Ex parte State of Alabama. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Nickolas L. Dean v. State of Alabama)

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REL: 06/25/2010 Notice: T h i s o p i n i o n i s s u b j e c t t o f o r m a l r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e Reporter o f Decisions, A l a b a m a A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ( ( 3 3 4 ) 2 2 9 ¬ 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . SUPREME COURT OF ALABAMA OCTOBER TERM, 2009-2010 1090754 Ex parte State o f Alabama PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Nickolas L. Dean v. State o f Alabama) (Madison C i r c u i t C o u r t , CC-03-160.70; C o u r t o f C r i m i n a l A p p e a l s , CR-08-1082) STUART, Justice. 1090754 In November first degree, imprisonment. to serve Nickolas That five years' supervised various Dean was t o robbery sentenced I n 2008, while and Dean of h i s sentence, report charging terms o f h i s p r o b a t i o n , officer. Dean was was Dean the probation the f o l l o w i n g exchange occurred ordered serving the had including failing years' years of h i s probation that i n the t o 20 i n c a r c e r a t i o n , f o l l o w e d by t h r e e portion a delinquency L. guilty s e n t e n c e was s p l i t , probation. probationary filed 2003, upon p l e a d i n g officer violated to report to At the probation-revocation between t h e c i r c u i t hearing, c o u r t and Dean: "THE C O U R T : You have t h e r i g h t t o h i r e y o u r own l a w y e r , Mr. Dean. C a n y o u h i r e a l a w y e r a n d do y o u w a n t t o do t h a t ? "[Dean]: S i r , I'm n o t a b l e "THE C O U R T : wrong I w i l l "[Dean]: to,s i r . I f y o u c a n t e l l me t h a t a p p o i n t an a t t o r n e y . I misunderstood this report i s the question. "THE C O U R T : I f y o u c a n t e l l me t h a t y o u h a v e n o t violated probation; that this report i s i n error, then I w i l l appoint a lawyer to represent you. "[Dean]: "THE I t ' snot, s i r . COURT: "[Dean]: You c a n ' t do t h a t . I d i dnot report. 2 1090754 "THE COURT: A l lright. You don't have t o a d m i t , t e c h n i c a l l y now, t h a t y o u v i o l a t e d p r o b a t i o n . If you deny i t , then I ' l l take testimony from t h e probation o f f i c e r . You c a n t e s t i f y i f you want t o , b u t y o u may r e m a i n s i l e n t . Do y o u u n d e r s t a n d t h a t ? "[Dean]: Yes, s i r . "THE COURT: Do y o u a d m i t o r d e n y f a i l i n g t o r e p o r t and p a y i n g t h e C o u r t - o r d e r e d moneys? Do y o u a d m i t i t o r deny i t ? I s i t t r u e o r n o t t r u e ? "[Dean]: "THE Deny. COURT: "[Dean]: true. Well, i s this report I t ' s not true. true The w h o l e or not true? thing "THE COURT: Is i ttrue or not true that to r e p o r t t o your p r o b a t i o n officer? "[Dean]: i s not you f a i l e d I t ' s true. "THE COURT: report? Do y o u w a n t to t e l l me why y o u d i d n ' t "[Dean]: I h a d l o s t my p l a c e . Home. R e s i d e n c e . I h a d l o s t my home r e s i d e n c e a n d I was l i v i n g on t h e street, s i r . fl "THE COURT: A l l r i g h t . Mr. Dean, as a r e s u l t o f f a i l i n g t o r e p o r t t o your p r o b a t i o n o f f i c e r , your p r o b a t i o n a r y s t a t u s i s revoked and you're o r d e r e d t o serve your o r i g i n a l sentence. You'll get credit f o r any t i m e t h a t y o u ' v e s e r v e d . 3 1090754 " [ D e a n ] : S i r , w o u l d i t be p o s s i b l e I c o u l d p r o b a t i o n bond or a n y t h i n g l i k e t h a t ? get a "THE COURT: No, s i r . Your p r o b a t i o n i s revoked. Y o u ' r e n o t on p r o b a t i o n now. You've g o t t o s e r v e your sentence f o r f a i l i n g t o r e p o r t . "[Dean]: Can I a s k s o m e t h i n g , "THE COURT: "[Dean]: sir? Sir? Can I s a y s o m e t h i n g "THE COURT: I f y o u ' d l i k e did. Go a h e a d . to. on my b e h a l f , I thought you sir? already " [ D e a n ] : S i r , w o u l d i t be p o s s i b l e - - s e e , I n e v e r did go t o w o r k r e l e a s e o r n o t h i n g when I was i n p r i s o n t h e w h o l e t i m e , b e c a u s e I d i d n ' t h a v e no P S I r e p o r t ; Presentence I n v e s t i g a t i o n Report. They w o u l d n ' t a l l o w me t o go t o w o r k r e l e a s e s o , t h e w h o l e t i m e I was i n p r i s o n , when I g o t o u t , I d i d n ' t h a v e no means t o make money o r j o b s k i l l s a s w e l l . So, on t o p o f t h a t I'm a s k i n g y o u i f i t ' s p o s s i b l e i f I can have a chance t o -- have a chance. If I c a n h a v e a c h a n c e t o h a v e a c h a n c e t o , y o u know, t o h a v e some t y p e o f i n c o m e t h a t when I do g e t o u t t h a t I'm a b l e t o do f o r m y s e l f . "THE COURT: I h o p e y o u q u a l i f y f o r w o r k r e l e a s e . I c a n ' t do a n y f u r t h e r s p l i t on t h i s . You've a l r e a d y s e r v e d t h e maximum s p l i t , s o t h e r e ' s n o t h i n g I c a n do e x c e p t t h e o r i g i n a l s e n t e n c e . S o , i t w i l l b e up t o t h e D e p a r t m e n t o f C o r r e c t i o n s as t o w h e t h e r o r n o t t h e y ' l l p u t y o u on w o r k r e l e a s e . " [ D e a n ] : I u n d e r s t a n d t h a t , s i r , b u t I'm a s k i n g y o u i f i t w o u l d b e p o s s i b l e i f I c o u l d go t o c o u n t y w o r k r e l e a s e f o r s i x months t o a y e a r ? 4 1090754 "THE COURT: No, s i r , I c a n ' t do t h a t . I've s p l i t y o u r s e n t e n c e t o t h e maximum a m o u n t . n o t h i n g I c a n d o , Mr. D e a n . already There's "You c a n go b a c k w i t h t h e d e p u t i e s . I hope t h e y ' l l p u t y o u on w o r k r e l e a s e w i t h t h e S t a t e . " In a reconsider pro se motion, i t s order Dean revoking "1. U p o n my release e x p l a i n e d t h e r u l e s and asked the circuit his probation, court stating: from i n c a r c e r a t i o n , I a g r e e d t o them, however was "2. My l i s t e d r e s i d e n c e was i n f e s t e d w i t h d r u g s a n d violence. Because of the p e o p l e moving t h r o u g h the house, items periodically came up missing. A r g u m e n t s were b u i l d i n g and I felt I needed to remove m y s e l f f r o m a v o l a t i l e s i t u a t i o n . "3. I stayed w i t h s e v e r a l f r i e n d s f o r a p e r i o d of time but I was b a s i c a l l y homeless. I was only working s p o r a d i c a l l y through Labor Finders making a b o u t $40 a d a y when I w o r k e d . "4. I d i d n o t i n t e n d t o n e g l e c t p a y m e n t o f my f i n e s a n d r e s t i t u t i o n b u t I d i d n o t h a v e a n y money f o r more t h a n b a s i c s u r v i v a l . "5. A f t e r I f e l l b e h i n d , my p r o b a t i o n o f f i c e r made i t c l e a r t h a t i f I d i d n o t p a y my p r o b a t i o n w o u l d be revoked. I was s c a r e d a f t e r a n o t h e r m o n t h came a n d I was s t i l l on t h e s t r e e t s a n d s t i l l n o t a b l e t o pay. Because of t h i s , I stopped r e p o r t i n g . "6. I o f t e n w a l k e d by t h e p r o b a t i o n office and t h o u g h t t o go i n a n d e x p l a i n a n d e v e n w e n t i n o n c e a n d a s k e d f o r [my p r o b a t i o n o f f i c e r ] b u t he w a s n ' t i n and I l e f t . I was t o o s c a r e d t o go b a c k . " The circuit court denied Dean's m o t i o n 5 to reconsider. to 1090754 Dean appealed probation other to the Court issues, appoint the c i r c u i t that counsel of C r i m i n a l the c i r c u i t to represent hearing. The S t a t e preserved for appellate properly refused probationThe court's order court counsel circuit at Criminal failure counsel, circuit counsel reversed court's was circuit to not court Dean a t t h e hearing the Reasoning falls that the to represent within one Dean of the of preservation, i . e . , that a of h i s or her r i g h t to 982 S o . 2 d 605 ( A l a . of C r i m i n a l Appeals then that Dean was of Criminal Appeals held that reviewed not e n t i t l e d him at the p r o b a t i o n - r e v o c a t i o n 6 [Ms. ( A l a . C r i m . App. counsel the probationer decision circuit Dean v . S t a t e , see Donaldson v. S t a t e , to represent The C o u r t the So. 3d rules C r i m . App. 2 0 0 6 ) , t h e C o u r t the argument to represent Appeals to appoint to the general c o u r t must a d v i s e request that Dean's p r o b a t i o n . the probation-revocation trial in refusing probation-revocation a n d Windom, J J . , d i s s e n t i n g ) . exceptions among hearing. revoking court's revoking h i s arguing, erred Dean's and C R - 0 8 - 1 082 , D e c e m b e r 18 , 200 9] 2009)(Main Appeals, that review to appoint of judgment him at the maintained revocation Court court's the c i r c u i t to hearing. court had 1090754 erred i n not appointing record indicated that mitigate his failure So. 3 d a t ___ . reversed and to represent "Dean a l l e g e d f a c t s Dean b e c a u s e t h e that might to report to h i s probation Accordingly, the c i r c u i t ordered counsel court's the c i r c u i t the Court order court D e a n a t a new p r o b a t i o n - r e v o c a t i o n The S t a t e p e t i t i o n e d this officer." of C r i m i n a l revoking to appoint tend Dean's counsel probation to represent hearing. Court for certiorari review We g r a n t e d State's a claim circuit court to determine, refused indigent probationer preserved of revocation We Appeals hearing note erred by (Ala. that App. in ordering Dean was a that represent a an h e a r i n g must be new entitled the proceeding hearing. State, i s entitled. Crim. to the probationto appointed him. initially the counsel of and, i f n o t , whether the Court at which probation-revocation defendant appoint whether at a probation-revocation to represent granted first, f o r appellate review Criminal counsel to ___ Appeals the d e c i s i o n of the Court of C r i m i n a l Appeals. petition to 2009). not under Probation a Killen right v. Once 7 to State, the State is which 28 So. grants review a is a privilege a criminal 3d 823, 824 probation, 1090754 however, i t cannot discretion. Id. defendant's some procedural process due absolute to not in a Pratt v. does liberty, not only "'[t]he counsel and or waiver So. App. However, at Fifth to counsel only and by constitutional i s not virtue Fourteenth probationers the duty of to 471, to 482 the full due- because of [Sixth is his essential 2d Crim. 130 App. (Ala. Crim. proceeding, a S i x t h Amendment r i g h t ; t h e Due provide Process the Clause State counsel i n a l lprobation-revocation cases. 8 an is void."'" (Ala. 127, convict a probation-revocation the or Amendment] an safeguard 144 So. (1972). conditional liberty. this Amendments, and to entitled is a u t h o r i t y to 142, 630 a defendant thereof, 2d State, 1993)). a her its implicates proceeding constitutional B e r r y v. exists entitled c ] o n v i c t i o n without 851 U.S. deprive at probation-revocation criminal p r e r e q u i s i t e to State, a 408 h i s or 2002)(quoting the r i g h t probationer Brewer, provided jurisdictional accused[, v. privilege revocation in is Undisputedly, "right a process revocation the probation however, rights probation revoke interest, Morrissey probationer, her Because liberty proceeding. A simply under i s not for As right the under a indigent the United 1090754 States U.S. Supreme 778, Court 790 explained in Gagnon v. Scarpelli, 411 (1973): "We thus find no justification for a new i n f l e x i b l e c o n s t i t u t i o n a l r u l e w i t h r e s p e c t to the r e q u i r e m e n t of c o u n s e l [at a probation-revocation hearing]. We t h i n k , r a t h e r , t h a t t h e d e c i s i o n as t o t h e n e e d f o r c o u n s e l m u s t be made on a c a s e - b y - c a s e b a s i s i n t h e e x e r c i s e o f a s o u n d d i s c r e t i o n by the state a u t h o r i t y charged with responsibility for administering the probation and parole system. A l t h o u g h t h e p r e s e n c e and p a r t i c i p a t i o n o f counsel will probably be both undesirable and constitutionally unnecessary in most revocation hearings, there w i l l remain c e r t a i n cases i n which fundamental fairness -the touchstone of due p r o c e s s -- w i l l r e q u i r e t h a t t h e S t a t e p r o v i d e at i t s expense counsel f o r i n d i g e n t p r o b a t i o n e r s . " Likewise, our c a s e l a w has established: " ' [ T ] h e r e i s no a u t o m a t i c r i g h t t o c o u n s e l i n a probation revocation proceeding.' Law v . S t a t e , 778 So. 2d 2 4 9 , 250 ( A l a . C r i m . A p p . 2 0 0 0 ) ( c i t i n g S p e n c e v. State, 7 66 So. 2d 20 6, 207 (Ala. Crim. App. 1999)). Whether a probationer is entitled to c o u n s e l i s d e t e r m i n e d on a c a s e - b y - c a s e b a s i s . See Law, 778 So. 2d a t 2 5 0 ; A r m s t r o n g v . S t a t e , 294 A l a . 1 0 0 , 312 So. 2d 620 (1975)." G i b b o n s v. First, Appeals for State, 882 the State contends in holding that erred appellate erred review i n r e f u s i n g to probation-revocation So. his 2d 381, 382 that Dean contention appoint counsel hearing. ( A l a . C r i m . App. the did not that to In P u c k e t t 9 Court of have the Criminal to preserve circuit represent v. 2003). State, him 680 court at So. the 2d 1090754 980 ( A l a .Crim. recognized App. that the probation-revocation rules of inform that court has will a probationer represent the Court rules of as review One applied since to been the f a i l u r e Appeals applied exception to i s Judge Law v . S t a t e , of a c i r c u i t to request Shaw preservation 1145 explained exception (Ala. Crim. the rationale i n Davis v. counsel to hearing at the ( A l a . C r i m . App. 2000). f o r recognizing State, 855 App. 2003)(Shaw, J . , c o n c u r r i n g this So. 2d 1142, specially), stating: " I f a p r o b a t i o n e r d o e s n o t know t h a t he o r s h e h a s the r i g h t t o request counsel because the t r i a l c o u r t n e v e r i n f o r m e d t h e p r o b a t i o n e r o f t h a t r i g h t , he o r she c a n n o t p o s s i b l y know t o o b j e c t to the t r i a l court's f a i l u r e to advise the probationer of the r i g h t to request counsel. The f a c t t h a t ' s i t u a t i o n s e x i s t i n which a p r o b a t i o n e r , i f not r e p r e s e n t e d by c o u n s e l , may n o t r e c e i v e t h e p r o t e c t i o n s g u a r a n t e e d b y M o r r i s s e y v . B r e w e r , 408 U.S. 4 7 1 , 92 S . C t . 2 5 9 3 , 33 L.Ed.2d 484 (1972), i n probation revocation proceedings,' Law [ v . S t a t e ] , 778 S o . 2 d [ 2 4 9 ] , 250 [ ( A l a . C r i m . App. 2 0 0 0 ) ] ( f o o t n o t e o m i t t e d ) , coupled with the inherent inconsistency i n requiring a probationer to object to the t r i a l court's failure to advise him or her of the r i g h t t o request counsel 10 an court to at a probation-revocation 778 S o . 2 d 2 4 9 those that e v e n t h o u g h a n o b j e c t i o n on t h a t b a s i s was n o t e n t e r e d hearing. to probation-revocation recognized of h i s or her r i g h t the probationer of Criminal preservation proceedings. preservation proceedings appellate 1996), 1090754 when t h e p r o b a t i o n e r i s n o t a w a r e t h a t he o r s h e h a s such a r i g h t , r e q u i r e s that t h i s Court address the m e r i t s o f [a p r o b a t i o n e r ' s ] c l a i m , e v e n t h o u g h i t i s b e i n g r a i s e d f o r t h e f i r s t t i m e on a p p e a l . " In Dean, circuit court's probationer of the Court of refusal to Criminal appoint at a probation-revocation exceptions recognized that the to the general i n a probation-revocation a circuit court failed to inform her right to request the Court of C r i m i n a l Appeals So. 2d at Appeals in 610 n. an a t t o r n e y . 1. stated that In r e f u s i n g to appoint Donaldson, counsel counsel rules held that a represent to hearing a f i t within of -- a probationer Court the c i r c u i t to represent a claim of h i s or i t sconclusion, Donaldson the one preservation proceeding To s u p p o r t cited a claim that Appeals v. State, of court 982 Criminal had erred a probationer at a revocation hearing involved the fundamental r i g h t to counsel and, not consequently, t h a t an o b j e c t i o n i n t h e c i r c u i t required for appellate The State maintains erred i n holding that issue f o r review probationer to represent because, i s informed was review. that Dean court the Court was of C r i m i n a l not r e q u i r e d i t says, Appeals to preserve the question the whether a of h i s or her r i g h t to request counsel the probationer at a probation-revocation hearing 11 1090754 is materially different c o u r t e r r e d i n not probationer. from the q u e s t i o n appointing counsel It argues Donaldson to the extent general that an rules the circuit agree preservation court informed failed different a from appointing Therefore, the at with to to appoint the of to request counsel. We a probationer do, however, erred in of C r i m i n a l A p p e a l s an preservation his indigent exception or her right to with agree the Court of erred counsel for appellate Court to represent d o e s n o t h a v e t o be p r e s e r v e d review. recognized that In Gagnon, "there will 12 the not probationer. represent of is materially of a c l a i m t h a t the c i r c u i t probationer claim represent Criminal Appeals that review i n r e f u s i n g to appoint the represented is court to i s encompassed w i t h i n the inform be indigent probationer failure to a probationer o r she Court counsel a hearing an to to hearing. circuit cannot agree w i t h reverse counsel t h a t he represent indigent regard whether probation-revocation the an t h a t an e x c e p t i o n a revocation that circuit should Court to appoint State whether failure this exists to request counsel we at the of the r i g h t counsel that with to represent that i t holds indigent probationer We by of that whether the an indigent i n the c i r c u i t United remain States certain court court Supreme cases in 1090754 w h i c h f u n d a m e n t a l f a i r n e s s -will r e q u i r e t h a t the indigent satisfy it refusal probationer f o r an to when was Court Criminal circuit entered court represent the Appeals refusing to in court to circuit of on appoint Our law a right revocation be hearing defendant him or in the circuit an unqualified that the counsel to circuit an appeal indigent even Review by the that the to h e a r i n g was Court circuit of proper. Criminal court represent no counsel appoint the i f erred Dean by at the hearing. is clear to that a contention to to i n Gagnon, review court. Dean's refusing to -¬ for Accordingly, represent raised maintains holding probation-revocation represent by is the 790. concern expressed counsel Appeals State erred indigent in erred at Dean a t t h e p r o b a t i o n - r e v o c a t i o n Next, have U.S. issue process at i t s expense counsel appellate appoint that objection of 411 fundamental-fairness i s appropriate court's State provide probationers." the t h e t o u c h s t o n e o f due that a probationer represented and that the is entitled her court. right at by does not counsel at determination to have counsel a probation-revocation "Although to counsel 13 a probationer at a necessarily a of probationwhether an appointed to hearing does not rests have probation-revocation 1090754 hearing, 1995), Coon v. State, 675 So. i t i s i n c u m b e n t upon the whether the probationer has probation." T u r n e r v. State, App. Rule 2007). 27.6(b), 2d 94, 95 sentencing such a right 981 So. (Ala. Crim. court before 2d 444, Crim. A l a . R. to P., App. determine revoking 447 (Ala. his Crim. provides: "The p r o b a t i o n e r i s e n t i t l e d t o be p r e s e n t a t t h e h e a r i n g a n d t o be r e p r e s e n t e d b y c o u n s e l . Counsel will be appointed to represent an indigent p r o b a t i o n e r upon r e q u e s t : " ( 1 ) I f t h e p r o b a t i o n e r makes a c o l o r a b l e c l a i m t h a t t h e p r o b a t i o n e r has not c o m m i t t e d t h e a l l e g e d violation of the conditions or regulations of probation or the instructions issued by the p r o b a t i o n o f f i c e r ; or " ( 2 ) E v e n when t h e v i o l a t i o n i s a m a t t e r of public record or i s uncontested, i f there are s u b s t a n t i a l reasons t h a t j u s t i f y or m i t i g a t e the violation and that may make revocation inappropriate, and the reasons are complex or o t h e r w i s e d i f f i c u l t to develop or p r e s e n t . " See also Gagnon, consideration appointed probationer to in 411 U.S. at 790-91 determining represent a p p e a r s t o be a whether (recognizing counsel probationer capable is of s p e a k i n g that needs to one be "whether the effectively for himself"). Dean a d m i t t e d failing t h a t he v i o l a t e d to r e p o r t to h i s p r o b a t i o n under Rule 27.6(b)(2), A l a . R. a term of h i s p r o b a t i o n officer. Crim. 14 P., by T h u s , an a n a l y s i s m u s t be conducted to 1090754 d e t e r m i n e w h e t h e r Dean was e n t i t l e d to represent circuit court's indigent at the refusal probationer probationer the him Crim. says, App. reversible circuit error unless an the harmed by 2000). reasons that the c i r c u i t court d i d not exceed i n r e f u s i n g to appoint for failing contends court probation his officer Initially, that Dean reasons and t h a t was allegation not that we note counsel to Nothing i n the record hearing with regard had adequately the reasons We committed develop." explained to to report to h i s agree. probation-revocation and a d i d not new include criminal to h i s probationary to report 15 status, an offense. i n d i c a t e s t h a t D e a n was c o n f u s e d t h a t he f a i l e d the were s t r a i g h t f o r w a r d Dean's complex to h i s probation d i f f i c u l t to for failing that unusually Dean to report or otherwise not d i f f i c u l t to develop. violation to represent A E v a n s v . S t a t e , 794 S o . 2 d 1 2 3 4 , 1 2 3 6 are not "complex State hearing counsel hearing. Dean a t t h e p r o b a t i o n - r e v o c a t i o n h e a r i n g b e c a u s e , i t Dean's officer and not scope of i t s d i s c r e t i o n represent The to appoint appointed c a n show t h a t he o r s h e was m a t e r i a l l y The S t a t e m a i n t a i n s the probation-revocation is absence of c o u n s e l . (Ala. t o have c o u n s e l at the the a l l e g e d to h i s probation officer, 1090754 or the consequences establishes circuit for that court Dean was charged including officer. Dean probation officer living the in elaborated his probation would be officer, revoked restitution report counsel or failing loss reason because of he lost of his his probation report to h i s Dean's to report his residence. reconsideration, failing he was on unable to report Dean to h i s that he knew he Indeed, was Dean supposed officer, circuit court's to b u t he d i d n o t . to appoint Dean a t t h e p r o b a t i o n - r e v o c a t i o n hearing due-process rights. to h i s probation -- t o pay h i s f i n e s and the s t r e e t s . the revocation proceedings housing to d i d not for for living the to represent violate the e x p l a i n i n g t h a t he was a f r a i d h i s p r o b a t i o n case, did not render with violations report he after motion i n h i s motion this to that street to h i s probation In several failing his a n d was acknowledged communicated record a n d s t a t e d t h a t he d i d n o t r e p o r t b e c a u s e he Additionally, on the and d i d n o t h e s i t a t e t o a d v o c a t e with admitted on Indeed, on w o r k r e l e a s e . probation, was violation. effectively at the hearing h i s placement Dean for this were neither 16 failure fundamentally Dean's officer complex -nor unfair reasons f o r fear and t h e difficult to 1090754 develop or p r e s e n t . for alleged violation the The mere e x i s t e n c e o f m i t i g a t i n g does not appointed c o u n s e l ; the m i t i g a t i n g otherwise difficult were not. appoint claim that officer an harmed by the support a absence of appointed of error. not was that represent record does was by revocation not counsel to represent hearing, the judgment i s r e v e r s e d , and consistent to Dean's probation any facts or that Dean was r e c o r d s i m p l y does not materially him at entitled harmed the support a to by the probationhave finding c o u r t exceeded the scope of i t s d i s c r e t i o n appoint court him. the he or the m i t i g a t i o n establish The to reasons Moreover, supported represent or circuit report to h i s cannot Dean "complex Dean's developed Dean d i d not to the have could that m u s t be not absence of c o u n s e l . hearing to was a probationer present." failure allegation counsel Because Appeals bare reasons or allegation, finding revocation the Dean attorney i s a bare A to for t o e x p l a i n why evidence. circuit develop Consequently, counsel evidence to entitle reasons with R E V E R S E D AND this t h i s case opinion. REMANDED. 17 Dean of the at the Court i s remanded f o r counsel that the in refusing probationof Criminal proceedings 1090754 Cobb, Murdock, C . J . , and Lyons, Woodall, a n d Shaw, J J . , c o n c u r . 18 Smith, Bolin, Parker,

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