Green v. Commonwealth

• Decision Date: 14 June 2022
• Docket Number: Record No. 0759-21-1
• Parties: Jessie Lee GREEN v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

75 Va.App. 69

873 S.E.2d 96

Jessie Lee GREEN

v.COMMONWEALTH of Virginia

Record No. 0759-21-1

Court of Appeals of Virginia, Norfolk.

JUNE 14, 2022

(Sydney H. Speight, on brief), for appellant. Appellant submitting on brief.

Virginia B. Theisen, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges Beales, AtLee and Chaney

OPINION BY JUDGE RANDOLPH A. BEALES

Jessie Lee Green appeals an order of the Circuit Court of Gloucester County revoking his suspended sentences for assault and battery on a law enforcement officer and petit larceny. His lone assignment of error on appeal is that the circuit court "erred in sentencing the Defendant to a time period of incarceration not prescribed by [ Code §] 19.2-306.1, thus abusing its discretion in this case and making a mistake of law."

I. BACKGROUND

A. Green's Prior Convictions and Suspended Sentences

In August 2018, Green was convicted of assault and battery on a law enforcement officer, a felony under Code § 18.2-57(C). In December 2018, he was sentenced to three years of incarceration. Six months of that sentence constituted a mandatory minimum. Aside from imposing the six-month mandatory minimum as an active sentence to be served, the trial court suspended the remaining two years and six months of Green's sentence for a period of five years. The suspension was conditioned on Green's compliance with several specific terms set forth by the trial court. In relevant part, the trial court placed Green on supervised probation for five years following his release from incarceration.

In 2019, while Green was on probation, he was arrested and charged with larceny. He pled guilty to petit larceny in September 2019. By order entered on October 1, 2019, Green was convicted and sentenced to twelve months of incarceration for the petit larceny. The trial court suspended nine months of that sentence for a period of five years. Once again, the trial court expressly conditioned the suspension, in part, on Green's compliance with supervised probation for five years following his release from confinement.

As a result of Green's petit larceny conviction, the Circuit Court of Gloucester County revoked the suspended sentence of two years and six months remaining for Green's felony assault conviction. The circuit court ordered Green to serve one year of that sentence and re-suspended the remaining one year and six months. The circuit court again placed Green on supervised probation following his release from incarceration. Green was released in 2020.

Upon his release from incarceration in 2020, Green remained subject to a suspended sentence of one year and six months for the felony assault conviction and a suspended sentence of nine months for the petit larceny conviction. Both suspensions were expressly conditioned on Green's successful completion of supervised probation.

B. Revocation Proceedings Beginning in April 2021

On April 1, 2021, Probation and Parole Officer Daylin Paulino prepared a major violation report documenting multiple probation violations that Green committed while on probation for his felony assault conviction. The report stated that Green had tested positive for amphetamines, oxycodone, and methamphetamine on separate occasions during the period of his supervised probation. Green's probation officer further reported, "Mr. Green has used illegal substances throughout his supervision and has continued his use while in treatment," and "[h]e has failed to maintain contact with this officer and has missed several appointments." The major violation report cited violations of Condition 6 ("I will follow the Probation and Parole Officer's instructions and will be truthful, cooperative, and report as instructed.") and Condition 8 ("I will not unlawfully use, possess or distribute controlled substances or related paraphernalia."). Green's probation officer filed the major violation report in the circuit court the next day—April 2, 2021. Consequently, a capias was issued for Green's arrest on April 7, 2021.

In addition, on April 26, 2021, a different probation officer reported Green's non-compliance with the terms of his probation on the petit larceny conviction. The letter cited Green for numerous violations, including (1) failure to maintain contact with his probation officer, (2) failure to complete substance abuse treatment, and (3) failure to remain drug free. Therefore, the circuit court issued a second capias for Green's arrest on May 4, 2021.

Green was arrested and taken into custody on June 1, 2021. The circuit court ordered that Green remain incarcerated pending a hearing to show cause why his suspended sentences should not be revoked for the violations documented by his probation officers.

On June 21, 2021, Green appeared for his revocation hearing. At the outset of the revocation hearing, the circuit court judge asked, "[I]s the defendant ready to proceed?" Counsel for Green replied, "Judge, we are not" and advised the court that the defense was requesting a continuance. Consequently, at the request of Green's counsel, the circuit court granted a continuance for the defense. In granting the continuance, the order stated, "This case came before the Court for the defendant to answer Capiases to Show Cause" and further stated that the hearing would be continued until July 13, 2021.

In 2021, the General Assembly amended Code § 19.2-306. The amendments became effective on July 1, 2021. That statute now limits the period of active incarceration that a circuit court can impose after revoking a probationer's suspended sentence. See 2021 Va. Acts Sp. Sess. I c. 538, Sp. Sess. I. Subsection (C) of Code § 19.2-306 now provides that the circuit court may "impose a sentence in accordance with the provisions of § 19.2-306.1." Id. In turn, Code § 19.2-306.1 contains specific limitations on sentencing that apply when a circuit court bases its revocation of a suspended sentence on what the statute refers to as certain "technical violations" enumerated in the statute. See id.

When the parties returned to court on July 13, 2021, the attorney for the Commonwealth explained that two different sets of revocation sentencing guidelines had been prepared for the circuit court's consideration. The guidelines that were prepared according to the law in effect before July 1 recommended an active sentence ranging from one year to one year and six months. The guidelines that were prepared according to the law in effect after July 1 contained a range of "up to 14 days."

The Commonwealth urged the circuit court to sentence Green according to the law that was effective at the time Green was placed on probation. The Commonwealth took the position that "the first set of guidelines apply because he was put on probation long before July 1st when the changes in the guidelines came into effect, so he should be under the old system." Counsel for Green countered that the second set of guidelines should apply and that Green's sentence should not exceed fourteen days because the revocation hearing took place after July 1.¹

The circuit court, relying on this Court's decision in Taylor v. Commonwealth , 44 Va. App. 179, 604 S.E.2d 103 (2004), noted that "when a statute is amended while an action is pending, the rights of the parties are to be deemed in accordance with the law in effect when the action is begun, unless the amended statute shows a clear intention to vary such rights." The circuit court judge further stated that the result "would be dictated by Virginia Code Section 1-239 [.]" The circuit court concluded that it needed to apply "the law in effect at the time the probation violation was instituted," which was the law in effect before July 1, 2021. Upon finding that Green had violated his probation on both convictions, the circuit court revoked his suspended sentences without re-suspending any of the one year and six months remaining on the assault conviction or any of the nine months remaining on the petit larceny conviction. The circuit court ordered the sentences to run concurrently, for an active sentence of one year and six months. This appeal followed.

II. ANALYSIS

A. Standard of Review

On appeal, "[w]e ‘view the evidence received at [a] revocation hearing in the light most favorable to the Commonwealth, as the prevailing party, including all reasonable and legitimate inferences that may properly be drawn from it.’ " Johnson v. Commonwealth , 296 Va. 266, 274, 819 S.E.2d 425 (2018) (second alteration in original) (quoting Henderson v. Commonwealth , 285 Va. 318, 329, 736 S.E.2d 901 (2013) ). "In revocation appeals, the trial court's ‘findings of fact and judgment will not be reversed unless there is a clear showing of abuse of discretion.’ " Jacobs v. Commonwealth , 61 Va. App. 529, 535, 738 S.E.2d 519 (2013) (quoting Davis v. Commonwealth , 12 Va. App. 81, 86, 402 S.E.2d 684 (1991) ). However, "[u]nder well-established principles, an issue of statutory interpretation is a pure question of law which we review de novo." Conyers v. Martial Arts World of Richmond, Inc. , 273 Va. 96, 104, 639 S.E.2d 174 (2007). Specifically, "the issue of whether a statute should be applied retroactively presents a question of law that we review de novo on appeal." Taylor v. Commonwealth , 44 Va. App. 179, 184, 604 S.E.2d 103 (2004).

B. The Law Governing Revocation and the Legislation Effective July 1, 2021

"When coupled with a suspended sentence, probation represents ‘an act of grace on the part of the Commonwealth to one who has been convicted and sentenced to a term of confinement.’ " Price v. Commonwealth , 51 Va. App. 443, 448, 658 S.E.2d 700 (2008) (quoting Pierce v. Commonwealth, 48 Va. App. 660, 667, 633 S.E.2d 755 (2006) ); see also Rease v. Commonwealth , 227 Va. 289, 295, 316 S.E.2d 148 (1984) (noting that when a probationer absconds from supervision, "the act of grace in granting probation in the first place is rendered a nullity"). "In the absence of a...