Billips v. Commonwealth

• Decision Date: 06 June 2006
• Docket Number: Record No. 0172-05-3.
• Citation: 630 S.E.2d 340,48 Va. App. 278
• Parties: Matthew Edward BILLIPS v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

630 S.E.2d 340

48 Va. App. 278

Matthew Edward BILLIPS v. COMMONWEALTH of Virginia.

Record No. 0172-05-3.

Court of Appeals of Virginia, Salem.

June 6, 2006.

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Terrence Shea Cook (T. Shea Cook, P.C., on brief), Abingdon, for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on brief), for appellee.

Present: BENTON, CLEMENTS and KELSEY, JJ.

JEAN HARRISON CLEMENTS, Judge.

Matthew Edward Billips appeals the sentences imposed by the trial judge following Billips's conviction in a jury trial of criminal solicitation, in violation of Code § 18.2-29, and two counts of forcible sodomy, in violation of Code § 18.2-67.1. Billips contends the trial judge erred at sentencing in (1) refusing to recuse himself after inappropriately receiving a sentencing verdict from the jury, (2) admitting the sentencing guidelines portion of the presentence report into evidence even though Billips was a juvenile when the offenses were committed, and (3) admitting the risk assessment portion of the presentence report into evidence without first determining that the scientific evidence contained therein concerning a plethysmograph examination was reliable. For the reasons that follow, we affirm Billips's sentences.

I. BACKGROUND

Viewed in the light most favorable to the Commonwealth, the prevailing party below, see Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975), the evidence presented at trial established that, on May 10, 2003, Billips was living with his aunt and uncle, Wanda and Wayne Wood, in Tazewell County. The Woods' step-grandsons, C.H. and S.H., were also spending the night with the Woods on that date. That evening, while the Woods were downstairs watching television, Billips, whose date of birth was November 15, 1985, went upstairs to his bedroom where C.H. and S.H. were playing video games. Shortly after entering the room, Billips asked S.H., who was ten years old, to perform oral sex on him. After S.H. refused, Billips persuaded C.H., who was nine years old, to perform oral sex on him. Billips then performed oral sex on C.H.

On June 3, 2003, Billips was charged with feloniously sodomizing C.H., a child less than thirteen years of age, in violation of Code § 18.2-67.1. On June 26, 2003, the juvenile and domestic relations district court found probable cause and certified Billips's case to the trial court. On August 12, 2003, a grand jury indicted Billips on two counts of forcible sodomy, in violation of Code § 18.2-67.1, and one count of criminal solicitation, in violation of Code § 18.2-29. A trial by jury was held on April 20, 2004. At the conclusion of the evidence and argument by counsel, the jury found Billips guilty as charged.

The trial then proceeded to the sentencing phase. Without objection by either party, the jury continued to sit in the trial. The Commonwealth introduced evidence of Billips's prior convictions as a juvenile for grand larceny of a motor vehicle, felony escape, abduction, carjacking, and malicious wounding. After hearing the defense's evidence in mitigation and the argument of counsel, the jury fixed Billips's sentence at twenty-five years for each of the sodomy convictions and five years for the solicitation conviction, for a total sentence of fifty-five years.

After the jury was excused, the following colloquy took place:

[DEFENSE COUNSEL]: Your Honor, at this time we have a motion to set aside the verdict rendered by the jury as well as in the alternative a motion to stay the imposition of the sentence until after a presentence report can be considered by the Court along with a set of sentencing guidelines.

THE COURT: All right. I'll tell you what the Court would do. The Court will order that a presentence report be prepared prior to sentencing. And will order also as part of that presentence report that a psychosexual evaluation be performed of Mr. Billips. And the Court will also give you, if you desire, ten days to file any written post-trial motions that you desire to file. And I will give the Commonwealth, if they desire, ten days to respond in writing to those motions. And we can set any motions that you want to file for hearing at the same time we set a sentencing [hearing]. Is that satisfactory?

[DEFENSE COUNSEL]: Yes, Your Honor.

The trial judge then ordered that a presentence report, including a sentencing guidelines report and a psychosexual evaluation report, be "prepared for the court's consideration prior to sentencing," pursuant to Code §§ 19.2-299, 19.2-298.01, and 19.2-300. Jennifer Helbert, the probation officer who prepared Billips's presentence report, referred Billips to Counseling and Consultation Services, Inc., a local non-profit corporation specializing in the "assessment and treatment of sexual offenders," for evaluation. Cheryl Clayton, the corporation's Director of Virginia Services, and Dr. Ronald J. Ricci, Ph.D., examined Billips and performed a "Risk Assessment designed to address present risk to reoffend and to generate treatment recommendations." Following preparation of the presentence report, including the sentencing guidelines report and the risk assessment report, the trial judge held a sentencing hearing on October 4, 2004.¹

At the outset of the sentencing hearing, the trial judge heard argument on Billips's motion to have the trial judge recuse himself and allow another judge to do the sentencing. After pointing out that, pursuant to Code § 16.1-272, the jury should not have been allowed to recommend a sentence in this case, Billips argued that, in order to avoid the perception that the trial judge may have been influenced by the jury's "harsh" and "severe" sentencing verdict, the trial judge should recuse himself and allow another judge to determine Billips's sentence or preside over a new trial, if appropriate. The trial judge denied the motion, stating that he was able to "set aside the [jury's] recommendation" in determining an appropriate sentence and that the jury's recommendation would have no "greater effect" on him than on "another sentencing judge who would be aware [from the record] of . . . what the jury had done."

Thereafter, Helbert recounted Billips's juvenile criminal record and testified regarding a psychological assessment of Billips conducted in 1997. Helbert recommended that Billips be incarcerated.

When the Commonwealth sought to introduce the presentence report into evidence, Billips initially objected to the admissibility of the sentencing guidelines report included in the presentence report. Billips argued that the sentencing guidelines, which recommended an incarceration range of twenty years and five months to fifty-nine years and nine months, were geared to adults and should not apply in this case because he was a juvenile at the time the offenses were committed. Citing the defense's failure to provide any authority supporting its position, the trial judge denied Billips's objection.

Billips then objected to the admissibility of the risk assessment report included in the presentence report, arguing that the risk assessment report was impermissibly based on the results of a polygraph examination and a penile plethysmograph examination. A plethysmograph, Billips argued, is as unreliable as a polygraph in that they both measure a person's physical response to certain stimuli and, thus, should be similarly inadmissible. Sustaining Billips's objection with regard to the risk assessment report's reliance on a polygraph examination, the trial judge directed that a new risk assessment report be prepared "without any consideration of any type of polygraph examination." However, noting that "[t]here is some difference" between polygraphs and plethysmographs and that, unlike polygraphs, there is no "specific case law" in Virginia dealing with plethysmographs, the trial judge denied Billips's objection with regard to the risk assessment report's reliance on a plethysmograph examination. The trial judge continued the sentencing hearing to allow for revision of the risk assessment report.

Following completion of the revised risk assessment report, the sentencing hearing recommenced on October 26, 2004. Clayton testified regarding the various factors she and Dr. Ricci used to assess the risk that Billips would re-engage in similar deviant sexual behavior. Discussing those factors, Clayton testified that Billips admitted during an interview that he had sexual contact when he was twelve years old with one of the victims but denied he committed the crimes for which he was convicted. Likewise, Clayton testified, Billips exhibited no signs of empathy toward the victims. Clayton explained that Billips's denial of culpability and his lack of empathy indicated he did not believe he had "a problem with sexual offending," which suggested "a poor treatment outcome."

Clayton further testified that Billips and his parents claimed the charges against him had been fabricated because he would not obtain drugs for members of the victims' family. Such a belief on the part of the parents, Clayton opined, indicated they did not believe Billips had a sexual offense problem and suggested they would be unlikely to provide adequate supervision within the community.

Clayton also testified that, using a "comprehensive risk to reoffen[d] scale" to assess Billips's likelihood of reoffending, she and Dr. Ricci determined that Billips posed "a moderate reoffense risk." Clayton explained that Billips's score was based on a "variety of different factors," including the nature of the offenses he committed; the age and sex of the victims; the number of victims; the length of time he knew the victims; the means by which he gained access to the victims; the length of time he had been engaging in deviant sexual behavior; his social and familial relationships; his employment, criminal, and mental health histories; his...