Davis v. Com.

Decision Date19 March 1991
Docket NumberNo. 1763-88-4,1763-88-4
Citation12 Va.App. 81,402 S.E.2d 684
PartiesRalph Donald DAVIS, a/k/a, etc., v. COMMONWEALTH of Virginia. Record
CourtVirginia Court of Appeals

Ronald Wayne Fahy, for appellant.

Robert H. Anderson, III, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and BENTON and KEENAN, JJ.

KOONTZ, Chief Judge.

This is an appeal from a judgment of the Circuit Court of Prince William County entered on January 10, 1989, wherein the court found Ralph Donald Davis, appellant, in violation of the terms of his probation, revoked his probation, and reinstated his previously suspended sentences totalling ten years in the penitentiary. In addition to asserting his revocation hearing was not held within the time limits established under Code § 19.2-306, Davis asserts the circuit court erred by admitting hearsay testimony concerning his conduct while on probation and by improperly considering his intervening criminal convictions because the show cause orders issued did not refer to them as a basis for revocation. Finally, Davis asserts there is insufficient evidence to support the court's finding that he violated his probation terms, and that he was denied due process by not being advised of the terms of his probation and by the admission of hearsay evidence. We affirm the court's decision.

On March 29, 1985, Davis was sentenced on three counts of grand larceny by false pretense and two counts of writing a bad check. In addition to suspending ten years of Davis' sentence conditioned upon his keeping the peace and being of good behavior, the circuit court placed Davis on two years probation after his release from prison. The court also ordered Davis to comply with all of the conditions of probation set forth in Form P.B.2 of the Virginia Probation and Parole Board, and to successfully complete a drug rehabilitation program.

In a letter dated June 5, 1987, Lou Ann White, Davis' probation officer, notified the court that on April 16, 1986, Davis had been released from the penitentiary to parole and probation supervision with the directions to reside in West Virginia with his family. White further informed the court that Davis never reported to his assigned parole officer in West Virginia and that there was an outstanding Virginia Parole Board warrant for his arrest. Davis was never authorized to reside anywhere other than with his family in West Virginia and had never informed the authorities of his whereabouts. White also notified the court that on May 19, 1987, the Manassas Police Department informed her that Davis had been residing in Prince William County where there were outstanding warrants for his arrest for forgery, uttering and false pretenses charges. Additionally, Davis was wanted in Newport News for three counts of passing bad checks. Based on this information, White recommended that the court issue a bench warrant for Davis' arrest.

On June 20, 1987, the court issued show cause orders requiring Davis to show why his suspended sentences and supervised probation should not be revoked. The orders alleged a violation of the probation condition that Davis not "change his residence or travel outside of a designated area nor leave the State of Virginia without permission of his probation and parole officer." At the subsequent revocation hearing held on December 7, 1988, White was the Commonwealth's sole witness and testified to the information set forth in her letter to the court, which was also admitted into the record. She also testified Davis had been convicted of petit larceny by bad check and a misdemeanor fraudulent conversion based on offenses that occurred after his release from the penitentiary.

Davis testified at the revocation hearing that he was released on April 16 and was going to go to his parents' home in West Virginia according to his parole and probation "home plan," but decided not to do so after speaking with his step-mother by telephone. Instead, Davis testified that, without notifying his parole and probation officer, he stayed in Manassas for two months and then moved to Newport News, where he was convicted of two criminal offenses. Finally, Davis admitted he was aware he was in violation of his parole the entire time he was out of the penitentiary, but claimed he lacked similar awareness of his supervised probation violations since he had never signed or seen any probation rules.

After due consideration of all the evidence and taking judicial notice of its own orders regarding Davis' suspended sentences and probation, the court found Davis was in violation of the terms and conditions of his probation based on his absconding from probation and his new criminal convictions. The court then revoked Davis' five suspended sentences.

We first address Davis' contention that White's testimony was hearsay and improperly admitted at the probation revocation hearing. Both the United States Supreme Court and this Court have previously indicated probation revocation hearings are not a stage of criminal prosecution and therefore a probationer is not entitled to the same due process protections afforded a defendant in a criminal prosecution. See Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1759, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2599, 33 L.Ed.2d 484 (1972); Atkins v. Commonwealth, 2 Va.App. 329, 331-32, 343 S.E.2d 385, 387 (1986). Specifically, the United States Supreme Court has stated that in revocation hearings "formal procedures and rules of evidence are not employed," Scarpelli, 411 U.S. at 789, 93 S.Ct. at 1763, and that the process of revocation hearings "should be flexible enough to consider evidence ... that would not be admissible in an adversary criminal trial." Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604. Thus, hearsay evidence, which would normally be inadmissible in a criminal trial, may be admitted into evidence in a revocation hearing based on the court's discretion. See id.

In the present case, White gave testimony that was partially based on information provided to her by other governmental...

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