Alfred Lee Jacobs v. State ( 2021 )

FIFTH DIVISION
RICKMAN, C. J.,
MCFADDEN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
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COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
August 23, 2021
In the Court of Appeals of Georgia
A21A1179. JACOBS v. THE STATE.
MCFADDEN, Presiding Judge.
In this discretionary appeal, Alfred Lee Jacobs challenges the trial court’s order
revoking his probated sentence. The trial court revoked his probation after finding
that Jacobs had violated a banishment condition. The undisputed evidence showed
and the state conceded that Jacobs was brought into the banishment area
involuntarily. Because the state did not show by a preponderance of the evidence that
Jacobs wilfully remained there, we reverse.
1. Facts and procedural history.
“A court may not revoke any part of any probated or suspended sentence unless
the defendant admits the violation as alleged or unless the evidence produced at the
revocation hearing establishes by a preponderance of the evidence the violation or
violations alleged.” OCGA § 42-8-34.1 (b). The burden is on the state to make the
necessary showing. Bowen v. State, 242 Ga. App. 631, 633 (531 SE2d 104) (2000).
While we affirm a decision to revoke probation “unless there has been a manifest
abuse of discretion on the part of the trial court,” Caldwell v. State, 327 Ga. App. 471,
472 (758 SE2d 325) (2014) (citation and punctuation omitted), it is an abuse of
discretion for the trial court to revoke probation if the state fails to meet its
evidentiary burden. See Hunt v. State, 358 Ga. App. 897, 899 (856 SE2d 467) (2021);
Bowen, supra. Evidence is sufficient to support a probation revocation “if the record
includes some competent evidence to show that the defendant violated the terms of
his probation in the specific manner charged. . . .” Caldwell, supra.
The record shows that, after serving nearly fourteen years in prison for child
molestation, Jacobs was released from prison in early July 2019 to serve the
remaining five years of his sentence on probation. He was subject to a condition of
banishment from a section of the state that included Coffee County. Later that month,
his probation officer petitioned the trial court to revoke Jacobs’s probation on the
ground that Jacobs “was found to be in violation of his banishment condition, when
he was located at [a specific address in Coffee County] after being notified [two days
earlier] that he had 48 [hours] to leave his area of banishment.”
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At a hearing on the revocation petition, the trial court heard testimony from
Jacobs, his probation officer, and his nephew. That testimony, viewed in the light
most favorable to the trial court’s ruling, showed that after Jacobs was released from
prison, he met with his probation officer in Tifton, Georgia. The officer instructed
Jacobs to register as a sex offender with the Tift County Sheriff’s Department. But
when Jacobs went to the sheriff’s office, law enforcement officers transported him to
Coffee County against his will.
Jacobs spent 48 hours in the Coffee County jail before he was taken to the
home of his nephew, who lived in the county. His probation officer told him that he
had 48 hours to leave the banishment area. The probation officer believed that Jacobs,
a diabetic, had options other than walking out of the banishment area. He testified at
the hearing that “[i]t would be quite a walk” for Jacobs to do so and he agreed that the
temperature at the time was “about a hundred degrees.”
Instead, the probation officer assumed that Jacobs’s nephew could transport
him out of the banishment area. But the nephew, while willing to drive Jacobs out of
the area, could not do so by the 48-hour deadline due to his work schedule. Jacobs
had no money to hire someone else to drive him out of the area, and under the
conditions of his probation he could not hitchhike or work in the area to earn money.
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Jacobs asked the officer what would happen if he did not leave and the officer
replied that he would be arrested and a probation revocation hearing would be
scheduled. Jacobs told the officer that “he would be right there [at his nephew’s
house] waiting on [the officer to come pick [him] up . . . when 48 hours expired.”
Forty-eight hours later, the probation officer returned to the house and arrested
Jacobs.
After the evidentiary hearing, the trial court granted the probation-revocation
petition. Jacobs moved for a new trial, and the trial court denied his motion without
express findings of fact. We granted Jacobs’s application for discretionary appellate
review.
2. Analysis.
To establish a probation violation, the state generally must show “some
voluntary act on the part of the probationer.” Gray v. State, 313 Ga. App. 470, 473
(2) (722 SE2d 98) (2011). In other words, the state must show that the probationer’s
“own actions” were the cause of the probation violation. Id. For example, in Gray we
held that a probationer was not in willful and voluntary violation of a probation
condition requiring his completion of a drug treatment program where he was
dismissed from the program for a reason outside of his control. Id.4
The state concedes that Jacobs did not enter the banishment area voluntarily
and that it did not allege that he violated his probation for that reason. See generally
Ponder v. State, 341 Ga. App. 276, 278 (1) (800 SE2d 19) (2017) (probation can only
be revoked for reason alleged in state’s petition). Indeed, at the probation revocation
hearing the state argued to the trial court: “No one faults [Jacobs] for how he got here.
He was, apparently, kidnapped by Tifton and dumped out over here for some reason.”
Instead, the state argues that the evidence showed that Jacobs voluntarily remained
in the banishment area after the 48-hour time period expired. But there is no evidence
that Jacobs had the ability to leave the area within that time frame.
The state points to Jacobs’s statement to the probation officer that he would be
at his nephew’s house at the end of 48 hours and argues that this should be construed
as evidence of Jacobs’s intent to remain in the banishment area. But notwithstanding
his intent, without evidence that Jacobs could have removed himself from the
banishment area within the time frame imposed upon him, there is no evidence that
his “own actions” caused the probation violation. See Gray, 313 Ga. App. at 473 (2).
The state also argues that the trial court, as factfinder, was entitled to disbelieve
Jacobs’s testimony about his medical condition and lack of financial means. This is
true. But such disbelief alone will not supply a missing element so as to satisfy the
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state’s evidentiary burden. See Hunt v. State, 358 Ga. App. 897, 899-900 (856 SE2d
467) (2021). Moreover, the probation officer also testified to some of these facts.
The state asserted at the probation revocation hearing that Jacobs’s probation
should be revoked because he could have walked out of the banishment area within
48 hours. But Jacobs’s probation officer did not expect that of him, and there is
simply no evidence showing that it would have been possible for Jacobs to do so.
Consequently, the state did not meet its burden of showing that Jacobs’s continued
presence in the banishment area was voluntary, and the trial court abused his
discretion in revoking Jacobs’s probation for that reason. See Gray, 313 Ga. App. at
473-474 (2).
Judgment reversed. Senior Appellate Judge Herbert E. Phipps concurs.
Rickman, C. J. concurs fully and specially.
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A21A1179. JACOBS v. THE STATE.
RICKMAN, Chief Judge.
I concur fully with the majority opinion that the trial court’s order revoking
Jacobs’s probated sentence must be reversed. I write separately to highlight the fact
that the government’s role in Jacobs’s probation violation makes this case both
troubling and unique; as a result, I question whether it falls squarely within our
jurisprudence governing traditional probation revocation cases, and I caution against
using the analysis employed by the majority – namely, whether Jacobs had the ability
to cure the probation violation – to cases in which a probationer voluntarily violates
a probationary term.
Upon his release from jail, Jacobs fully complied with the banishment terms
of his probation. Then, in the words of the prosecutor, Jacobs was “kidnaped”1 by law
enforcement officers from Tift County and “dumped” back into Coffee County. Given
these facts, I question whether the proper focus of our inquiry should be if Jacobs had
the means to (again) voluntarily leave Coffee County within the 48-hour time line
dictated by his probation officer, and further question whether there was any onus on
the government to aid Jacobs in curing the violation that its own actors created. After
all, “[t]he function of law enforcement is the prevention of crime and the
apprehension of criminals. Manifestly, that function does not include the
manufacturing of crime.” Wagner v. State, 220 Ga. App. 71, 72 (467 SE2d 385)
(1996).
Thus, while I readily admit that the majority does its best to square these facts
with the existing case law, I suspect our jurisprudence has simply never contemplated
a probation revocation proceeding against a compliant and otherwise unwitting
probationer for a violation created solely by law enforcement officers. I caution that
nothing in the majority opinion should be read to imply that the State generally has
1
It is impossible to tell from the paper record whether the prosecutor’s
verbiage was meant in all seriousness; regardless, his use of the word makes clear
that, at a minimum, Jacobs did not choose to return to Coffee County.
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the burden of proving that a probationer who voluntarily violates a banishment
condition has the means to remove himself or herself from the banished location.
Finally, I believe in and highly respect the principles of judicial restraint and
am generally mindful to avoid extraneous commentary on matters beyond the legal
analysis of issues presented to this Court. Nevertheless, I feel compelled to mention
that as a former prosecutor and current judge, I find it perplexing, to put it mildly, that
at no time on the record before me did the prosecutor nor the trial court even pause
to consider whether the fact of Jacob’s “kidnap[ing]” and forced probationary
violation by law enforcement officials should, at the very least, operate as an obstacle
to re-incarcerating him for being present in a county from which he had been
banished.
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