IN THE MISSISSIPPI COURT OF APPEALS 2014-CA COA STATE OF MISSISSIPPI MOTION FOR REHEARING

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1 E-Filed Document Jul :16: CA COA Pages: 5 IN THE MISSISSIPPI COURT OF APPEALS 2014-CA COA DAVID SHANKLIN Appellant v. STATE OF MISSISSIPPI Appellee MOTION FOR REHEARING Appellant David Shanklin files this Motion for Rehearing from this Court s decision of June 28, 2016, affirming the trial court s denial of his motion for post-conviction relief. Shanklin v. State, 2016 Miss. App. LEXIS 427 (Miss. Ct. App. June 28, 2016). In support thereof, he states as follows: In September of 2010, Shanklin pleaded guilty to a charge of possession of cocaine with intent to sell. The trial court sentenced him to twenty years with all twenty suspended, five years of supervised probation and fifteen years of unsupervised probation. Shanklin was also ordered to pay a $ fine, court costs, $ to the Crime Victims Compensation Fund, and $ in laboratory fees. T. 8; CP. 5. The court told Shanklin that he would give him a couple of months prior to his being required to make the first payment. T. 9. On March 5, 2011, Shanklin was extradited to Georgia after having waived extradition in February. CP. 1. According to Shanklin, his probation officer at the time, Gloria Rodgers, was aware that he had been extradited. CP. 1; RE. 13. Shanklin was released on bond but had a court date of December 5, 2011, and ended up serving some time in Georgia. CP. 10. In October 2012, the Department of Corrections reported that Shanklin had failed to report and pay fees. CP. 18. According to the Violation Report Form, Shanklin had failed to 1

2 report January through October CP. 18. On November 2012, Shanklin was picked up by the United States Marshall s office for failure to report and failure to pay fees. CP. 10. On November 26, 2012, Shanklin signed a waiver of his right to a preliminary probation hearing and to a lawyer on the revocation. CP. 30; RE. 10. On December 3, 2012, Shanklin s probation was revoked and Shanklin was ordered to serve the entire twenty-year sentence. Even then, though, the clerk sent Shanklin a letter on March 13, 2013, stating that if he did not pay $1,400 in delinquent fines, he would be arrested. CP. 32; RE. 12. On April 8, 2013, because Shanklin understood that if he paid the full amount of the costs and fines (not just those presently owed), he would be given house arrest, Shanklin s family paid the full $6, CP Meanwhile, Shanklin had requested reconsideration of the Court s sentence which the court denied on April 8, Shanklin filed a motion for post-conviction relief in February CP. 2. In it he alleged that he was lead to believe by the district attorney s office that if he paid all of his fees and court costs, he would be given house arrest. This ended up not being the case. The trial court denied relief on May 7, This Court affirmed finding that the violation of Shanklin s probation was valid because he failed to report and failed to obtain permits to travel to Georgia and Louisiana. Shanklin argued that his failure to report and obtain travel permits was due to his being extradited to Georgia, a fact of which his probation officer was fully aware. Having been extradited, he was unable to obtain a travel permit or report as required. The record, as it exists now, is unclear as to how long Shanklin was required to be in Georgia and to what extent he would have been able to report and obtain travel permits. In other words, the record does not show that Shanklin s failures were willful. 2

3 There is no shortage of law that a failure to pay a fine is not cause to revoke probation where it is shown that the failure was based on an inability to pay i.e. that is it was not willful. Bearden v. Georgia, 461 U.S. 660, 76 L. Ed. 2d 221, 103 S. Ct (1983); Mayfield v. State, 822 So. 2d 332 (Miss. Ct. App. 2002). In cases where the proof has been held to be sufficient to warrant incarceration for failure to pay, the trial court must inquire into the defendant s ability to pay and revoke probation only where the court finds that there has been a willful and knowing violation of a condition or conditions imposed upon one previously convicted of having violated the criminal law. Hooks v. Jaquith, 318 So. 2d 860, 861 (Miss. 1975). See also Berdin v. State, 648 So.2d 73, 79 (Miss. 1994). In this case, there is evidence that Shanklin s failure to report and obtain travel permits for the two-year period between his sentencing and MDOC s report that Shanklin had violated parole was due, at least in part, to Shanklin s having been extradited to Georgia. The record, though, is not clear as to whether the extradition might account for all of the time between the sentencing in September of 2010 and the revocation two years later. Given this evidence, the trial court should have appointed counsel for Shanklin to give Shanklin the ability to prove that his inability to comply with the terms of his probation was willful or not. Shanklin raised this issue - the failure to appoint counsel as an additional error. This Court had this to say in affirming. Regarding his right to counsel at the hearing, the waiver form provides that the defendant has "the right to retain a lawyer to represent [him] in this Administrative Hearing [;] however, the Department of Corrections will not appoint a lawyer for [him]." It is well established that an indigent's right to have counsel provided for him at a probation-revocation hearing is not automatic. Baldwin v. State, 891 So. 2d 274, 277 ( 12) (Miss. Ct. App. 2004) (citing Riely v. State, 562 So. 2d 1206, 1209 (Miss. 1990)). The right to appointed counsel is determined on a case-by-case basis; however, it is clear a probationer will have the right to counsel when the 3

4 issues at the hearing are complex or otherwise difficult to develop. Riely, 562 So. 2d at 1209 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973)). Shanklin, 2016 Miss.App. LEXIS 427, *8-9. Shanklin was incarcerated at the time of his hearing and, as the record reflects, 1 was having a hard time obtaining the documentation that would have shown his inability to meet the requirements of his probation. This is just the sort of case wherein counsel should be appointed. The United States Supreme Court has held that counsel should be appointed for revocation proceedings where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present. In passing on a request for the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself. In every case in which a request for counsel at a preliminary or final hearing is refused, the grounds for refusal should be stated succinctly in the record. Gagnon v. Scarpelli, 411 U.S. 778, , 93 S. Ct. 1756, 1764, 36 L. Ed. 2d 656, (1973). 1 As the Court of Appeals notes, In a letter filed with the trial court in October 2013, Shanklin requested a copy of an extradition waiver he signed for permission to go out of State. Shanklin later explained that he was extradited to Georgia in March 2011, and his probation officer at the time was aware of his extradition. He was released on bond with a court date on December 5, 2011, and ended up serving some time in Georgia. Shanklin, 2016 Miss.App. LEXIS 427, *2 n. 1. 4

5 If, as the Court states 2, the burden of proof was on Shanklin to prove lack of willfulness, and he required the assistance of an attorney to do so, then it was error for the trial court to fail to appoint an attorney to represent Shanklin. At the very least, then, this Court should remand the case to the trial court to allow Shanklin an opportunity to prove that his violations were not willful this time with the assistance of counsel. RESPECTFULLY SUBMITTED, DAVID SHANKLIN BY: /s/ Edward Blackmon, Jr. EDWARD BLACKMON, JR., MSB #3354 BLACKMON & BLACKMON, PLLC 907 West Peace Street Post Office Drawer 105 Canton, MS Telephone: (601) Facsimile: (601) CERTIFICATE OF SERVICE I, Edward Blackmon, Jr., do hereby certify that I have this day electronically filed a true and correct copy of the above and foregoing with the Clerk of the Court which automatically sent notification to: This, the 12 th day of July, LaDonna Holland, Esq. Mississippi Attorney General s. Office P. O. Box 220 Jacksn, M BY: /s/ Edward Blackmon, Jr. Attorney for David Shanklin 2 Shanklin, 2016 Miss. App. LEXIS 427, *7. 5