Downey v. Commonwealth of Va..

• Decision Date: 25 October 2011
• Docket Number: Record No. 1936–10–2.
• Citation: 716 S.E.2d 472,59 Va. App. 13
• Parties: Robin L. DOWNEYv.COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

59 Va.App. 13

716 S.E.2d 472

Robin L. DOWNEY

v.COMMONWEALTH of Virginia.

Record No. 1936–10–2.

Court of Appeals of Virginia.

Oct. 25, 2011.

Mark E. Englisby(Englisby, Vaughn & Slone, on brief), for appellant.John W. Blanton, Assistant Attorney General(Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.Present: HUMPHREYS and BEALES, JJ. and CLEMENTS, Senior Judge.HUMPHREYS, Judge.

Robin L. Downey(“Downey”) appeals the revocation and re-suspension of her previously suspended sentences on six felony convictions in the Circuit Court of the County of Chesterfield(“circuit court”).Downey alleges the circuit court erred in finding the evidence sufficient to prove Downey violated the conditions of her probation “when the only evidence of any violation was her own uncorroborated statement.”For the reasons that follow, we affirm the circuit court's judgment in this matter.

I.Background

On December 15, 2008, the circuit court sentenced Downey to a total of thirteen years in the penitentiary for her convictions on one count of possessing cocaine and five counts of passing a worthless check.The circuit court suspended all thirteen years and placed Downey on supervised probation, indefinitely.On March 17, 2009, the circuit court granted a show cause request and issued a capias ordering Downey's arrest for violating her probation.By order dated May 14, 2009, the circuit court revoked and re-suspended Downey's thirteen-year sentence and again placed her on probation for an indeterminate period.

On June 2, 2009, Downey's probation officer, James G. Brown(“Brown”), sent a letter to the circuit court requesting the issuance of a show cause against Downey for making “a poor adjustment to supervision.”Brown specifically explained that Downey “is a severe alcoholic and to date, cannot refrain from using alcohol on her own.”Brown's letter stated that whereas Downey was told to refrain from using alcohol during her initial interview with Brown, she“admitted to consuming alcohol on numerous occasions during a [subsequent] interview with Brown on June 1, 2009.”Brown requested that Downey be removed from active probation and placed on unsupervised probation with instructions to appear back before the court in one year, because Downey planned to attend an inpatient substance abuse center in Kentucky.

In response to Brown's letter, the circuit court held a show cause hearing on June 29, 2009.¹Brown conceded at the hearing that Downey did not test positive “for any alcohol screens” on June 1, 2009, and that he did not detect any odor of alcohol about Downey's person at that time.When Brown met with Downey on June 1, 2009, she“was clean and sober.”Brown, thus, admitted that the only basis for his request for a show cause was Downey's admission that she had consumed alcohol.The Commonwealth presented no further evidence in support of its contention that Downey had violated her probation.

Upon the conclusion of the evidence, Downey argued “this, of course, is a new criminal charge.”Downey explained that “whenever a criminal defendant admits to something that's the basis of the crime itself, the Commonwealth needs to, on top of that, have some slight corroboration that she has committed the offense and there is no evidence of that.”Downey asked the judge to find her “not guilty” of the show cause and to follow along with Brown's recommendation that she be placed on unsupervised probation for one year.

The circuit court found that Downey violated the terms of her probation and suspended the imposition of sentencing for twelve months on the condition that Downey is “to go and successfully complete” her inpatient program.

On September 2, 2010, Downey appeared before the circuit court for sentencing.At that time, Downey renewed her objection to the circuit court's finding that she violated the terms of her probation, again arguing that the evidence was insufficient for a finding of guilt solely upon Downey's uncorroborated statement that she used alcohol.Downey submitted a letter from the Wayside Christian Mission in Kentucky affirming the fact that Downey was admitted to their inpatient program on July 1, 2009, and that she completed the 12–step part of the program.The letter from Wayside also stated, however, that while in her after-care program, Downey “was abusing medications” and she“was asking other clients for their medications as well.”Downey was allowed to start the program over, but then “decided not to continue after it was discovered that she was displaying the same behavior as before.”

The Commonwealth argued Downey's concession that she consumed alcohol on June 1, 2009, was “clearly a sufficient basis for a violation of probation.”The only question, according to the Commonwealth, was “what to do about it.”The circuit court agreed, and reiterated that Downey was in violation of the terms of her probation.The court, thus, revoked each of Downey's previously suspended sentences and then re-suspended each sentence “under the same terms and conditions the Court has previously directed.”

Downey noted this appeal.

II.Analysis

Downey argues on appeal that the circuit court erred in finding the evidence sufficient to support the conclusion that Downey violated the terms of her probation “when the only evidence of any violation” was Downey's “own uncorroborated statement.”We disagree.

Whether the evidence is sufficient “ ‘to sustain an order of revocation’ ” of a prior criminal conviction is a matter that rests “ ‘within the sound discretion of the trial court.’ ”Whitehead v. Commonwealth,278 Va. 105, 116, 677 S.E.2d 265, 271(2009)(quotingHamilton v. Commonwealth,217 Va. 325, 327, 228 S.E.2d 555, 556(1976)).The court's “ ‘finding of fact and judgment thereon are reversible only upon a clear showing of abuse of such discretion.’ ”Id. at 116, 677 S.E.2d at 271.“ ‘The discretion required is a judicial discretion, the exercise of which implies conscientious judgment, not arbitrary action.’ ”Id.In such cases, the court“is given a wide discretion in the determination of the sufficiency of the cause for revoking the suspension,”Slayton v. Commonwealth,185 Va. 357, 365, 38 S.E.2d 479, 483(1946), taking into account “the law and the particular circumstances of the case,”id. at 367, 38 S.E.2d at 484(citation omitted).

At oral argument, Downey conceded that to prevail in her assignment of error, she would have to persuade us on two points: first, that a revocation proceeding is the equivalent of a criminal trial such that the common law rule—that the corpus delicti of a crime must be based upon more than a defendant's uncorroborated statement—applies, and second, that the common law has not been superseded by the action of the General Assembly in enacting Code§ 19.2–306(A).

To resolve this issue, we need only decide the first point.As Downey correctly notes, a revocation hearing is a “criminal proceeding,”Green v. Commonwealth,263 Va. 191, 196, 557 S.E.2d 230, 233(2002), for which a criminal defendant“is entitled to a judicial hearing,”Slayton,185 Va. at 365, 38 S.E.2d at 483.Downey also correctly notes that “in every criminal prosecution,” the Commonwealth must prove by its evidence “the element of corpus delicti—that is, the fact that the crime charged has been actually perpetrated.”Morning v. Commonwealth,37 Va.App. 679, 685, 561 S.E.2d 23, 25(2002).To that end, we have held “ ‘where the commission of the crime has been fully confessed by the accused only slight corroborative evidence is necessary to establish the corpus delicti.’ ”Id.(quotingHamm v. Commonwealth,16 Va.App. 150, 157, 428 S.E.2d 517, 522(1993)).

A conviction cannot be based solely on the uncorroborated statement of a person that a crime has occurred and that he committed it.The corpus delicti cannot be established by a confession of the accused uncorroborated by any other evidence.

Hamm,16 Va.App. at 157, 428 S.E.2d at 522.Downey reasons that, because Downey's admission to Brown that she consumed alcohol was uncorroborated by any additional evidence, the circuit court erred as a matter of law in finding the evidence sufficient to convict her of what she asserts is the criminal charge of violating the terms of her probation.

Downey's argument is interesting, but unavailing.Indeed, it is well settled that “[p]robation 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” trial.Davis v. Commonwealth,12 Va.App. 81, 84, 402 S.E.2d 684, 686(1991)(emphasis added)(citingGagnon v. Scarpelli,411 U.S. 778, 782, 93 S.Ct. 1756, 1759–60, 36 L.Ed.2d 656(1973)).In fact, “probation statutes are highly remedial and should be liberally construed to provide trial courts a valuable tool for rehabilitation of criminals.”Grant v. Commonwealth,223 Va. 680, 684, 292 S.E.2d 348, 350(1982).While a probation revocation hearing is a criminal proceeding, it is not a criminal trial, and, therefore, “ ‘formal procedures and rules of evidence are not employed.’ ”Davis,12 Va.App. at 84, 402 S.E.2d at 686(quotingScarpelli,411 U.S. at 789, 93 S.Ct. at 1763).Rather, “the process of revocation hearings ‘should be flexible...