#### Christopher Randall KIRBY v. STATE of Alabama

CR-16-0044

Court of Criminal Appeals of Alabama.

April 28, 2017

Christopher Randall Kirby, pro se.

Luther Strange, atty. gen., and Ferris Stephens, asst. atty. gen., for appellee.

BURKE, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.-

Windom, P.J., and Kellum and Joiner, JJ., concur. Welch, J., dissents, with opinion.

WELCH, Judge,

dissenting,

Christopher Randall Kirby appealed the Randolph Circuit Court’s summary dismissal of his June 3, 2016, Rule 32, Ala. R. Crim. P., petition for postconviction relief. In the petition and on appeal, Kirby alleged that he was removed from the Randolph' County community-corrections program without first being afforded a hearing and other due-process safeguards provided in Rules 27.5 and 27.6, Ala. R. Crim. P. The majority,-in its unpublished memorandum, holds that Kirby’s' claims were not pleaded' with sufficient specificity to satisfy the requirements of Rules 32.3 and 32.6(b), Ala.- R. Crim. P. The memorandum does not detail the alleged deficiencies in Kirby’s pleadings. Moreover, according to the majority, exhibits provided to the circuit court by the State indicate that Kirby was afforded a revocation hearing.

I respectfully dissent because I believe that Kirby sufficiently pleaded a jurisdictional claim that his placement in a community-corrections program was revoked without his receiving either a proper-initial appearance hearing or a formal revocation hearing.1 Thus, I would remand this case for further proceedings that comply with Rules 27,5 and 27.6, Ala. R. Crim.-P.

In his petition, Kirby asserted that on May 13, 2015, he pleaded. guilty to first-degree unlawful manufacture of a controlled substance and to possession of drug paraphernalia. His sentence was split, and he was ordered to serve three years in the Randolph County community-corrections program,. On October 30, 2015, the trial court entered an order stating that a delinquency report had been filed because Kirby had violated the terms of the program.2*906According to Kirby, pursuant to that delinquency report, he was taken into custody, where he remained until December 11, 2015, when he made what should have been his initial appearance before the court pursuant to Rule 27.5, Ala. R. Crim. P. Kirby contends, however, that the proceedings on December 11, 2015, consisted of the trial court merely telling him that he was being returned to prison.

The initial appearance is intended to bring an arrested probationer before a judge where the probationer is informed of the alleged violations and provided a written copy of the charges, is informed that statements made before the hearing may be used against the probationer, and is advised of the right to counsel and is appointed counsel when certain requirements set forth in the rule are met. At the initial appearance the trial court sets the date of the formal revocation hearing, and determines whether the probationer is to be released on bond pending the revocation hearing. Rule 27.5(a)(1) through (5), Ala. R. Crim P. Moreover, at the initial appearance, a probationer may waive the formal probation hearing and the judge may enter final disposition when certain requirements set forth in the rule are met. Rule 27.5(b), Ala. R. Crim. P. The proceedings for a formal probation-revocation hearing are set forth in Rule 27.6, Ala. R. Crim. P.

Kirby specifically pleaded that,

> “[o]n December 11, 2015, Kirby made his initial appearance. This Court did not advise Kirby of his right to request counsel nor did this Court appoint counsel to represent Kirby, who was indigent. No hearing was held, this Court merely informed Kirby that he was being sent back to prison. To date, Kirby has never received a written order of revocation.”

(C. 10.)(Emphasis added.)

Kirby then argued:

> “Kirby argues that (1) the trial court failed to hold a community corrections revocation hearing, (2) the trial court failed to inform Kirby of his right to counsel and failed to appoint counsel to represent Kirby, who was indigent, and (3) the trial court failed to enter an adequate written order of revocation. For these reasons, this Court lacked jurisdiction to revoke his community corrections status.

> “In Ex parte Hill, 71 So.3d 3, 8-9 (Ala. 2009), the Alabama Supreme Court held:

> “ ‘[T]he 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 correction 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 So.2d 1114 (Ala. *Crim.*App. 2004)(treating the revocation of a community-corrections sentence as a probation revocation).’

> “The Court noted that Rules 27.5 and 27.6, A.R.Crim.P., are intended to provide a defendant with due-process protections concerning revocation proceedings. Id. at 9.”

(C. 11.) Kirby continued by asserting that on December 11, 2015, he was not afforded the due-process protections set forth in Rule 27.5(a)(1) through (5), Ala. R. Crim. P., that are owed a probationer at his or her initial appearance.

> “None of the foregoing [measures to be taken pursuant to Rules 27.5(a)(1) through (5)] occurred at the December *90711, 2015, initial appearance.. The Court merely informed Kirby that it was revoking his community corrections status and was sending him back to prison.”

(G. 12, emphasis added.) Kirby further correctly pleaded:

> “[Tjhe failure to hold a meaningful revocation hearing prior to the revocation of community corrections status is a jurisdictional defect. Story v. State, 572 So.2d 510, 511 (Ala.Cr.App. 1990) (‘Section 15-22-54, Code of Alabama 1975, requires a hearing as a prerequisite to the revocation of probation. This statutory requirement is mandatory and jurisdictional/).

> 

> “Because this Court revoked Kirby’s community corrections status at his initial appearance in violation of Rule 27.5, A.R.Crim.P., this Court did not have jurisdiction for its action. The revocation is therefore void and due to he set aside.”

(C. 12-13.)

Kirby’s pleadings regarding his failure to receive any hearing are sufficient. I am aware that “[t]his Court has repeatedly held that the failure to conduct a revocation hearing without a valid waiver of the hearing pursuant to Rule 27.5(b), Ala. R.Crim.P., is a jurisdictional defect.” Durry v. State, 977 So.2d 539, 541 (Ala. Crim. App. 2007)(emphasis added). This suggests that a petitioner should plead not only that he or she did not receive a revocation hearing, but also that he or she did not waive the right to a revocation hearing. However, Durry’s reference to a waiver pursuant to Rule 27.5(b) makes it implicit that Durry had an initial appearance at which to waive a probation-revocation hearing. Here, Kirby alleged that what should have been his initial appearance consisted only of the circuit court informing Kirby that he was returning to prison. If that allegation is true, Kirby did not receive a proper initial appearance at which he had an opportunity to waive a later formal revocation hearing. Therefore, in this circumstance — where a petitioner’s allegation makes it clear that there was no opportunity to enter a waiver at the initial appearance — a petitioner cannot be required to plead that no waiver was entered at the initial appearance.

Although the State responded to his petition and attached the circuit court’s December 11, 2015, order revoking Kirby’s community-corrections status, that order merely stated: “Defendant is terminated from Community Corrections and shall serve remainder of sentence in DOC.” (Third supplemental record at C. 7.) That order in no way disproves Kirby’s allegation that he was denied an initial appearance hearing or that he was denied a formal revocation hearing.3

The circuit court issued a written order dismissing Kirby’s Rule 32 petition that stated, in pertinent part:

> “The Court finds that the Petition is not sufficiently specific, is precluded or fails to state a claim and no material issue of fact or law exist[s] which would entitle the Petitioner to relief under this Rule 32 and that no purpose would be served by any further proceeding.”

*908(C. 31.) Because I believe that Kirby sufficiently pleaded a jurisdictional claim, this order is in error.

Therefore, I would remand this case to the circuit court with directions to conduct a hearing on Kirby’s claim that he did not receive an initial appearance hearing or a revocation hearing in accordance with Rules 27.5 and 27.6, Ala. R. Crim. P.

1

. Kirby raised other claims; however, I believe that (he failure to receive an initial appearance hearing or a formal hearing encompasses Kirby’s other claims and, thus, pretermits a discussion of those claims.

2

. Kirby asserts that he was not present "at that hearing.” (C. 10.) If a hearing was held on October 30, 2015, it could not have been Kirby’s initial appearance under Rule 27.5, Ala. R. Crim, P„ because Kirby contends that he was not present.

3

. The State attached three exhibits to its response to Kirby’s Rule 32 petition: The October 30, 2015, delinquency report filed by the community-corrections director; a copy of the circuit court’s December 11, 2015, order, revoking Kirby's participation in the community-corrections program; and a letter written by Kirby and sent to the director of the community-corrections program in which Kirby told the director that " ‘he messed up’ ” because he continued friendships with the wrong people. (C. 29.) None of those exhibits disprove Kirby’s assertion that he did not receive an initial appearance hearing.