Steven Brad Mulkey v. State of Alabama (Calhoun Circuit Court: CC-18-1367.71)

Rel: August 23, 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-2022-1234
_________________________

Steven Brad Mulkey

v.

State of Alabama

Appeal from Calhoun Circuit Court
(CC-18-1367.71)

On Application for Rehearing

COLE, Judge.

The opinion issued on May 3, 2024, is withdrawn, and the following

is substituted therefor.
CR-2022-1234

Steven Brad Mulkey appeals the Calhoun Circuit Court's judgment

revoking his probation based on his failing to complete a required

rehabilitation program. 1 We affirm.

Facts and Procedural History

Mulkey was convicted of first-degree burglary, a violation of § 13A-

7-5, Ala. Code 1975, and was sentenced to 120 months in prison. That

sentence was split and Mulkey was ordered to serve 18 months'

imprisonment, and the balance of the sentence was suspended for

Mulkey to serve 102 months of probation. Mulkey began serving

probation on January 16, 2021, and, on May 23, 2022, he received a 25-

day "dunk" for violating his probation by failing to report as directed. On

August 18, 2022, Mulkey's probation officer filed a delinquency report,

alleging that Mulkey had again violated his probation by failing to

submit to treatment and monitoring, another technical violation. In

1Section 15-22-54(e)(1)(a), Ala. Code 1975, provides that probation

shall be revoked for a technical violation "[i]f the underlying offense was
a violent offense as defined in Section 12-25-32 and a Class A felony."
Because Mulkey's underlying offense was a first-degree burglary, a Class
A felony under § 13A-7-5, Ala. Code 1975, and a violent offense under §
12-25-32(15)(a)(22), Ala. Code 1975, Mulkey was subject to revocation
upon the circuit court's finding to a "reasonable satisfaction" that he
committed a technical violation.
2
CR-2022-1234

2021, Mulkey was "being prosecuted on a new criminal charge" and was

ordered to complete the "Seven Springs" rehabilitation program as a

condition of reinstatement of his probation. Mulkey, however, left the

program before completion, resulting in "Mulkey's third delinquency

report since being placed on probation." (C. 5.) Mulkey was arrested on

August 25, 2022, for absconding.

At Mulkey's initial appearance before the circuit court, he was

advised of his "rights to and under [a] probation revocation hearing." (C.

11.) Mulkey stated that he understood his rights and that he wanted a

revocation hearing. The circuit court appointed counsel to represent

Mulkey and set Mulkey's revocation hearing for September 21, 2022.

Mulkey was present with counsel at his revocation hearing. The

circuit court asked Mulkey's counsel if he and Mulkey had reviewed the

report. Mulkey's counsel acknowledged looking at the report and stated:

"I would like to present, you know, Mr. Mulkey was in rehab at one point,

and he did leave that rehab. However, [Mulkey] has been accepted to

another rehab ... That's correct." (R. 3 (emphasis added).) Mulkey's

counsel then asked the circuit court to give Mulkey another opportunity

to comply with probation and asked that Mulkey be "release[d] on the

3
CR-2022-1234

condition that he does go to Seven Springs and he does mandatorily

complete that program." (R. 3.) Mulkey's counsel also told the circuit

court that, if Mulkey is given another chance and again "leaves" the

program, "then he needs to be right back where he is right now wearing

this jump suit." (R. 3.) Mulkey's probation officer volunteered that after

Mulkey left the court-ordered program at "Seven Springs," Mulkey

"showed up in [his] office saying he was given permission by his attorney

to leave." (R. 4.) Mulkey's counsel vehemently denied giving "such

advice." The circuit court stated its understanding that "there's no

question [Mulkey] did not submit to treatment and monitoring in terms

of violation of [probation] condition number 10." (R. 4.) Mulkey's counsel

again responded with an admission that "[Mulkey's] learned his lesson,

Judge." (R. 4.) Both Mulkey and his counsel proceeded to inform the

court how many days Mulkey had spent in jail since his arrest. The

circuit court asked Mulkey whether "you still feel like you need a hearing

for the record because the probation officer is still recommending

[Mulkey] be revoked." (R. 4.) The State's counsel responded "[t]hat would

be their [Mulkey's and his counsel's] decision," but that he was "ready to

go forward." (R. 4.) Mulkey's counsel immediately responded with yet

4
CR-2022-1234

another admission that "[Mulkey's] owned up to [not completing the

program], Judge. We're not trying to duck responsibility." (R. 5

(emphasis added).) Mulkey's counsel then instructed Mulkey to

"apologize right now for telling them I said something I absolutely did

not say." (R. 5.) Mulkey immediately responded, "I apologize for that.

And for the record I didn't say that he told me I could leave. I said I called

him after I left." (R. 5 (emphasis added).) Counsel confirmed that

Mulkey "did do that," i.e., telephone counsel after he left the program.

(R. 5.)

The circuit court summarized what had been said at the hearing,

noting that Mulkey "is present in the courtroom … and he's represented

by counsel, … and there has been an admission that he has, in fact, failed

to submit to treatment and monitoring in violation of condition number

19, charge number one." (R. 5.) Mulkey and the court then discussed

how much time Mulkey had already spent in prison. The circuit court

concluded, based on "the stipulations by counsel for the defendant and

the defendant himself being present in court," that the court was

"reasonably satisfied [Mulkey] violated condition number 19, failure to

submit to treatment and monitoring, of … his probation"; therefore, the

5
CR-2022-1234

circuit court revoked Mulkey's probation. (R. 7.) Neither Mulkey nor

his counsel made any additional statement, and the circuit court's

written order revoking Mulkey's probation again expressly noted that

Mulkey had admitted violating the condition of his probation.

On October 18, 2022, Mulkey moved the circuit court to reconsider

the revocation of his probation. Mulkey's motion never alleged any error

in his probation-revocation proceeding but only offered "mitigating

factors and circumstances" as to why his "exit of '7 Springs Rehabilitation

Program' should not result in his incarceration," namely that he "ha[d]

been punished enough" and that, "with the exception of the twenty-five

day 'Dunk' pursuant to this Court, [he] had proven himself an exemplary

patient at 7 Springs." (C. 25, 30.) In short, Mulkey merely asked the

circuit court, as he did at the hearing, to give him another opportunity to

comply with the conditions of probation. This appeal follows.

Standard of Review

"The general rules of preservation apply in probation revocation

proceedings." Singleton v. State, 114 So. 3d 868, 870 (Ala. Crim. App.

2012 (citing Puckett v. State, 680 So. 2d 980 (Ala. Crim. App. 1996)). It

is well settled that " 'to preserve an issue for appellate review the issue

6
CR-2022-1234

must be timely raised and specifically presented to the trial court and an

adverse ruling obtained.' " Cochran v. State, 111 So. 3d 148, 153-54 (Ala.

Crim. App. 2012) (quoting Mitchell v. State, 913 So. 2d 501, 505 (Ala.

Crim. App. 2005)). That a revocation hearing be held is a recognized

exception to the general rules of preservation. See Singleton v. State, 114

So. 3d 868, 870 (Ala. Crim. App. 2012) (recognizing only four exceptions

"to the preservation requirement in probation-revocation proceedings: (1)

that there be an adequate written or oral order of revocation,[]; (2) that a

revocation hearing actually be held,[] (3) that the trial court advise the

defendant of his or her right to request an attorney[, and] … [(4)] that the

circuit court erred in failing to appoint counsel to represent the defendant

during probation-revocation proceedings") (emphasis added) (internal

citations omitted).

In addition, a probation violation need not be proven "beyond a

reasonable doubt." Rather, the circuit court need only be "reasonably

satisfied" that a condition was violated. Singleton v. State, 209 So. 3d

529, 533 (Ala. Crim. App. 2015). Moreover, we will not disturb a circuit

court's decision in a probation-revocation proceeding unless the circuit

court has abused its discretion. See, e.g., Mantez v. State, 83 So. 3d 583,

7
CR-2022-1234

584 (Ala. Crim. App. 2011). A circuit court "abuses its discretion only

when its decision is based on an erroneous conclusion of the law or where

the record contains no evidence on which it could have rationally based

its decision." Id. at 585 (citations omitted).

Analysis

Mulkey argues on appeal that the circuit court erred by failing to

hold a revocation hearing because, he says, a proper waiver was not made

and, moreover, that the circuit court failed to comply with Rules 27.5(b)

and 27.6(c), Ala. R. Crim. P., in finding that Mulkey waived his right to

a hearing. The State argues that Mulkey's arguments are not preserved

for appellate review because, it says, Mulkey never argued below that he

was deprived of a hearing, that he did not waive his right to a hearing, or

that the waiver rules were not followed. The State also contends that

this Court has ceased recognizing a "distinction between no hearing and

an 'inadequate' hearing" in determining whether an argument is

preserved for appellate review. (State's brief, p. 19.) The State further

contends that a circuit court's failure to comply with the waiver

requirements of Rule 27 is not a recognized exception to the rules of

preservation. In sum, the State argues that, if a hearing "was actually

8
CR-2022-1234

held," any infirmities in that hearing, including the validity of a waiver,

are not subject to appellate review unless preserved below. (State's brief,

pp. 19-20.) The State then asks us to "return to [] long established

jurisprudence and recognize that alleged inadequacies" in Mulkey's case

-- whether a hearing was waived and whether the circuit court failed to

comply with the waiver rules in Rules 27, Ala. R. Crim. P. -- were not

preserved for appellate review. (State's brief, p. 20.) We now take this

opportunity to clarify the application of the recognized exception to the

rules of preservation that a probation-revocation hearing must occur.

I. Is Mulkey's argument that he did not waive a revocation hearing
preserved?

The State contends that Mulkey's argument that he did not waive

a revocation hearing is not preserved for appellate review. More

specifically, the State argues that the following are not exceptions to the

general preservation requirements: (1) the adequacy of a "hearing," (2)

the adequacy of a waiver, and (3) the satisfaction of the Rule 27 waiver

requirements. We address each of the State's contentions separately.

A. What constitutes a hearing?

The State first argues that there should be a "distinction between

no hearing and an 'inadequate' hearing" and "only the complete failure

9
CR-2022-1234

to conduct a hearing" should be addressed on appeal when unpreserved

below. (State's brief, pp. 17, 19.) Contrary to the State's contention,

however, a probationer's mere appearance before a circuit court does not

constitute a "hearing" that would satisfy the "opportunity to be heard,"

which the minimum standards of due process require.

The Alabama Supreme Court clearly settled this matter in Ex parte

Anderson, 999 So. 2d 575, 578 (Ala. 2008), in which that Court recognized

that, if a probationer appears before the circuit court (which is a hearing

in only the most rudimentary understanding of that word) and denies

committing a probation violation, he or she must be afforded counsel and

a revocation hearing. The Alabama Supreme Court clarified that to

constitute a revocation hearing, the proceeding must encompass the full

meaning of that word. In sum, when a probationer denies the factual

basis of the charges that he or she violated probation, the minimum

standards of due process require that a probationer be provided " 'an

opportunity to adduce proof and to argue (in person or by counsel) as to

the inferences flowing from the evidence.' " Id. (emphasis added)

(quoting Fiorella v. State, 121 So. 2d 875, 878 (Ala. 1960)). Indeed, this

is how "[a] hearing ordinarily is defined." Id. (quoting Fiorella, 121 So.

10
CR-2022-1234

2d at 878). Without this opportunity, or a valid waiver of that

opportunity, " 'no hearing was held.' " Id. (quoting Anderson v. State, 999

So. 2d 573, 575 (Ala. Crim. App. 2007) (Welch, J. dissenting)). This Court

has properly followed Ex parte Anderson, repeatedly recognizing that if

a probationer does not admit his violations, there is no waiver, and, if

there is no waiver and no evidence is presented, then whatever "hearing"

occurred is "no hearing" at all. See, e.g., Bailey v. State, 372 So. 3d 560

(Ala. Crim. App. 2022); Wilkerson v. State, 372 So. 3d 573 (Ala. Crim.

App. 2022); Williford v. State, 329 So. 3d 86, 91-92 (Ala. Crim. App. 2020);

Allen v. State, 285 So. 3d 864 (Ala. Crim. App. 2019); and Saffold v. State,

77 So. 3d 178 (Ala. Crim. App. 2011).

In sum, a "hearing" is a hearing only if it satisfies the minimum

standards of due process -- an opportunity to adduce proof and make

arguments.

B. Does the validity of a waiver constitute an exception to the
rules of preservation?

The State's second argument, that the lack of a valid waiver must

be preserved to be addressed on appeal, also fails. The Alabama Supreme

Court equally settled in Ex parte Anderson, supra, that the validity of a

waiver necessarily constitutes an exception to the preservation rules.

11
CR-2022-1234

See id. at 578 ("when he denied the charges, he was not afforded counsel

and a revocation hearing for a later date was not set … a revocation

hearing was not held and [] Anderson did not waive a revocation

hearing"). In holding "that a revocation hearing was not held and that

Anderson did not waive a revocation hearing," the Alabama Supreme

Court reversed this Court's holding that Anderson's revocation was due

to be affirmed because he had not preserved the issues he raised on

appeal. Id. at 577-79. The Alabama Supreme Court expressly noted that

"the failure to hold a revocation hearing is one of the exceptions to the

general rule requiring a defendant to preserve his arguments for appeal

by first raising them in the trial court." Id. at 578. The Court, thus,

implicitly held that whether a valid waiver occurred was necessarily

included within the preservation exception that a hearing occur. Clearly,

under Ex parte Anderson, the argument that a hearing was not waived

equates to an argument that no hearing was held; and, it is well settled

that whether a hearing was held need not be preserved for appeal

because minimum standards of due process must be satisfied regardless

of preservation. See Morrissey v. Brewer, 408 U.S. 471 (1972) (to satisfy

minimum constitutional requirements before revoking parole, a parolee

12
CR-2022-1234

is entitled to, among other rights, the "opportunity to be heard in person

and to present witnesses and documentary evidence" and "to confront

and cross-examine adverse witnesses") (emphasis added), and Gagnon v.

Scarpelli, 411 U.S. 778 (1973) (applying the principles established in

Morrissey to probation revocations).

In sum, whether the waiver of a revocation hearing satisfies

minimum standards of due process must be addressed on appeal

regardless of whether the argument was presented below because it falls

within the preservation exception that a hearing be held.

C. Does a waiver's compliance with the Rule 27 requirements
also fall within the preservation exception that a hearing be
held?

Although the Alabama Supreme Court's holding in Ex parte

Anderson makes clear that the constitutional validity of a waiver falls

within the exception to the preservation rules that a hearing be held, Ex

parte Anderson did not address, implicitly or otherwise, whether a

waiver's compliance with the Rule 27 requirements must be preserved

for appeal. The Alabama Supreme Court prefaced its waiver

consideration by noting that a revocation hearing may be waived if a

probationer is "given 'sufficient prior notice of the charges and sufficient

13
CR-2022-1234

notice of the evidence to be relied upon' and if he 'admits, under the

requirements of Rule 27.6(c), that he committed the alleged violation.' "

Id. at 577 (quoting Rule 27.5(b), Ala. R. Crim. P.). However, although the

Alabama Supreme Court quoted Rule 27.5(b), it did not address whether

those requirements had been met. Rather, it reversed this Court's

holding that Anderson had not preserved his argument for appeal

because Anderson denied the violations and never told the court that he

was waiving his right to a revocation hearing. Id. at 577-78. The Court

did not analyze Anderson's waiver based on his knowledge of the evidence

relied upon, only his notice of the charges -- when he was presented with

the charges, Anderson denied them. Id. at 576. Moreover, the Alabama

Supreme Court did not analyze Anderson's waiver under the

requirements of Rule 27.6(c) in holding that "a revocation hearing was

not held and that Anderson did not waive a revocation hearing." Id. at

578. Thus, Ex parte Anderson indicates only that Rule 27.5(b)

memorializes the minimum due-process requirements -- notice of the

violation and an admission -- for a waiver to be valid.

The State argues, however, that our recent jurisprudence has

created "confusion" regarding whether the failure of a waiver to comply

14
CR-2022-1234

with Rule 27 constitutes an exception to the preservation rules in a

probation-revocation proceeding. According to the State, this Court

appears to have extended the recognized preservation exceptions in

probation-revocation cases to "nonjurisdictional" infirmities, like the

validity of a waiver. We acknowledge that the interplay between what is

required by the minimum standards of due process and what is required

by the rules governing probation revocations may have created some

confusion in the application of the preservation rules and the recognized

exceptions to those rules. Thus, we take this opportunity to review our

recent cases regarding the preservation of a lack-of-proper-waiver

argument.

In Williford v. State, 329 So. 3d 86, 91-92 (Ala. Crim. App. 2020),

this Court held that Williford did not waive her right to a revocation

hearing because she did not admit to violating her probation. Rather,

Williford admitted only "that she had been arrested, which is not a

sufficient basis for the revocation of probation." Id. at 92. As did the

Supreme Court in Ex parte Anderson, this Court in Williford cited Rule

27.5(b) and noted that, despite Williford's expression that she wanted to

"forgo a revocation hearing," "the record must reflect that Williford was

15
CR-2022-1234

given sufficient notice of the charges and evidence against her and that

she admitted to a violation of the conditions of her probation." Id.

Notably, this Court did not rely on the Rule 27.6(c) waiver requirements.

Moreover, in reversing the judgment and remanding the case for a

hearing, we emphasized the most crucial aspect of waiver -- that Williford

"refused to do that which is required in order to waive such a hearing,

i.e., admit that she had violated a condition of her probation." Id. at 93.

Our holding, like the Alabama Supreme Court's in Ex parte Anderson,

recognized that to constitute a valid waiver, the probationer must admit

the alleged violation, and, certainly, to admit a violation, the probationer

must be aware of what the alleged violation is. Finally, Williford noted

that "it is incumbent upon the circuit court to ensure" that any future

waiver comply with Rules 27.5 and 27.6. Id.

In Bailey v. State, 372 So. 3d 560, 565 (Ala. Crim. App. 2022), this

Court reversed a probation revocation, noting "that the court failed to

conduct a probation-revocation hearing in compliance with Rule 27.6."

This Court specifically explained, however, that Bailey's revocation was

reversed because, at the "hearing," "Bailey denied that he absconded

from supervision as alleged in the delinquency report" and "explained

16
CR-2022-1234

why he did not believe he had absconded." Id. at 564 (emphasis added).

Then, despite Bailey's denials, "[t]he State presented no evidence at the

hearing regarding the allegation of absconding." Id. at 564-65. This

Court further noted that "the record does not indicate that Bailey waived

his right to a probation-revocation hearing pursuant to Rule 27.5(b)." Id.

To the extent such language in Bailey could be misread as suggesting

that a court's failure to comply with Rule 27 may be raised on appeal

without being preserved below, it is dicta. Bailey provided no reason for

this Court to distinguish a waiver's compliance with Rule 27, the failure

of which must be preserved to be addressed on appeal, from a waiver that

satisfies the minimum standards of due process, a determination

excepted from general preservation requirements. Our holding that no

revocation hearing was held was clearly based on Bailey's repeated

denials of the charge of absconding. In short, Bailey never admitted to

the violation and, thus, never attempted a "waiver." And, the State never

presented evidence. Thus, this Court held in Bailey that no "hearing"

occurred.

In Wilkerson v. State, 372 So. 3d 573 (Ala. Crim. App. 2022), the

probationer again argued that a revocation hearing was not held, a

17
CR-2022-1234

recognized exception to the general preservation rules, because he did not

admit to violating his probation, he did not waive his right to a hearing,

and the State presented no evidence. We agreed that no waiver occurred

and, thus, no hearing had been held because Wilkerson did not admit a

violation but, rather, "tried to present a defense to the failed drug tests."

Id. at 579. Although this Court recognized that a person may waive his

or her right to a revocation hearing under Rules 27.5 and 27.6, our

holding that no waiver occurred did not depend on any analysis of the

specific Rule 27.6(c) requirements. Instead, we quoted from our earlier

decision in Gann v. State, 337 So. 3d 1217 (Ala. Crim. App. 2021), in

which we held that no valid waiver occurred because the probationer did

not admit to a violation.

" '[B]ecause there was not an admission of the truthfulness of
the allegations, there was not a sufficient basis for the
revocation of [Wilkerson]'s community-correction 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 hearing at which it could receive evidence
on the allegations contained in the delinquency report.' "

Id. at 579 (quoting Gann, 337 So. 3d at 1223).

18
CR-2022-1234

Although Ex parte Anderson, supra, Williford, supra, Gann, supra,

Bailey, supra, and Wilkerson, supra, all recognized that Rule 27.5(b)

requires "sufficient prior notice of the charges and … the evidence" as

well as an admission that the probationer "committed the alleged

violation," none of these cases addressed the "evidence" component of the

rule, but, rather, considered only whether the probationer was aware of

the alleged violations and admitted those violations. These cases all

illustrate that the crux of a valid waiver is that there must be a sufficient

admission of a specific probation violation, which necessarily includes

notice of the alleged violation and an admission of the factual basis for

the violation, not that the specific requirements of Rules 27.5(b) and

27.6(c) be satisfied.

Although we have often recognized and referenced the waiver

requirements established in Rules 27.5(b) and 27.6(c) when addressing

the validity of a waiver of a probation-revocation hearing, this Court has

never held, expressly or implicitly, that compliance with the various

specific waiver requirements constitutes an exception to the general rules

of preservation applicable to probation-revocation proceedings. Our

holdings have merely recognized that to waive a revocation hearing, the

19
CR-2022-1234

minimum standards of due process require notice of the alleged violation

and an admission of a violation. Moreover, our recent holdings recognize

that whether a valid waiver of a revocation hearing occurred is

inextricably intertwined with whether a probationer was

unconstitutionally deprived of a revocation hearing. Thus, whether a

probationer waived a hearing is necessarily included within the

preservation exception regarding whether a hearing occurred.

In sum, we hold that the failure to conduct a probation-revocation

hearing when that hearing has not been waived within the minimal

standards of due process qualifies for an exception to the application of

the general rules of preservation. Accordingly, a probationer may argue

on appeal, as Mulkey does, that he never waived a revocation hearing,

regardless of whether that argument was raised below. It does not follow,

however, as Mulkey contends, that a probationer may argue for the first

time on appeal that the circuit court failed to strictly comply with the

Rules of Criminal Procedure in determining whether a valid waiver

occurred. The waiver requirements established by Rules 27.5(b) and

27.6(c), Ala. R. Crim. P., are not all "jurisdictional" or required by

minimum due-process standards. Thus, we hold that an argument that

20
CR-2022-1234

the waiver rules were not complied with must be preserved below to be

addressed on appeal. However, if no Rule 27 argument was made below,

due process requires only notice of the charged violation and an

admission of that violation -- requirements memorialized in Rule 27.6(b).

Thus, only the argument that a waiver fails to comply with due process

may be addressed on appeal if not made below.

We further note that our waiver determination has never depended

upon a satisfaction of the element of Rule 27.5(b) that there be an

understanding of the "evidence relied upon," much less that the

requirements of Rule 27.6(c) be strictly satisfied. Rather, what is

required is a minimally sufficient understanding of the facts, which is

shown by an admission to the specific violation for which a probationer

received notice. Moreover, even when a failure to comply with the waiver

rules has been preserved, the Alabama Supreme Court has required only

"substantial compliance" within the "spirit" of the rules. See Wagner v.

State, 197 So. 3d 517 (Ala. 2015).

With these principles in mind, we now consider whether Mulkey

waived his right to a revocation hearing in compliance with the minimum

due-process standards established by the United States Supreme Court

21
CR-2022-1234

in Morrissey v. Brewer, 408 U.S. 471 (1972) and Gagnon v. Scarpelli, 411

U.S. 778 (1973), and memorialized in Rule 27.5(b)(1)'s requirements that

an admission be made only after the probationer "has been given

sufficient notice of the charges."

II. Did Mulkey waive his right to a revocation hearing?

Mulkey's argument that he did not waive a revocation hearing is

without merit because Mulkey's waiver satisfied minimum due-process

standards.

In determining that Mulkey waived his right to a revocation

hearing, we note that in Ex parte Anderson and subsequent cases have

made clear that only two Rule 27.5(b) requirements must be considered

in addressing the minimal constitutional adequacy of a waiver -- that

"[t]he probationer has been given sufficient prior notice of the charges"

and that the probationer "admits … that he committed the alleged

violation." Rule 27.5(b) further requires that the probationer have

"sufficient notice of the evidence to be relied upon" and that "[t]he

probationer admits under the requirements of Rule 27.6(c), that he

committed the alleged violation." (Emphasis added.) Rule 27.6(c) then

requires, even more specifically, that, "[b]efore accepting an admission by

22
CR-2022-1234

a probationer that the probationer has violated a condition … of

probation …, the court shall address the probationer personally." In

addition, the circuit court

"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 proceeding 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."

Rule 27.6(c), Ala. R. Crim. P.

23
CR-2022-1234

Although we routinely caution circuit courts to adhere to the

requirements of Rules 27.5(b) and 27.6(c) in determining whether a

probation-revocation hearing has been waived, compliance with these

rules is not required to satisfy the minimum standards of due process.

Accordingly, any argument that the specific requirements of Rule 27.6

were not met must be raised below to be preserved on appeal. However,

as already noted, even if not raised below, a waiver of a revocation

hearing must satisfy minimum due-process standards to be valid. Due

process is satisfied when a probationer has been given "sufficient prior

notice of the charges" and "admits … that he committed the alleged

violation." Rule 27.5(b). See e.g., Ex parte Anderson, supra, Williford,

supra, Gann, supra, and Wilkerson, supra. Thus, because Mulkey did

not preserve his argument that the circuit court's failed to comply with

Rules 27.5(b) and 27.6(c), we consider only whether the circuit court

complied with the minimum standards of due process in determining

whether Mulkey's waiver was valid.

The record indicates that Mulkey was provided notice of the

charged violation and that he understood the alleged violation. Mulkey

made an initial appearance and requested a hearing. Counsel was

24
CR-2022-1234

appointed, and a hearing was scheduled. Mulkey was present and

represented by counsel at the hearing. Mulkey's counsel informed the

court that he and Mulkey had "looked at" the alleged violation (that

Mulkey left the 7 Springs rehabilitation facility). Mulkey's counsel then

admitted to that violation multiple times during the hearing. Mulkey

also admitted leaving the rehabilitation facility in his dialogue with the

court. The State was nonetheless ready to proceed with the hearing, and

the court asked Mulkey several times what he wanted to do. Again,

Mulkey, like counsel, admitted to the violation of leaving the

rehabilitation facility before completing the program as required.

Mulkey was provided opportunities to speak at the hearing, and he spoke

freely with the court throughout the hearing. Mulkey continued to admit

leaving the facility in his post-hearing motion for reconsideration, and

Mulkey even attached to this motion the evidence of his failure to

complete the program. (C. 34 ("This letter is written to inform you that

[Mulkey] has exited the program on July 28, 2022.") and C. 43 ("This

letter is written to inform you that [Mulkey] has entered the program on

June 14, 2022, and has an expected graduation date of June 13, 2023.").)

25
CR-2022-1234

Clearly, Mulkey had notice of the charged violation and admitted the

violation. The minimum standards of due process were satisfied.

We expressly reject Mulkey's contentions that his revocation must

be reversed because of the circuit court's failure to comply with the

requirements of Rules 27.5(b) and 27.6(c). As already noted, we have

often referenced Rule 27 and cautioned circuit courts to comply with the

waiver rules. However, in order for this Court to review whether a trial

court has complied with the provisions of Rule 27, that issue must be

preserved for appellate review. And, Mulkey never raised this argument

below.

Finally, we also note that, even when the argument that a court

failed to adhere to Rule 27.6(c) requirements has been preserved, the

Alabama Supreme Court has made clear that a waiver of a revocation

hearing is valid if there is "substantial compliance" with the "the spirit"

of the rule.

In Wagner v. State, 197 So. 3d 517 (Ala. 2015), Wagner raised the

argument that his waiver did not comply with Rule 27.6(c), Ala. R. Crim.

P., in his motion for a new hearing. Id. at 520. The Alabama Supreme

Court recognized that Rule 27.6(c) provides that,

26
CR-2022-1234

" '[b]efore 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 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 proceeding 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.' "

Id. at 521 (quoting Rule 27.6(c), Ala. R. Crim. P.). However, the Alabama

Supreme Court did not require strict compliance with Rule 27.6(c) in

finding that Wagner had waived his right to a hearing.

27
CR-2022-1234

The Alabama Supreme Court first determined that "[n]othing in

the record shows that Wagner was not notified of the charges against him

or that he did not understand the nature of those charges." Wagner, 197

So. 3d at 522. The court read the charges, and Wagner's counsel admitted

them. Id. As for the second requirement, "[i]t is without dispute that

Wagner was present at the hearing and that he was represented by court-

appointed counsel." Id. The Court found the third requirement satisfied

because "Wagner, through counsel," stated that he had no witnesses and

"the State called no witnesses." Id. at 522. Accordingly, "Wagner was

not denied his right 'to testify and to present witnesses and other

evidence on [his] own behalf and to cross-examine adverse witnesses."

Id. Fourth, although the transcript did not show that Wagner was

advised that any statement made could be used against him in a later

proceeding, the Court found "that omission to be harmless error because

… Wagner's probation violations do not involve criminal offenses." Id.

Finally, the Court recognized that Wagner was provided opportunities

"to address the trial court in some manner" even though " 'Wagner never

spoke.' " Id. at 523 (quoting Wagner's brief, p. 18). The Court further

noted that "there certainly existed a factual basis for Wagner's

28
CR-2022-1234

admission, even beyond Wagner's own admissions of guilt." Id. The

Alabama Supreme Court thus held that "Wagner received a hearing that

substantially conformed to the requirements of Rule 27.6(c), certainly to

the extent that the spirit of the rule was fully complied with." Id. at 524

(emphasis added).

Based on Wagner, even had Mulkey preserved his argument that

the circuit court failed to strictly comply with Rule 27.6(c), the circuit

court "substantially" complied with the "spirit" of the rule in finding that

Mulkey waived his right to a revocation hearing. First, Mulkey, through

counsel, acknowledged viewing the delinquency report and admitted he

left the rehabilitation program. Second, Mulkey was represented by

counsel. Third, Mulkey was informed of his "rights to and under" a

probation-revocation hearing. Fourth, Mulkey's violation did not involve

a criminal offense. Thus, it would be, at most, harmless error that he

was not advised that an admission of his violation could be used against

him in a subsequent proceeding. Finally, counsel admitted multiple

times that Mulkey left the rehabilitation facility in violation of his

probation. Mulkey's counsel's admissions were made in Mulkey's

presence, and Mulkey, who spoke freely to the court throughout the

29
CR-2022-1234

hearing, was provided multiple opportunities to speak. Indeed, Mulkey

volunteered at the hearing that he telephoned his attorney "after [he]

left" the rehabilitation facility. (R. 5.) Finally, Mulkey provided an

additional factual basis for his violation by submitting letters from "7

Springs Ministries" that he was not expected to complete the

rehabilitation program until June 13, 2023, but that he left the program

on July 8, 2022. (C. 34, 43.)

In sum, unlike the probationers in the cases cited by Mulkey on

appeal, he did not deny but, rather, repeatedly admitted the factual basis

of the probation violation. The circuit court, thus, could be reasonably

satisfied that Mulkey had violated the terms of his probation by leaving

the "7 Springs" rehabilitation facility. Therefore, the circuit court did not

abuse its discretion by finding that Mulkey admitted the factual basis for

his probation violation and waived his right to a hearing.

Conclusion

In conclusion, because minimum due-process standards require

that a probationer receive a hearing before probation is revoked,

Mulkey's argument that he was deprived of a hearing necessarily

includes the argument that he did not waive a hearing. Simply put,

30
CR-2022-1234

whether a revocation hearing is waived is encompassed within the

exception to the general rules of preservation that a revocation hearing

be held. To waive a hearing without violating the minimum standards of

due process, the probationer must have received notice of the alleged

violation and admitted that violation, two of the requirements listed in

Rule 27.5(b). However, any argument that the probationer must have

notice of the specific evidence relied upon under Rule 27.5(b) or that the

probationer's admission must strictly satisfy all additional requirements

provided in Rule 27.6(c), Ala. R. Crim. P., must be preserved to be

addressed on appeal. In this case, Mulkey was aware of the charged

probation violation and admitted his violation -- leaving the

rehabilitation facility before completion of the program. Thus, Mulkey's

waiver of a revocation hearing satisfied due process. The circuit court's

judgment is affirmed.

APPLICATION FOR REHEARING OVERRULED; OPINION OF

MAY 3, 2024, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

Windom, P.J., and Kellum, McCool, and Minor, JJ., concur.

31