Steven Brad Mulkey v. State of Alabama (Calhoun Circuit Court: CC-18-1367.71) ( 2024 )

Rel: August 23, 2024
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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Alabama Court of Criminal Appeals
OCTOBER TERM, 2023-2024
_________________________
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_________________________
Steven Brad Mulkey
v.
State of Alabama
Appeal from Calhoun Circuit Court
(CC-18-1367.71)
On Application for Rehearing
COLE, Judge.
The opinion issued on May 3, 2024, is withdrawn, and the following
is substituted therefor.
CR-2022-1234
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
1Section 15-22-54(e)(1)(a), Ala. Code 1975, provides that probation
shall be revoked for a technical violation "[i]f the underlying offense was
a violent offense as defined in Section 12-25-32 and a Class A felony."
Because Mulkey's underlying offense was a first-degree burglary, a Class
A felony under § 13A-7-5, Ala. Code 1975, and a violent offense under §
12-25-32(15)(a)(22), Ala. Code 1975, Mulkey was subject to revocation
upon the circuit court's finding to a "reasonable satisfaction" that he
committed a technical violation.
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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
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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
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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
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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
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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,
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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
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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 adequacy of a "hearing," (2)
the adequacy of a waiver, and (3) the satisfaction of the Rule 27 waiver
requirements. We address each of the State's contentions separately.
A. What constitutes a hearing?
The State first argues that there should be a "distinction between
no hearing and an 'inadequate' hearing" and "only the complete failure
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to conduct a hearing" should be addressed on appeal when unpreserved
below. (State's brief, pp. 17, 19.) Contrary to the State's contention,
however, a probationer's mere appearance before a circuit court does not
constitute a "hearing" that would satisfy the "opportunity to be heard,"
which the minimum standards of due process require.
The Alabama Supreme Court clearly settled this matter in Ex parte
Anderson, 999 So. 2d 575, 578 (Ala. 2008), in which that Court recognized
that, if a probationer appears before the circuit court (which is a hearing
in only the most rudimentary understanding of that word) and denies
committing a probation violation, he or she must be afforded counsel and
a revocation hearing. The Alabama Supreme Court clarified that to
constitute a revocation hearing, the proceeding must encompass the full
meaning of that word. In sum, when a probationer denies the factual
basis of the charges that he or she violated probation, the minimum
standards of due process require that a probationer be provided " 'an
opportunity to adduce proof and to argue (in person or by counsel) as to
the inferences flowing from the evidence.' " Id. (emphasis added)
(quoting Fiorella v. State, 121 So. 2d 875, 878 (Ala. 1960)). Indeed, this
is how "[a] hearing ordinarily is defined." Id. (quoting Fiorella, 121 So.
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2d at 878). Without this opportunity, or a valid waiver of that
opportunity, " 'no hearing was held.' " Id. (quoting Anderson v. State, 999
So. 2d 573, 575 (Ala. Crim. App. 2007) (Welch, J. dissenting)). This Court
has properly followed Ex parte Anderson, repeatedly recognizing that if
a probationer does not admit his violations, there is no waiver, and, if
there is no waiver and no evidence is presented, then whatever "hearing"
occurred is "no hearing" at all. See, e.g., Bailey v. State, 372 So. 3d 560(Ala. Crim. App. 2022); Wilkerson v. State, 372 So. 3d 573 (Ala. Crim.
App. 2022); Williford v. State, 329 So. 3d 86, 91-92 (Ala. Crim. App. 2020);
Allen v. State, 285 So. 3d 864 (Ala. Crim. App. 2019); and Saffold v. State,
77 So. 3d 178 (Ala. Crim. App. 2011).
In sum, a "hearing" is a hearing only if it satisfies the minimum
standards of due process -- an opportunity to adduce proof and make
arguments.
B. Does the validity of a waiver constitute an exception to the
rules of preservation?
The State's second argument, that the lack of a valid waiver must
be preserved to be addressed on appeal, also fails. The Alabama Supreme
Court equally settled in Ex parte Anderson, supra, that the validity of a
waiver necessarily constitutes an exception to the preservation rules.
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See id. at 578 ("when he denied the charges, he was not afforded counsel
and a revocation hearing for a later date was not set … a revocation
hearing was not held and [] Anderson did not waive a revocation
hearing"). In holding "that a revocation hearing was not held and that
Anderson did not waive a revocation hearing," the Alabama Supreme
Court reversed this Court's holding that Anderson's revocation was due
to be affirmed because he had not preserved the issues he raised on
appeal. Id. at 577-79. The Alabama Supreme Court expressly noted that
"the failure to hold a revocation hearing is one of the exceptions to the
general rule requiring a defendant to preserve his arguments for appeal
by first raising them in the trial court." Id. at 578. The Court, thus,
implicitly held that whether a valid waiver occurred was necessarily
included within the preservation exception that a hearing occur. Clearly,
under Ex parte Anderson, the argument that a hearing was not waived
equates to an argument that no hearing was held; and, it is well settled
that whether a hearing was held need not be preserved for appeal
because minimum standards of due process must be satisfied regardless
of preservation. See Morrissey v. Brewer, 408 U.S. 471 (1972) (to satisfy
minimum constitutional requirements before revoking parole, a parolee
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is entitled to, among other rights, the "opportunity to be heard in person
and to present witnesses and documentary evidence" and "to confront
and cross-examine adverse witnesses") (emphasis added), and Gagnon v.
Scarpelli, 411 U.S. 778 (1973) (applying the principles established in
Morrissey to probation revocations).
In sum, whether the waiver of a revocation hearing satisfies
minimum standards of due process must be addressed on appeal
regardless of whether the argument was presented below because it falls
within the preservation exception that a hearing be held.
C. Does a waiver's compliance with the Rule 27 requirements
also fall within the preservation exception that a hearing be
held?
Although the Alabama Supreme Court's holding in Ex parte
Anderson makes clear that the constitutional validity of a waiver falls
within the exception to the preservation rules that a hearing be held, Ex
parte Anderson did not address, implicitly or otherwise, whether a
waiver's compliance with the Rule 27 requirements must be preserved
for appeal. The Alabama Supreme Court prefaced its waiver
consideration by noting that a revocation hearing may be waived if a
probationer is "given 'sufficient prior notice of the charges and sufficient
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notice of the evidence to be relied upon' and if he 'admits, under the
requirements of Rule 27.6(c), that he committed the alleged violation.' "
Id. at 577 (quoting Rule 27.5(b), Ala. R. Crim. P.). However, although the
Alabama Supreme Court quoted Rule 27.5(b), it did not address whether
those requirements had been met. Rather, it reversed this Court's
holding that Anderson had not preserved his argument for appeal
because Anderson denied the violations and never told the court that he
was waiving his right to a revocation hearing. Id. at 577-78. The Court
did not analyze Anderson's waiver based on his knowledge of the evidence
relied upon, only his notice of the charges -- when he was presented with
the charges, Anderson denied them. Id. at 576. Moreover, the Alabama
Supreme Court did not analyze Anderson's waiver under the
requirements of Rule 27.6(c) in holding that "a revocation hearing was
not held and that Anderson did not waive a revocation hearing." Id. at
578. Thus, Ex parte Anderson indicates only that Rule 27.5(b)
memorializes the minimum due-process requirements -- notice of the
violation and an admission -- for a waiver to be valid.
The State argues, however, that our recent jurisprudence has
created "confusion" regarding whether the failure of a waiver to comply
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with Rule 27 constitutes an exception to the preservation rules in a
probation-revocation proceeding. According to the State, this Court
appears to have extended the recognized preservation exceptions in
probation-revocation cases to "nonjurisdictional" infirmities, like the
validity of a waiver. We acknowledge that the interplay between what is
required by the minimum standards of due process and what is required
by the rules governing probation revocations may have created some
confusion in the application of the preservation rules and the recognized
exceptions to those rules. Thus, we take this opportunity to review our
recent cases regarding the preservation of a lack-of-proper-waiver
argument.
In Williford v. State, 329 So. 3d 86, 91-92 (Ala. Crim. App. 2020),
this Court held that Williford did not waive her right to a revocation
hearing because she did not admit to violating her probation. Rather,
Williford admitted only "that she had been arrested, which is not a
sufficient basis for the revocation of probation." Id. at 92. As did the
Supreme Court in Ex parte Anderson, this Court in Williford cited Rule
27.5(b) and noted that, despite Williford's expression that she wanted to
"forgo a revocation hearing," "the record must reflect that Williford was
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given sufficient notice of the charges and evidence against her and that
she admitted to a violation of the conditions of her probation." Id.
Notably, this Court did not rely on the Rule 27.6(c) waiver requirements.
Moreover, in reversing the judgment and remanding the case for a
hearing, we emphasized the most crucial aspect of waiver -- that Williford
"refused to do that which is required in order to waive such a hearing,
i.e., admit that she had violated a condition of her probation." Id. at 93.
Our holding, like the Alabama Supreme Court's in Ex parte Anderson,
recognized that to constitute a valid waiver, the probationer must admit
the alleged violation, and, certainly, to admit a violation, the probationer
must be aware of what the alleged violation is. Finally, Williford noted
that "it is incumbent upon the circuit court to ensure" that any future
waiver comply with Rules 27.5 and 27.6. Id.
In Bailey v. State, 372 So. 3d 560, 565 (Ala. Crim. App. 2022), this
Court reversed a probation revocation, noting "that the court failed to
conduct a probation-revocation hearing in compliance with Rule 27.6."
This Court specifically explained, however, that Bailey's revocation was
reversed because, at the "hearing," "Bailey denied that he absconded
from supervision as alleged in the delinquency report" and "explained
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why he did not believe he had absconded." Id. at 564 (emphasis added).
Then, despite Bailey's denials, "[t]he State presented no evidence at the
hearing regarding the allegation of absconding." Id. at 564-65. This
Court further noted that "the record does not indicate that Bailey waived
his right to a probation-revocation hearing pursuant to Rule 27.5(b)." Id.
To the extent such language in Bailey could be misread as suggesting
that a court's failure to comply with Rule 27 may be raised on appeal
without being preserved below, it is dicta. Bailey provided no reason for
this Court to distinguish a waiver's compliance with Rule 27, the failure
of which must be preserved to be addressed on appeal, from a waiver that
satisfies the minimum standards of due process, a determination
excepted from general preservation requirements. Our holding that no
revocation hearing was held was clearly based on Bailey's repeated
denials of the charge of absconding. In short, Bailey never admitted to
the violation and, thus, never attempted a "waiver." And, the State never
presented evidence. Thus, this Court held in Bailey that no "hearing"
occurred.
In Wilkerson v. State, 372 So. 3d 573 (Ala. Crim. App. 2022), the
probationer again argued that a revocation hearing was not held, a
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recognized exception to the general preservation rules, because he did not
admit to violating his probation, he did not waive his right to a hearing,
and the State presented no evidence. We agreed that no waiver occurred
and, thus, no hearing had been held because Wilkerson did not admit a
violation but, rather, "tried to present a defense to the failed drug tests."
Id. at 579. Although this Court recognized that a person may waive his
or her right to a revocation hearing under Rules 27.5 and 27.6, our
holding that no waiver occurred did not depend on any analysis of the
specific Rule 27.6(c) requirements. Instead, we quoted from our earlier
decision in Gann v. State, 337 So. 3d 1217 (Ala. Crim. App. 2021), in
which we held that no valid waiver occurred because the probationer did
not admit to a violation.
" '[B]ecause there was not an admission of the truthfulness of
the allegations, there was not a sufficient basis for the
revocation of [Wilkerson]'s community-correction sentence.
"Therefore, the right to a revocation hearing was not waived
in this case. See Rule 27.5(b), Ala. R. Crim. P. (providing that
a waiver of the right to a revocation hearing requires the
probationer to admit that he or she committed a violation of
the conditions of probation.). The circuit court was required
to hold a revocation hearing at which it could receive evidence
on the allegations contained in the delinquency report.' "
Id. at 579 (quoting Gann, 337 So. 3d at 1223).
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Although Ex parte Anderson, supra, Williford, supra, Gann, supra,
Bailey, supra, and Wilkerson, supra, all recognized that Rule 27.5(b)
requires "sufficient prior notice of the charges and … the evidence" as
well as an admission that the probationer "committed the alleged
violation," none of these cases addressed the "evidence" component of the
rule, but, rather, considered only whether the probationer was aware of
the alleged violations and admitted those violations. These cases all
illustrate that the crux of a valid waiver is that there must be a sufficient
admission of a specific probation violation, which necessarily includes
notice of the alleged violation and an admission of the factual basis for
the violation, not that the specific requirements of Rules 27.5(b) and
27.6(c) be satisfied.
Although we have often recognized and referenced the waiver
requirements established in Rules 27.5(b) and 27.6(c) when addressing
the validity of a waiver of a probation-revocation hearing, this Court has
never held, expressly or implicitly, that compliance with the various
specific waiver requirements constitutes an exception to the general rules
of preservation applicable to probation-revocation proceedings. Our
holdings have merely recognized that to waive a revocation hearing, the
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minimum standards of due process require notice of the alleged violation
and an admission of a violation. Moreover, our recent holdings recognize
that whether a valid waiver of a revocation hearing occurred is
inextricably intertwined with whether a probationer was
unconstitutionally deprived of a revocation hearing. Thus, whether a
probationer waived a hearing is necessarily included within the
preservation exception regarding whether a hearing occurred.
In sum, we hold that the failure to conduct a probation-revocation
hearing when that hearing has not been waived within the minimal
standards of due process qualifies for an exception to the application of
the general rules of preservation. Accordingly, a probationer may argue
on appeal, as Mulkey does, that he never waived a revocation hearing,
regardless of whether that argument was raised below. It does not follow,
however, as Mulkey contends, that a probationer may argue for the first
time on appeal that the circuit court failed to strictly comply with the
Rules of Criminal Procedure in determining whether a valid waiver
occurred. The waiver requirements established by Rules 27.5(b) and
27.6(c), Ala. R. Crim. P., are not all "jurisdictional" or required by
minimum due-process standards. Thus, we hold that an argument that
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the waiver rules were not complied with must be preserved below to be
addressed on appeal. However, if no Rule 27 argument was made below,
due process requires only notice of the charged violation and an
admission of that violation -- requirements memorialized in Rule 27.6(b).
Thus, only the argument that a waiver fails to comply with due process
may be addressed on appeal if not made below.
We further note that our waiver determination has never depended
upon a satisfaction of the element of Rule 27.5(b) that there be an
understanding of the "evidence relied upon," much less that the
requirements of Rule 27.6(c) be strictly satisfied. Rather, what is
required is a minimally sufficient understanding of the facts, which is
shown by an admission to the specific violation for which a probationer
received notice. Moreover, even when a failure to comply with the waiver
rules has been preserved, the Alabama Supreme Court has required only
"substantial compliance" within the "spirit" of the rules. See Wagner v.
State, 197 So. 3d 517 (Ala. 2015).
With these principles in mind, we now consider whether Mulkey
waived his right to a revocation hearing in compliance with the minimum
due-process standards established by the United States Supreme Court
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in Morrissey v. Brewer, 408 U.S. 471 (1972) and Gagnon v. Scarpelli, 411
U.S. 778 (1973), and memorialized in Rule 27.5(b)(1)'s requirements that
an admission be made only after the probationer "has been given
sufficient notice of the charges."
II. Did Mulkey waive his right to a revocation hearing?
Mulkey's argument that he did not waive a revocation hearing is
without merit because Mulkey's waiver satisfied minimum due-process
standards.
In determining that Mulkey waived his right to a revocation
hearing, we note that in Ex parte Anderson and subsequent cases have
made clear that only two Rule 27.5(b) requirements must be considered
in addressing the minimal constitutional adequacy of a waiver -- that
"[t]he probationer has been given sufficient prior notice of the charges"
and that the probationer "admits … that he committed the alleged
violation." Rule 27.5(b) further requires that the probationer have
"sufficient notice of the evidence to be relied upon" and that "[t]he
probationer admits under the requirements of Rule 27.6(c), that he
committed the alleged violation." (Emphasis added.) Rule 27.6(c) then
requires, even more specifically, that, "[b]efore accepting an admission by
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a probationer that the probationer has violated a condition … of
probation …, the court shall address the probationer personally." In
addition, the circuit court
"shall determine that the probationer understands the
following:
"(1) The nature of the violation to which an
admission is offered;
"(2) The right under section (b) to be
represented by counsel;
"(3) The right to testify and to present
witnesses and other evidence on probationer's own
behalf and to cross-examine adverse witnesses
under subsection (d)(1); and
"(4) That, if the alleged violation involves a
criminal offense for which the probationer has not
yet been tried, the probationer may still be tried
for that offense, and although the probationer may
not be required to testify, that any statement made
by the probationer at the present proceeding may
be used against the probationer at a subsequent
proceeding or trial.
"The court shall also determine that the probationer
waives these rights, that the admission is voluntary and not
the result of force, threats, coercion, or promises, and that
there is a factual basis for the admission."
Rule 27.6(c), Ala. R. Crim. P.
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Although we routinely caution circuit courts to adhere to the
requirements of Rules 27.5(b) and 27.6(c) in determining whether a
probation-revocation hearing has been waived, compliance with these
rules is not required to satisfy the minimum standards of due process.
Accordingly, any argument that the specific requirements of Rule 27.6
were not met must be raised below to be preserved on appeal. However,
as already noted, even if not raised below, a waiver of a revocation
hearing must satisfy minimum due-process standards to be valid. Due
process is satisfied when a probationer has been given "sufficient prior
notice of the charges" and "admits … that he committed the alleged
violation." Rule 27.5(b). See e.g., Ex parte Anderson, supra, Williford,
supra, Gann, supra, and Wilkerson, supra. Thus, because Mulkey did
not preserve his argument that the circuit court's failed to comply with
Rules 27.5(b) and 27.6(c), we consider only whether the circuit court
complied with the minimum standards of due process in determining
whether Mulkey's waiver was valid.
The record indicates that Mulkey was provided notice of the
charged violation and that he understood the alleged violation. Mulkey
made an initial appearance and requested a hearing. Counsel was
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appointed, and a hearing was scheduled. Mulkey was present and
represented by counsel at the hearing. Mulkey's counsel informed the
court that he and Mulkey had "looked at" the alleged violation (that
Mulkey left the 7 Springs rehabilitation facility). Mulkey's counsel then
admitted to that violation multiple times during the hearing. Mulkey
also admitted leaving the rehabilitation facility in his dialogue with the
court. The State was nonetheless ready to proceed with the hearing, and
the court asked Mulkey several times what he wanted to do. Again,
Mulkey, like counsel, admitted to the violation of leaving the
rehabilitation facility before completing the program as required.
Mulkey was provided opportunities to speak at the hearing, and he spoke
freely with the court throughout the hearing. Mulkey continued to admit
leaving the facility in his post-hearing motion for reconsideration, and
Mulkey even attached to this motion the evidence of his failure to
complete the program. (C. 34 ("This letter is written to inform you that
[Mulkey] has exited the program on July 28, 2022.") and C. 43 ("This
letter is written to inform you that [Mulkey] has entered the program on
June 14, 2022, and has an expected graduation date of June 13, 2023.").)
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CR-2022-1234
Clearly, Mulkey had notice of the charged violation and admitted the
violation. The minimum standards of due process were satisfied.
We expressly reject Mulkey's contentions that his revocation must
be reversed because of the circuit court's failure to comply with the
requirements of Rules 27.5(b) and 27.6(c). As already noted, we have
often referenced Rule 27 and cautioned circuit courts to comply with the
waiver rules. However, in order for this Court to review whether a trial
court has complied with the provisions of Rule 27, that issue must be
preserved for appellate review. And, Mulkey never raised this argument
below.
Finally, we also note that, even when the argument that a court
failed to adhere to Rule 27.6(c) requirements has been preserved, the
Alabama Supreme Court has made clear that a waiver of a revocation
hearing is valid if there is "substantial compliance" with the "the spirit"
of the rule.
In Wagner v. State, 197 So. 3d 517 (Ala. 2015), Wagner raised the
argument that his waiver did not comply with Rule 27.6(c), Ala. R. Crim.
P., in his motion for a new hearing. Id. at 520. The Alabama Supreme
Court recognized that Rule 27.6(c) provides that,
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CR-2022-1234
" '[b]efore accepting an admission by a probationer that the
probationer has violated a condition or regulation of probation
or an instruction issued by the probation officer, the court
shall address the probationer personally and shall determine
that the probationer understands the following:
" '(1) The nature of the violation to which an
admission is offered;
" '(2) The right under section (b) to be
represented by counsel;
" '(3) The right to testify and to present
witnesses and other evidence on probationer's own
behalf and to cross-examine adverse witnesses
under subsection (d)(1); and
" '(4) That, if the alleged violation involves a
criminal offense for which the probationer has not
yet been tried, the probationer may still be tried
for that offense, and although the probationer may
not be required to testify, that any statement made
by the probationer at the present proceeding may
be used against the probationer at a subsequent
proceeding or trial.
" 'The court shall also determine that the probationer
waives these rights, that the admission is voluntary and not
the result of force, threats, coercion, or promises, and that
there is a factual basis for the admission.' "
Id. at 521 (quoting Rule 27.6(c), Ala. R. Crim. P.). However, the Alabama
Supreme Court did not require strict compliance with Rule 27.6(c) in
finding that Wagner had waived his right to a hearing.
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CR-2022-1234
The Alabama Supreme Court first determined that "[n]othing in
the record shows that Wagner was not notified of the charges against him
or that he did not understand the nature of those charges." Wagner, 197
So. 3d at 522. The court read the charges, and Wagner's counsel admitted
them. Id. As for the second requirement, "[i]t is without dispute that
Wagner was present at the hearing and that he was represented by court-
appointed counsel." Id. The Court found the third requirement satisfied
because "Wagner, through counsel," stated that he had no witnesses and
"the State called no witnesses." Id. at 522. Accordingly, "Wagner was
not denied his right 'to testify and to present witnesses and other
evidence on [his] own behalf and to cross-examine adverse witnesses."
Id. Fourth, although the transcript did not show that Wagner was
advised that any statement made could be used against him in a later
proceeding, the Court found "that omission to be harmless error because
… Wagner's probation violations do not involve criminal offenses." Id.
Finally, the Court recognized that Wagner was provided opportunities
"to address the trial court in some manner" even though " 'Wagner never
spoke.' " Id. at 523 (quoting Wagner's brief, p. 18). The Court further
noted that "there certainly existed a factual basis for Wagner's
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CR-2022-1234
admission, even beyond Wagner's own admissions of guilt." Id. The
Alabama Supreme Court thus held that "Wagner received a hearing that
substantially conformed to the requirements of Rule 27.6(c), certainly to
the extent that the spirit of the rule was fully complied with." Id. at 524
(emphasis added).
Based on Wagner, even had Mulkey preserved his argument that
the circuit court failed to strictly comply with Rule 27.6(c), the circuit
court "substantially" complied with the "spirit" of the rule in finding that
Mulkey waived his right to a revocation hearing. First, Mulkey, through
counsel, acknowledged viewing the delinquency report and admitted he
left the rehabilitation program. Second, Mulkey was represented by
counsel. Third, Mulkey was informed of his "rights to and under" a
probation-revocation hearing. Fourth, Mulkey's violation did not involve
a criminal offense. Thus, it would be, at most, harmless error that he
was not advised that an admission of his violation could be used against
him in a subsequent proceeding. Finally, counsel admitted multiple
times that Mulkey left the rehabilitation facility in violation of his
probation. Mulkey's counsel's admissions were made in Mulkey's
presence, and Mulkey, who spoke freely to the court throughout the
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CR-2022-1234
hearing, was provided multiple opportunities to speak. Indeed, Mulkey
volunteered at the hearing that he telephoned his attorney "after [he]
left" the rehabilitation facility. (R. 5.) Finally, Mulkey provided an
additional factual basis for his violation by submitting letters from "7
Springs Ministries" that he was not expected to complete the
rehabilitation program until June 13, 2023, but that he left the program
on July 8, 2022. (C. 34, 43.)
In sum, unlike the probationers in the cases cited by Mulkey on
appeal, he did not deny but, rather, repeatedly admitted the factual basis
of the probation violation. The circuit court, thus, could be reasonably
satisfied that Mulkey had violated the terms of his probation by leaving
the "7 Springs" rehabilitation facility. Therefore, the circuit court did not
abuse its discretion by finding that Mulkey admitted the factual basis for
his probation violation and waived his right to a hearing.
Conclusion
In conclusion, because minimum due-process standards require
that a probationer receive a hearing before probation is revoked,
Mulkey's argument that he was deprived of a hearing necessarily
includes the argument that he did not waive a hearing. Simply put,
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CR-2022-1234
whether a revocation hearing is waived is encompassed within the
exception to the general rules of preservation that a revocation hearing
be held. To waive a hearing without violating the minimum standards of
due process, the probationer must have received notice of the alleged
violation and admitted that violation, two of the requirements listed in
Rule 27.5(b). However, any argument that the probationer must have
notice of the specific evidence relied upon under Rule 27.5(b) or that the
probationer's admission must strictly satisfy all additional requirements
provided in Rule 27.6(c), Ala. R. Crim. P., must be preserved to be
addressed on appeal. In this case, Mulkey was aware of the charged
probation violation and admitted his violation -- leaving the
rehabilitation facility before completion of the program. Thus, Mulkey's
waiver of a revocation hearing satisfied due process. The circuit court's
judgment is affirmed.
APPLICATION FOR REHEARING OVERRULED; OPINION OF
MAY 3, 2024, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
Windom, P.J., and Kellum, McCool, and Minor, JJ., concur.
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