Brandon Lewis McCary v. State of Alabama

Rel: May 5, 2023
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.
Alabama Court of Criminal Appeals
OCTOBER TERM, 2022-2023
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CR-2022-1128
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Brandon Lewis McCary
v.
State of Alabama
Appeal from Calhoun Circuit Court
(CC-19-2233.70)
McCOOL, Judge.
Brandon Lewis McCary appeals the Calhoun Circuit Court's
revocation of his probation. We reverse and remand.
Based on the limited record before us, it appears that in July 2020
McCary was convicted of second-degree burglary and was sentenced to
CR-2022-1128
54 months in prison. That sentence was split, and McCary was ordered
to serve 396 days in prison followed by 3 years 5 months and 1 day on
probation.
On August 15, 2022, probation officer Katie Lee of Etowah County
filed a delinquency report alleging that McCary had violated the
conditions of his probation by absconding. Specifically, the report stated
that, after testing positive for THC, McCary was placed in a drug-
treatment program. He was discharged from that program for
noncompliance, but he failed to contact Officer Lee upon discharge, even
though he had been instructed to do so. Officer Lee contacted McCary's
wife, who informed Officer Lee that McCary had enrolled in another
recovery program. Officer Lee contacted the director of that program.
The director told Officer Lee that McCary had checked into the program
over the weekend, but the director was unable to locate McCary on the
day Officer Lee contacted the director. Officer Lee concluded that she
had exhausted all available avenues to locate McCary and that he was
actively avoiding supervision.
On September 22, 2022, the circuit court held a revocation hearing
during which McCary was represented by counsel. At the hearing, the
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State presented the testimony of two probation officers -- Reginald Smith
and Taneria Daniels. Both of those officers testified concerning McCary's
alleged probation violation, but their testimony was based solely on
Officer Lee's delinquency report. In fact, both Officer Smith and Officer
Daniels testified that they had no firsthand knowledge of the alleged
violation. (R. 6, 10). Officer Lee did not testify at the hearing. McCary's
attorney moved to dismiss the case on the basis that hearsay evidence
cannot form the sole basis of revocation. The circuit court denied that
motion. After the hearing, the circuit court entered a written order
revoking McCary's probation. McCary appealed.
On appeal, McCary argues that the circuit court erred in revoking
his probation based solely on hearsay testimony. The State concedes that
the evidence presented by the State at the revocation hearing was
entirely hearsay evidence, and the State asserts that "the circuit court
exceeded its discretion in revoking [McCary's] probation." (State's brief
at 7.) We agree.
In Corbitt v. State, [Ms. CR-21-0240, July 8, 2022] ___ So. 3d ___
(Ala. Crim. App. 2022), this Court stated:
" 'It is well settled that hearsay evidence may not form
the sole basis for revoking an individual's probation.'
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Goodgain v. State, 755 So. 2d 591, 592 (Ala. Crim. App. 1999)
(citing Clayton v. State, 669 So. 2d 220 (Ala Crim. App. 1995)).
However, 'hearsay evidence is admissible in a revocation
proceeding,' Beckham v. State, 872 So. 2d 208, 211 (Ala. Crim.
App. 2003), and a combination of both hearsay and
nonhearsay evidence may be sufficient to warrant revocation.
See, e.g., Askew v. State, 197 So. 3d 547, 548-49 (Ala. Crim.
App. 2015). '[W]hen the State presents a mixture of hearsay
and nonhearsay evidence to show that a defendant violated
his probation by committing a new offense, the circuit court
cannot revoke a defendant's probation for that violation
unless the nonhearsay evidence connects the defendant to the
alleged offense.' Walker v. State, 294 So. 3d 825, 832 (Ala.
Crim. App. 2019) (emphasis in original)."
___ So. 3d at ___.
In the present case, the State presented only hearsay evidence to
support the circuit court's finding that McCary had violated the
conditions of his probation. At the revocation hearing, the State
presented the testimony of two witnesses who, by their own testimony,
had no firsthand knowledge of McCary's alleged violation. The witnesses'
knowledge of the alleged violation came solely from a third person whose
testimony was not offered at the revocation hearing.
Because the State failed to present any nonhearsay evidence to
establish that McCary had violated the conditions of his probation, the
circuit court erred in revoking McCary's probation. Therefore, this Court
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reverses the circuit court's order revoking McCary's probation and
remands this case for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
Windom, P.J., and Kellum, Cole, and Minor, JJ., concur.
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