reversing the revocation of probation because revocation was based on representations of prosecutor rather than on evidence
How later courts described this case
- reversing the revocation of probation because revocation was based on representations of prosecutor rather than on evidence
- holding revocation improper when circuit court did not hear any testimony or allow the probationer an opportunity to be heard
- treating the revocation of a community-corrections sentence as a probation revocation
- reversing revocation that was based on representations made by prosecutor without calling witnesses to testify or presenting other evidence
Written by the judges who cited it.
The opinion
Rel: June 28, 2024
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) 229-0650), 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, 2023-2024
_________________________
CR-2023-0897
_________________________
Brandon Colby Hayes
v.
State of Alabama
Appeal from Marion Circuit Court
(CC-19-237.71, CC-19-238.71, CC-20-408.71, CC-22-900001.70, and
CC-23-21.70)
KELLUM, Judge.
The appellant, Brandon Colby Hayes, appeals from the Marion
Circuit Court's revocation of his community-corrections sentence.
The record indicates that Hayes was serving his community-
corrections sentence following his convictions for one count of unlawful
CR-2023-0897
possession of a controlled substance, three counts of theft of property in
the first degree, and one count of theft of property in the second degree.
On September 22, 2023, a delinquency report was filed in the circuit court
alleging that Hayes had been arrested on new criminal charges of
burglary in the third degree and attempted theft of property in the second
degree, and that Hayes had failed to pay community-corrections fees.
The circuit court subsequently held an initial-appearance hearing at
which Hayes was informed of the alleged violations and counsel was
appointed. Hayes denied the charges, and the circuit court scheduled a
revocation hearing.
On November 8, 2023, the circuit court conducted a revocation
hearing at which Hayes was present and represented by counsel. At the
hearing, the following occurred:
"THE COURT: All right, Mr. Hayes, Mr. Howell is here with
you.
"THE DEFENDANT: I can't hear him.
"[Defense counsel]: Your honor, if I may speak on behalf of Mr.
Hayes.
"THE COURT: Sure.
"[Defense counsel]: He has a hearing problem. I've
represented him previously and he has hearing loss. I don't
2
CR-2023-0897
know what we can do about that, but he says – he has relayed
to me a moment ago he cannot hear you.
"THE COURT: All right, Mr. Hayes, I don't know that I've
done an advisement with you.
"THE DEFENDANT: Sir?
"THE COURT: Have I spoken with you over Zoom?
"THE DEFENDANT: You spoke with me one time, yes, sir,
over Zoom.
"THE COURT: Okay. Have you got copies of the [delinquency]
reports? Have you got copies of these (indicated)?
"THE DEFENDANT: Yes, sir.
"THE COURT: Are the allegations correct?
"THE DEFENDANT: Yes, sir.
"THE COURT: Okay. The Court finds to a reasonable
satisfaction [Hayes] has violated the conditions of probation
as well as conditions of Community Corrections.
"Is there anything you would like to present or anything you
would like to say before sentence is imposed?
"[Defense counsel]: Tell the judge what you want to do.
"THE DEFENDANT: Sir, I would like to go to rehab. I would
like to go to a faith-based rehab. I got saved since I been in
the county, I gave my life to God, and I would like to further
my spiritual growth and get the tools I need when times are
hard.
3
CR-2023-0897
"I lost my dad back in May of this year. I kind of went
downhill since then, and I would like to get the tools I need
when times are hard out there to be an upstanding citizen.
"THE COURT: Okay. Mr. Hayes, you've got five cases, five
active cases.
"THE DEFENDANT: Yes, sir.
"THE COURT: And the Court finds no measure short of
confinement will avoid depreciating the seriousness of the
claimed violations. Your status is revoked on those cases that
you are serving, your probation is revoked on the cases you
are on probation, and you will serve the remainder of your
sentences with Department of Corrections.
"Okay, that's it."
(R. 2-4.)
On the same day, the circuit court entered an order revoking
Hayes's placement in the community-corrections program, finding that it
was reasonably satisfied that Hayes had violated the conditions of
community corrections based on his commission of new criminal offenses
of burglary in the third degree and attempted theft of property in the
second degree. In its order, the circuit court stated that it had relied on
Hayes's stipulation to the allegations in the delinquency report as
evidence in support of revocation.
4
CR-2023-0897
On November 30, 2023, Hayes filed a motion to reconsider in which
he argued, among other things, that the circuit court's revocation did not
"comport with substantive and procedural requirements of [Rule 27.6,
Ala. R. Crim. P.,] because of the "lack of a proper hearing during the
probation revocation proceeding" and the "lack of a complete and
sufficient colloquy before [the court] accept[ed] any purported
'admissions that may have been made." (C. 14-15.) The circuit court
denied Hayes's motion to reconsider, and this appeal followed.
On appeal, Hayes contends that the circuit court erred when it
revoked his participation in the community-corrections program because,
he argues, his participation in community corrections was revoked
"without benefit of a formal hearing or an evidentiary basis, and he did
not "validly waive his right to a formal hearing" under Rule 27.6(c), Ala.
R. Crim. P. (Hayes's brief, p. 6.)
"We first note that the revocation of a sentence served
under a community-corrections program is treated the same
as a probation revocation. See § 15-18-175(d) (3)b., Ala. Code
1975 ("A revocation hearing shall be conducted before the
court prior to revocation of the community corrections
sentence. The court shall apply the same due process
safeguards as a probation revocation proceeding and may
modify or revoke the community punishment sentence and
impose the sentence that was suspended at the original
hearing or any lesser sentence...."); Richardson v. State, 911
5
CR-2023-0897
So. 2d 1114 (Ala. Crim. App. 2004) (treating the revocation of
a community-corrections sentence as a probation revocation)."
Corbitt v. State, 369 So. 3d 682, 684 (Ala. Crim. App. 2022).
In Hollins v. State, 737 So. 2d 1056, 1057 (Ala. Crim. App. 1998),
this Court held:
"Section 15-22-54, Ala. Code 1975, requires a hearing as a
prerequisite to the revocation of probation. This statutory
requirement is mandatory and jurisdictional. Story v. State,
572 So. 2d 510 (Ala. Cr. App. 1990). Additionally, the
appellant was denied his constitutional right to due process
by the revocation of his probation without a hearing. The
minimal due process to be accorded a probationer before his
probation can be revoked includes written notice of the
claimed violations of probation, disclosure to the probationer
of the evidence against him, an opportunity to be heard in
person and to present witnesses and documentary evidence,
the right to confront and to cross-examine adverse witnesses,
a neutral and detached hearing body such as a traditional
parole board, and a written statement by the factfinder as to
the evidence relied on and the reasons for revoking probation.
Rule 27.5 and 27.6, Ala. R. Crim. P. See Armstrong v. State,
294 Ala. 100, 312 So. 2d 620 (1975); Hernandez v. State, 673
So. 2d 477 (Ala. Cr. App. 1995)."
This Court has repeatedly held that a probation-revocation hearing
at which no witnesses testified and no evidence was presented is
insufficient to comply with the requirements of § 15-22-54, Ala. Code
1975, namely, that the circuit court conduct a hearing before revoking
probation. See D.L.B. v. State, 941 So. 2d 324 (Ala. Crim. App.
6
CR-2023-0897
2006)(reversing the revocation of probation because revocation was based
on representations of prosecutor rather than on evidence); Moore v. State,
54 So. 3d 442 (Ala. Crim. App. 2010)(holding revocation improper when
circuit court did not hear any testimony or allow the probationer an
opportunity to be heard); Saffold v. State, 77 So. 3d 178 (Ala. Crim. App.
2011)(reversing revocation that was based on representations made by
prosecutor without calling witnesses to testify or presenting other
evidence).
The failure to consider the testimony of witnesses and other
evidence during a probation-revocation hearing, however, does not in and
of itself entitle a probationer to relief. Pursuant to Rule 27.5(b), Ala. R.
Crim. P., a probationer "may waive his right to a revocation hearing if he
is given 'sufficient prior notice of the charges and sufficient notice of the
evidence to be relied upon' and if he 'admits, under the requirements of
Rule 27.6(c), [Ala. R. Crim. P.] that he committed the alleged violation.' "
Ex parte Anderson, 999 So. 2d 575, 577 (Ala. 2008) (quoting Rule 27.5(b)).
Rule 27.6(c), Ala. R. Crim. P., provides:
"Before 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
7
CR-2023-0897
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 proceedings 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."
Hayes contends that his case is analogous to Gosa v. State, 377 So.
3d 1103 (Ala. Crim. App. 2022). In Gosa, the probationer stipulated to
the correctness of a delinquency report alleging he had absconded but did
not admit to the truthfulness of the allegations in the report. Rather, he
tried to present a defense to his failure to report to his probation officer.
8
CR-2023-0897
Gosa, 377 So. 3d at 1104-05. Relying on Gosa's stipulation to the
correctness of the delinquency report, the circuit court revoked Gosa's
probation without receiving any evidence. This Court reversed the
judgment of the circuit court, stating:
" 'This Court has, on several occasions, held
that the failure to receive evidence at a revocation
hearing means that no meaningful revocation
hearing was held. See, e.g., Williford[ v. State], 329
So. 3d [86] at 90-91 [Ala. Crim. App. 2020)] ("[T]his
Court has held that a probationer was denied the
right to a revocation hearing in cases in which the
probationer appeared before the circuit court for a
hearing but the circuit court did not receive
evidence at the hearing and thus revoked
probation without an evidentiary basis."); Allen [v.
State], 285 So. 3d [864] at 869 [(Ala. Crim. App.
2019)] (finding that the State failed "to introduce
any exhibits, witness testimony, or any other legal
evidence during the hearing" and, thus, that the
"proceeding did not constitute the meaningful
hearing to which Allen was entitled"); and Saffold
v. State, 77 So. 3d 178, 182 (Ala. Crim. App. 2011)
("[W]e cannot say that the proceeding held on
October 28, 2010, constituted a probation-
revocation hearing. The prosecutor represented
that Saffold had been arrested on new charges but
called no witnesses to testify and presented no
other evidence regarding the new charges against
Saffold.").'
"Wilkerson, 372 So. 3d at 578. Thus, Gosa is correct that the
circuit court failed to actually conduct a revocation hearing.
9
CR-2023-0897
" 'But, as this Court explained in Williford,
"the fact that a revocation hearing did not occur
does not in and of itself entitle [a person] to relief."
329 So. 3d at 91. Indeed, a person may waive his
right to a revocation hearing if he "has been given
sufficient prior notice of the charges and sufficient
notice of the evidence to be relied upon" and he
"admits, under the requirements of Rule 27.6(c),
[Ala. R. Crim. P.,] that he committed the alleged
violation." Rule 27.5(b), Ala. R. Crim. P.'
"Wilkerson, 372 So. 3d at 579.
"Here, the circuit court circumvented the requirement
that a revocation hearing be held by basing its revocation on
Gosa's admission that he had violated the terms of his
probation, but Gosa did not admit to the truthfulness of the
allegations in the report alleging that he had violated the
terms of his probation. Although Gosa, or his counsel, stated
that he wished to forgo a formal revocation hearing and that
the facts set out in the report were correct, Gosa did not affirm
that those facts constituted an admission that he had
absconded. Rather, Gosa tried to present a defense to his
failure to report to his probation officer - i.e., that he had been
in the hospital, that he had been ill after leaving the hospital,
and that he had been arrested and was in custody.
" ' "[B]ecause there was not an admission of
the truthfulness of the allegations, there was not a
sufficient basis for the revocation of [Gosa's
probation] 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
10
CR-2023-0897
hearing at which it could receive evidence on the
allegations contained in the delinquency report." '
"Wilkerson, 372 So. 3d at 579 (quoting Gann v. State, 337 So.
3d 1217, 1223 (Ala. Crim. App. 2021))."
Gosa, 377 So. 3d at 1108-09.
The State contends that this Court's decision in Gosa is materially
distinguishable from this case because Gosa attempted to present a
defense to the charged violation, but Hayes's admission here was
unequivocal. Although we agree with the State that a factual distinction
exists between this case and Gosa, we do not agree with the State's
suggestion that Hayes's failure to either present a defense or attempt to
present a defense necessarily relieves the circuit court of its
responsibility to comply with Rule 27.6(c).
In this case, Hayes never stated at any time that he wished to waive
a formal revocation hearing. Even if Hayes's unequivocal statement that
his delinquency reports were correct is considered an admission, as the
State asserts, the circuit court did not comply with Rule 27.6(c) before
accepting Hayes's admission, thus allowing for the waiver of a formal
revocation hearing.
11
CR-2023-0897
As this Court recently recognized in Mulkey v. State, [Ms. CR-2022-
1234, May 3, 2024] ___ So. 3d ___ (Ala. Crim. App. 2024), strict
compliance with Rule 27.6(c) is not always required. Instead,
"substantial" compliance with the "spirit" of Rule 27.6(c) will support a
finding that a probationer waived his right to a revocation hearing. See
Wagner v. State, 197 So. 3d 517, 524 (Ala. 2015) (holding revocation
hearing "substantially conformed to the requirements of Rule 27.6(c),
certainly to the extent that the spirit of the rule was fully complied with.")
In this case, however, it is abundantly clear from the record on appeal
that the circuit court did not substantially comply with the "spirit" of
Rule 27.6(c) when it revoked Hayes's community-corrections sentence.
The circuit court simply asked if Hayes had received a copy of the
delinquency reports and if the allegations in the reports were correct
before it revoked Hayes's probation.
Accordingly, we reverse the circuit court's order revoking Hayes's
community-corrections sentence and remand this case for further
proceedings consistent with this opinion.
REVERSED AND REMANDED.
Windom, P.J., and McCool, Cole, and Minor, JJ., concur.
12