SECOND DIVISION
MILLER, P. J.,
HODGES and PIPKIN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
August 30, 2021
In the Court of Appeals of Georgia
A21A0809. TORREGANO v. THE STATE.
PIPKIN, Judge.
We granted appellant Brandon Torregano’s application for discretionary appeal
to review an order of the Muscogee County Superior Court revoking his probation.
On appeal, Torregano1 argues, among other things, that he was improperly denied his
right to counsel at the probation revocation proceedings and that the trial court erred
by revoking the balance of his probation in contravention of OCGA § 42-8-34.1 (d).
As more fully set forth below, we now vacate the trial court’s order and remand for
further proceedings consistent with this opinion.
1
Several spellings of appellant’s name appear in the record; we have used the
spelling in the notice of appeal for the purposes of docketing and this opinion.
The record shows that in October 2016, Torregano pleaded guilty to a charge
of first degree forgery under Muscogee County Indictment No. SU16CR366 and was
sentenced to ten years, two to serve in confinement and the remainder on probation.
In February 2020, Torregano’s community supervision officer filed petitions to
revoke Torregano’s probation in Indictment No. SU16CR366 as well as two other
cases involving separate charges and sentences based on, among other allegations,
that he struck a corrections officer at the jail.2 A hearing was held on June 23, 2020,
during which Torregano appeared pro se. Following the hearing, the trial court
revoked Torregano’s probation in all three cases; specifically in Indictment No.
SU16CR366, the trial court revoked Torregano’s probation “in full” and sentenced
him to six years, four months, and five days of confinement.
1. Torregano first challenges the trial court’s failure to appoint counsel to
represent him during the probation revocation proceedings.
As our appellate courts have explained, there is “no Sixth Amendment right to
counsel at a revocation proceeding[;]” instead, a probationer has only “a more limited
due process right to counsel under the Fourteenth Amendment.” (Citation and
2
We glean these facts from the probation hearing transcript since Torregano
has not appealed the revocation of his probation in the other cases and the petitions
to revoke his probation in those cases have not been included in the record on appeal.
2
punctuation omitted.) Vaughn v. Rutledge, 265 Ga. 773, 774 (1) (462 SE2d 132)
(1995). See also Newbern v. State, 356 Ga. App. 696, 697(1) (849 SE2d 39) (2020).
Thus, “[i]t is only in a revocation proceeding in which fundamental fairness – the
touchstone of due process – mandates the appointment of counsel that the State will
be required to provide the probationer with legal representation.” (Citation and
punctuation omitted.) Vaughn, 265 Ga. at 774 (2). Necessarily then – since the
concept of fundamental fairness cannot be precisely elucidated and the determination
must be made on a case by case basis – “there is no precise and detailed set of
guidelines to be followed.” (Citation and punctuation omitted.) Id. at 775 (3).
However, in Gagnon v. Scarpelli, 411 U. S. 788, 790-791 III (93 SCt 1756, 36 LE2d
656) (1973) the United States Supreme Court set forth certain criteria that should be
considered in deciding this issue. Banks v. State, 275 Ga. App. 326, 328 (620 SE2d
581) (2005).
Presumptively, it may be said that counsel should be provided in cases
where, after being informed of his right to request counsel, the
probationer . . . 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
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inappropriate, and that the reasons are complex or otherwise difficult to
develop or present. In passing on a request for 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.
Gagnon, 411 U. S. at 790-791 (III). Importantly, “[i]n 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.” Elkins v. State, 147 Ga. App. 837, 838 (250 SE2d
535) (1978). See also Kitchens v. State, 234 Ga. App. 785, 785-786 (1) (508 SE2d
176) (1998).
As to this issue, the transcript of the revocation hearing shows that the trial
court began by noting the court’s understanding that Torregano had elected to
represent himself and asked Torregano to confirm if this was correct. Torregano
responded in the affirmative, and then the trial court inquired if he wanted a public
defender, followed immediately by a question concerning whether Torregano was
previously represented by a public defender. Torregano responded with the name of
the public defender who had previously represented him, and the State’s attorney
interjected that Torregano had fired her. After reviewing Torregano’s responses on
a waiver of counsel form, the trial court then questioned Torregano regarding his
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decision and his ability to represent himself. Toward the end of the questioning, the
trial court asked Torregano “why do you think you could do a better job than a lawyer
in representing yourself in this case?” Torregano responded, “I never said I could do
a better job, just trying to get another public [de]fender . . . . I was trying to get
another public defender. Hoping for one in that matter.”
The trial court then questioned Torregano concerning matters unrelated to
Torregano’s statement regarding his desire to have counsel. After discussion of these
matters, the trial court asked Torregano whether he “specifically waive[d] his right
to counsel,” and Torregano responded, “It’d be nice to have one but I don’t have
one.” The trial court took his response as “a clear answer that you want a lawyer
appointed to represent you[,]” and Torregano again stated “[a] public defender would
be nice.” The following exchange then occurred:
COURT: Well, you fired one public defender.
DEFENDANT: Uh-huh. (indicating in the affirmative)
COURT: And typically that’s the end of it. I’m sorry, sir. Tell me again.
DEFENDANT: No possibility I’d get another one.
COURT: The question of what’s possible really isn’t an applicable standard of where
we are right now. All right. So, you want a lawyer. Can you afford a lawyer?
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DEFENDANT: No, sir.
COURT: Do you have any income that can pay for a lawyer?
DEFENDANT: I started a job the same day you came and got me from my house, so,
no.
COURT: Okay. Do you have anybody that would help you?
DEFENDANT: No.
COURT: Is – the public defenders, are they still on the meeting?3 Is Ms. Novak still
here? Let me see –
NOVAK: Yes, Your Honor. . . . I heard everything. And he was advised, just so the
Court is aware, at the time when he fired me, that another lawyer would not be
appointed. That was when – that was before I even did the withdrawal motion.
COURT: All right. Mr. Torregano, did you hear what Ms. Novak – she’s the public
defender – what she just said.
DEFENDANT: Yes, sir.
COURT: What are the possibilities that you could hire a lawyer in the next ten days?
DEFENDANT: No.
3
The hearing was conducted via zoom video conference.
6
The trial court then called a break in the proceedings to consider whether
counsel should be appointed to represent Torregano. When the hearing resumed, the
court informed Torregano, “You also were informed that there would be no one else
available to be appointed from the public defenders’ [office], and you tell me that you
can’t hire a lawyer, yet we’ve gone through this fairly lengthy prologue dealing with
the representation by yourself. So, we’re going to go forward with the hearing.” The
trial court then instructed the prosecuting attorney to proceed with the hearing.
Although Torregano’s limited right to request appointed counsel during the
revocation hearing was by no means made clear to him, what is clear is that
Torregano repeatedly stated that he wanted to have counsel appointed to represent
him, and the trial court understood his statements as a clear request for the
appointment of counsel. The trial court, however, never made an express
determination concerning whether Torregano was entitled to have counsel appointed,
defaulting instead to the determination that had been made by Torregano’s previous
appointed counsel without making any inquiry into the circumstances surrounding
Torregano’s termination of his previous counsel. In short, the trial court never stated
any reasons on the record for not appointing counsel and did not appear to give any
consideration to whether, outside of previous counsel’s statement that he was not
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entitled to have another attorney appointed to represent him, Torregano was entitled
to appointed counsel considering the relevant criteria. “In failing to do so, the trial
court erred.” Newbern, 356 Ga. App. at 699-700 (1).
“In Gagnon, the Supreme Court of the United States made clear that ‘(t)he
general guidelines outlined (by the Supreme Court] should be applied in the first
instance by those charged with conducting the revocation hearing,’ i.e., by the trial
court.”Newbern, 356 Ga. App. at 700 (2). Thus, in most instances where the trial
court fails to apply those guidelines, the appropriate response is to vacate the
revocation order and remand for the trial court to make that determination. Newbern,
356 Ga. App. at 700 (2) & n.19 (noting cases in which both this Court and our
Supreme Court have vacated and remanded to the trial court to make the initial
determination required by Gagnon). See also Kitchens, 234 Ga. App. at 787 (1)
(remanding because “the trial court must make the initial determination as to whether
a probationer is entitled to counsel based on the guidelines set forth in Gagnon.); cf.
Banks, 275 Ga. App. at 329 (remand for determination of entitlement to counsel
unnecessary where probationer admitted violation, she did not claim any justifications
or mitigating factors in violating the probation, and the record showed she “capably
spoke for herself.”). Based on this record before us, we believe a remand is also
8
necessary in this case. Torregano did not admit to the violation underlying the
probation – that he struck a corrections officer at the jail – and he correctly
understood that the matter involved “her word against his word.” However, as the
State pointed out at the hearing, Torregano did not actually testify at the hearing and
the correction officer’s testimony was unopposed, suggesting that Torregano did not
understand what he needed to do to present evidence.4 The transcript also reflects that
Torregano did not understand how to cross-examine the witness and that he was
under the mistaken belief that, at the conclusion of her testimony, he could still plead
guilty to the charge “and take the five do three in month terms instead of years and
just to get the process over with” based on what he had been previously told by his
appointed counsel. Further, the proceedings were somewhat more complicated here
because they involved the alleged violation of probation imposed in three separate
cases, as indicated by confusion in the record concerning whether the evidence that
Torregano violated a condition of his probation by failing to submit to substance
abuse evaluation and treatment applied to the revocation of probation entered on
Indictment No. SU16CR366 or whether it applied only to the revocation of the
4
In an oral ruling at the conclusion of the hearing, the trial court also noted that
the evidence that Torregano struck the corrections officer was uncontested.
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probated sentence in one of the other cases.5 Lastly, while the State advised
Torregano at the hearing that his probation could be revoked for five years, the trial
court erroneously revoked over six years of probation in Indictment No. SU16CR366,
a fact that Torregano did not call to the trial court’s attention. Given these and other
circumstances of this case,6 we vacate the order of revocation in Indictment No.
SU16CR366 and remand to the trial court to “either state its reasons for not
appointing counsel when [Torregano] indicated that he wished to have an attorney to
represent him at the hearing or, alternatively, proceed with a new revocation hearing,
in which [Torregano] is afforded the opportunity to be represented by counsel.”
Newbern, 356 Ga. App. at 702.
5
Although the trial court did not mention this alleged violation of a condition
of probation in its oral ruling following the hearing, the State points to this evidence
in support of its contention that the State met its burden of proof to show Torregano
violated his probation. Further, as Torregano argues in his brief on appeal, there is
some confusion concerning whether the condition concerning evaluation and
treatment for substance abuse should be treated as a general or special condition of
probation, which is important considering that different consequences attach to the
violation of the condition depending on this classification.
6
Torregano also asserts in his brief on appeal that he was being treated for
bipolar disorder, a fact, he asserts, that the trial court should have been made aware
of even if Torregano himself did not disclose this when given an opportunity to do
so at the hearing.
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2. Because the trial court may, if it determines that Torregano is not entitled to
a new revocation hearing with representation, re-enter the revocation order, we must
address Torregano’s contention that the trial court erred by revoking the balance of
his probation entered on Indictment No. SU16CR366. The State concedes that this
was error, and that under OCGA § 42-8-34.1 (d), the maximum amount of probation
that could be revoked was five years. Accordingly, even if the trial court determines
that Torregano is not entitled to a new hearing, he must be resentenced.
3. In light of our disposition in this case, it is unnecessary for us to address
Torregano’s remaining enumerations of error.
Judgment vacated and case remanded with direction. Miller, P. J., and
Hodges, J., concur.
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