Youthful Offender Applications - What You Don't Know Might Hurt You
Alabama's Youthful Offender Act is the source of a significant amount of confusion in the practice of criminal law. Because the Act itself does not provide many details on how it should be implemented, the appellate courts have fashioned the bulk of the rules governing youthful offender (YO) cases on an as-needed basis. This article, original published in The Guardian (http://acdla.org/news/2010GuardianAprilMayJune.pdf) (the newsletter of the Alabama Criminal Defense Lawyers Association) is an attempt to clear up some of the confusion by collecting some of the diverse rules which have evolved over the years.
There are very few limitations on the judge. A trial judge has “almost absolute discretion" in granting or denying youthful offender status. Morgan v. State, 363 So.2d 1013, 1015 (Ala. Crim. App. 1978). The Youthful Offender Act “requires that the court conduct a factual investigation into the defendant's background." Ware v. State, 432 So.2d 555 (Ala. Crim. App. 1983). However, there is no set method for how the judge must consider a defendant's application. Edwards v. State, 317 So. 2d 512 (Ala. 1975). The judge does not have to state on the record why he or she is denying youthful offender status. Garrett v. State, 440 So. 2d 1151 (Ala. Crim. App. 1983). In fact, the judge does not even have to grant a formal hearing. Morgan v. State, 363 So. 2d 1013 (Ala. Crim. App. 1978). “Where it does not affirmatively appear that the trial court's decision was arbitrary or that it was made without any examination or investigation, there is no basis for overturning the trial court's decision." Wilson v. State, 563 So. 2d 11,12 (Ala. Crim. App. 1989).
YO cannot be denied based solely on the charge itself – for now. As referenced in the Wilson case, the judge's decision cannot appear to be arbitrary and it cannot appear that the decision was made without any examination or investigation. Otherwise, the only meaningful limitation on the judge's discretion in deciding whether to grant youthful offender status is that the judge cannot deny it “based solely on the charge in and of itself." Ex parte Ferrell, 591 So. 2d 444, 449 (Ala. 1991); see also Watkins v. State, 357 So. 2d 156 (Ala. Crim. App. 1977). However, an amendment to the law was proposed in 2010 that, in enacted, would prohibit a judge from granting youthful offender treatment on any case involving serious injury or death.
The confidential investigation may not be as confidential as you think. When a defendant applies for youthful offender treatment, the Department of Pardons and Paroles conducts an investigation of the defendant and files a report with the judge. This investigation usually includes interviewing the youthful offender applicant. Alabama Code Section 15-19-5 provides that no statement, admission, or confession made by a defendant during this examination and investigation will be admissible against him at trial except in a sentencing hearing. However, this prohibition against use in a trial is subject to the “harmless error" rule according to the Alabama Court of Criminal Appeals. In Coleman v. State, 452 So. 2d 1355 (Ala. Crim. App. 1984), a defendant who was denied youthful offender status who later testified in her jury trial was cross-examined about statements she made to the probation officer during the youthful offender investigation. The Court of Criminal Appeals ruled the improper questioning was harmless error because the defendant denied making the statements, and that the questions themselves were not so prejudicial as to be reversible error just from being asked (though she was convicted and sentenced to 25 years in prison).
A youthful offender adjudication may not be as confidential as you think. Youthful offender convictions are not open to the public and generally cannot be used against a witness to impeach his credibility. Thomas v. State, 445 So. 2d 992 (Ala. Crim. App. 1984) and Rule 609 of the Alabama Rules of Evidence. However, the defendant or a witness can be impeached with a youthful offender adjudication in a jury trial if he or she gets on the witness stand and claims to have never been in any trouble, or through offering other testimony that opens the door to evidence about the youthful offender adjudication. Saunders v. State, 10 So. 3d 53 (Ala. Crim. App. 2007). For some potentially helpful arguments, see the discussion about "opening the door" in Ex parte Ray, ___ So. 3d ___ (Ala. 2009), which held that the completeness doctrine did not justify admitting evidence of a defendant's prior juvenile conviction under the facts of that specific case.
A defendant cannot request youthful offender treatment without waiving the right to jury trial. The question of the constitutionality of requiring a defendant to waive the right to a jury trial in exchange for youthful offender treatment arises from time to time. The view of the courts is that participation in the youthful offender adjudication process is voluntary, and a defendant is not compelled to seek youthful offender status if he or she does not want it. The waiver of the right to a trial by jury as a condition of obtaining the benefits of youthful offender treatment is not unconstitutional and the youthful offender procedures do not violate due process. Raines v. State, 317 So. 2d 559 (Ala. 1975).
A judge cannot give pretrial diversion on a YO plea without the consent of the State. In the case of Ex parte State (State of Alabama vs. D.L.A.), 975 So. 2d 1014 (Ala. Crim. App. 2007), the trial judge granted youthful offender status to a defendant and withheld adjudication for a year. The judge stated that if the defendant stayed out of trouble for a year, he would dismiss the charge. After the year passed without any problems, the judge dismissed the charge. The State objected and filed a mandamus petition against the judge. The Court of Criminal Appeals held that while the judge's attempt to help the defendant was an “admiral goal," the judge did not have authority to create his own pretrial diversion program and was ordered to reinstate the youthful offender adjudication.
A judge cannot impose consecutive probation periods or consecutive sentences if the total of either exceeds three years. If a defendant is granted youthful offender status on more than one pending charge, the judge cannot run the sentences consecutively if the result would be a sentence exceeding the three year maximum for a youthful offender adjudication for an underlying felony charge. As the Court of Criminal Appeals stated in Hastings v. State, 549 So. 2d 115 (Ala. Crim. App. 1988), “[i]f the trial court was of the belief that appellant required incarceration for a period longer than three years, youthful offender status should not have been granted." Consecutive sentences totaling more than three years are not permitted under the Youthful Offender Act. DY v. State, 841 So. 2d 304 (Ala. Crim. App. 2002)
Failure to object to the denial of youthful offender status waives the issue on appeal. It is not enough to request youthful offender treatment for a defendant, nor is it sufficient to present a brilliant legal and factual argument to the trial court supporting the request. If the judge denies the application, the attorney must make an objection to the denial of youthful offender status or the issue is not preserved for appeal. Ford v. State, 645 So. 2d 317 (Ala. Crim. App. 1994). When making the oral objection, the attorney should make sure that the court reporter is still taking notes to ensure that the objection appears in the court record. It is also wise to follow up the oral objection with a written objection as well, to remove any possible doubt as to whether an objection was raised to the denial of youthful offender treatment. Finally, if the defendant decides to enter a guilty plea, the reservation of the right to appeal the denial of youthful offender status should be put on the record during the plea proceeding before reaching the point at which the defendant actually pleads guilty. Otherwise, the right to appeal the issue may still be lost. Ex parte LaPointe, 926 So. 2d 1055 (Ala. 2005)
Conclusion. Adult prosecutions and youthful offender adjudications do not necessarily follow the same rules and procedures. Always review the law as it applies to youthful offenders before assuming that a YO case will work the same as a case involving an adult defendant.