O'Neal v. Commonwealth, 011221 VACA, 1962-19-3

Docket Nº:1962-19-3
Opinion Judge:MARY GRACE O'BRIEN JUDGE
Party Name:JASON COREY O'NEAL v. COMMONWEALTH OF VIRGINIA
Attorney:Nathan M. Roberts, Assistant Public Defender, for appellant. Matthew P. Dullaghan, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Judge Panel:Present: Judges Beales, O'Brien and Malveaux Argued by videoconference
Case Date:January 12, 2021
Court:Court of Appeals of Virginia

JASON COREY O'NEAL

v.

COMMONWEALTH OF VIRGINIA

No. 1962-19-3

Court of Appeals of Virginia

January 12, 2021

FROM THE CIRCUIT COURT OF PULASKI COUNTY Bradley W. Finch, Judge

Nathan M. Roberts, Assistant Public Defender, for appellant.

Matthew P. Dullaghan, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Beales, O'Brien and Malveaux Argued by videoconference

MEMORANDUM OPINION [*]

MARY GRACE O'BRIEN JUDGE

Jason Corey O'Neal ("appellant") appeals an order imposing three probation requirements as specific conditions of his suspended sentence. He contends the court abused its discretion by "sentencing [him] to the same terms and conditions, including the prohibition on contact with females under the age of [eighteen], that he had previously been subjected to." For the following reasons, we affirm the court's ruling.

BACKGROUND

Appellant's involvement with the criminal justice system began in 2008, when he was convicted of two counts of forgery and one count of uttering, as well as misdemeanor petit larceny, obtaining money by false pretense, and identity fraud. The court imposed a sentence of three years of incarceration, all suspended, and two years of probation.

While on probation, appellant was banned from two middle schools after approaching two female students and calling them "pretty" and "sexy." He was ordered to complete a psychosexual evaluation, during which he admitted being sexually attracted to female minors. He also admitted writing a "love letter" to a nine-year-old girl. Appellant was subsequently diagnosed with pedophilia.

In 2011, appellant was convicted of two additional felonies, forgery and obtaining money by false pretense, and sentenced to ten years of incarceration, all suspended, and ten years of supervised probation. The court also found appellant in violation of his 2008 probation conditions, revoked his probation, imposed one year of the original sentence, and ordered probation to continue for ten years.

Appellant acquired five new felony convictions in 2012: one count of obtaining money by false pretense and four counts of issuing bad checks. The court sentenced appellant to seven years of incarceration, six years and eight months suspended, and two years of probation.

In August 2014, the court found appellant guilty of violating his probation on his seven most recent felony convictions. The court revoked the entire balance of the suspended sentence, re-suspended all but four years and eight months, and ordered that appellant's probation continue for ten years upon his release. The court also added specific conditions to the terms of probation consisting of the following: [Appellant] is ORDERED to have absolutely no contact with any females under the age of eighteen (18) years, no texting, no internet, [and] he is further ORDERED to complete the Sexual Offender Awareness Program with the Department of Corrections and must attend each and every treatment session.

In August 2018, appellant was released from prison and began probation. Due to his prior inappropriate actions with minors and his pedophilia diagnosis, in addition to his court-ordered specific conditions appellant was placed in a probation program designed for sex offenders.

Shortly thereafter, appellant admitted to his probation officer that he had been communicating with a minor by phone. The probation officer did not file a violation report.

Appellant moved to a new probation district where he continued to be supervised as a sex offender. His new probation officer communicated with the facilitator of the Sex Offender Awareness Program, who advised that appellant was completing the program but "should not be around any minors at all."

At his annual polygraph in March 2019, appellant admitted that he owned a cell phone with internet service and had spoken to an eleven-year-old girl several times. In August 2019, appellant acknowledged that he had various social media accounts and had been in contact with a fourteen-year-old girl by phone and in person. He allowed his probation officer to search his cell phone, which contained several pictures of minors.

Appellant was subsequently arrested for violating probation, and in September 2019 he was released on bond pending a revocation hearing. Appellant admitted to his probation officer that during his release on bond he had been using a cell phone with internet service and accessing Facebook. He also acknowledged that he obtained pictures of children by misrepresenting his identity on Facebook. The probation officer again searched appellant's cell phone and found several pictures of minors, including an image of a naked female who appeared to be between fourteen and sixteen years old. Based on public safety concerns, appellant was reincarcerated pending his probation revocation hearing.

The court conducted the revocation hearing on November 6, 2019. Appellant's probation officer testified that most of appellant's probation restrictions, including the court-ordered specific conditions, related to his pedophilia diagnosis, not his underlying convictions. At the end of the Commonwealth's evidence, appellant's counsel argued, [Appellant has] never been convicted as a . . . sex offender. He has never had any allegations of a sexual crime against him. In fact, the only things that he is on probation for are a number of larceny type and fraud type offenses. Your Honor, we believe that while probation and while the [c]ourt has a broad discretion in the terms that . . . they can impose for probation, that there has to be some sort of relationship to the sanctions imposed and the crimes that the probationer is . . . on probation for.

During his argument, appellant's counsel also asserted that appellant's probation conditions were "relate[d] to [appellant's] [F]irst [A]mendment rights" and an "undue burden on [appellant's] [F]irst [A]mendment right." Appellant's counsel did not support these assertions with any substantive argument.

The court concluded that probation conditions could address a probationer's pedophilia to prevent victimization of children, regardless of the probationer's underlying convictions. The court found appellant in violation of his probation, revoked his fourteen-year suspended sentence, re-suspended all but one year, and ordered that appellant's probation continue for ten years under the same conditions previously imposed.

ANALYSIS

Appellant contends that the court erred by imposing specific probation conditions which prohibit him from having contact with females under the age of eighteen, texting, and using the...

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