abuses its discretion only when its decision is based on an erroneous conclusion of the law or where the record contains no evidence on which it could have rationally based its decision." Id. at 585 (citations omitted).

Analysis

Mulkey argues on appeal that the circuit court erred by failing to hold a revocation hearing because, he says, a proper waiver was not made and, moreover, that the circuit court failed to comply with Rules 27.5(b) and 27.6(c), Ala. R. Crim. P., in finding that Mulkey waived his right to a hearing. The State argues that Mulkey's arguments are not preserved for appellate review because, it says, Mulkey never argued below that he was deprived of a hearing, that he did not waive his right to a hearing, or that the waiver rules were not followed. The State also contends that this Court has ceased recognizing a "distinction between no hearing and an 'inadequate' hearing" in determining whether an argument is preserved for appellate review. (State's brief, p. 19.) The State further contends that a circuit court's failure to comply with the waiver requirements of Rule 27 is not a recognized exception to the rules of preservation. In sum, the State argues that, if a hearing "was actually held," any infirmities in that hearing, including the validity of a waiver, are not subject to appellate review unless preserved below. (State's brief, pp. 19-20.) The State then asks us to "return to [] long established jurisprudence and recognize that alleged inadequacies" in Mulkey's case -- whether a hearing was waived and whether the circuit court failed to comply with the waiver rules in Rules 27, Ala. R. Crim. P. -- were not preserved for appellate review. (State's brief, p. 20.) We now take this opportunity to clarify the application of the recognized exception to the rules of preservation that a probation-revocation hearing must occur.

I. Is Mulkey's argument that he did not waive a revocation hearing preserved?

The State contends that Mulkey's argument that he did not waive a revocation hearing is not preserved for appellate review. More specifically, the State argues that the following are not exceptions to the general preservation requirements: (1) the...