Harris v. Commonwealth

CourtCourt of Appeals of Virginia
Docket Number1126-21-4
Decision Date01 November 2022




No. 1126-21-4

Court of Appeals of Virginia

November 1, 2022


Meghan Shapiro, Senior Assistant Public Defender (Virginia Indigent Defense Commission, on briefs), for appellant.

Lindsay M. Brooker, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges Huff, Raphael and Lorish



Frank Devon Harris ("appellant") appeals the trial court's judgment revoking his previously suspended sentences and imposing a sentence of nine years and twelve months' incarceration. He assigns the following as error:

The trial court erred by imposing ten years of active incarceration on Mr. Harris, and denying his motion to reconsider, where he stipulated to committing a new misdemeanor and violating a single technical condition of his probation, and his mitigation included profound developmental disabilities

Appellant argues that the trial court abused its discretion by (1) finding that he violated conditions he asserts were impossible for him to meet; (2) not considering reasonable alternatives to incarceration; (3) improperly weighing the relevant factors; and (4) finding that probation could not provide appropriate disability accommodations for him. This Court disagrees and affirms the trial court's judgment.



"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 (2013) (quoting Davis v. Commonwealth, 12 Va.App. 81, 86 (1991)). "The evidence is considered in the light most favorable to the Commonwealth, as the prevailing party below." Id.

In 2011, appellant was convicted of attempted forcible sodomy and abduction, and he sentenced to ten years' incarceration with five years and six months suspended for each of the two counts. The trial court also imposed an indefinite period of supervised probation to follow his release from prison.

Appellant served his sentences and began supervised probation on April 4, 2019. Although he planned to live with his aunt in Maryland, her apartment complex did not allow sex offenders, which left appellant homeless. Probation placed appellant in a hotel for one week and "provided him with food gift cards, bus tokens, and coordinated services with the Community Services Board [("CSB")] to ensure his history of mental health disorders were quickly addressed."

Appellant did not adjust well to probation. In May 2019, probation officer Cheryl Scott reported that appellant "made it clear to probation he did not want or need mental health or substance abuse treatment," failed to attend a CSB appointment, violated global positioning system ("GPS") monitoring requirements, failed to obtain employment, and acted "verbally abusive and uncooperative." The trial court found appellant in violation of his probation conditions but did not revoke any of his previously suspended sentences, instead opting to continue him on probation.

In January 2020, probation officer Keith Brown alleged that appellant was late to two office visits, "[h]is explosive behavior" toward staff at the winter shelter led to his repeated


banning from the shelter, he had used social media "to interact and groom unsuspecting women," he had accessed dating sites, "various casual sex and escorts sites," and pornography sites involving teens that had "themes of aggression and pain," and he had dated a woman for approximately one month without informing her of his sexual-offending behavior. Brown and appellant discussed a treatment plan for appellant's mental health concerns, and probation again provided appellant with a hotel room for several weeks, as well as bus tokens, food gift cards, and a CSB treatment plan that included an evaluation for community treatment and Adult Developmental Disability Services. The trial court revoked appellant's suspended sentence for forcible sodomy and resuspended all but one year of that sentence. The trial court took no action on his abduction sentence.

Appellant returned to supervised probation in December 2020. In February 2021, probation officer Ian Kjera filed a major violation report ("MVR") alleging that appellant obtained his old smartphone within hours of being released despite being prohibited from using a smartphone without monitoring software and used that phone to access Facebook, contact a female friend, and access pornography. Appellant told Kjera that "he 'might' go commit a crime" if not allowed to possess the phone. At Kjera's request, appellant placed the phone in a trash can, but he later retrieved it when Kjera looked away. Moreover, appellant possessed another phone in February 2021, lied that it belonged to a friend, and refused to discard it. Finally, appellant was charged with shoplifting in December 2020 and convicted in May 2021 of an amended charge of trespassing after being forbidden to do so, a Class 1 misdemeanor. See Code § 18.2-119.

Kjera described appellant's attitude as "poor" and "confrontational," reported that he "made repeated statements of his desire to go back to jail where he was treated better than in the community," and "was clear that he would go back to jail and violate his conditions again after


he got out, [thus] continuing the cycle until he died." Kjera developed a case plan and gave appellant a paper copy, which appellant threw in the trash before leaving the probation building.

Kjera alleged that appellant violated Condition 1-requiring that he obey all laws-and Condition 6-requiring that he follow probation's instructions and be truthful and cooperative. Specifically, Kjera alleged that appellant violated Condition 6 by violating special instructions applicable to sex offenders requiring that he refrain from using social networking, accessing the internet without probation's permission, and possessing sexually explicit materials.

In an addendum to the MVR, Kjera asserted that appellant was removed from a homeless shelter after fighting with another resident, was subsequently removed from a hotel for threatening the hotel manager, had stopped taking mental health medication he had been prescribed in December 2020, and had not attempted to use employment or residential services at the shelter. In a second MVR addendum, Kjera reported that appellant continued to access the internet using a phone and had verbally abused the senior probation officer. Kjera opined that appellant's "assumption that the duties of probation include a requirement to meet his basic needs and secure housing for him [is] problematic in that he appears to take no accountability in seeking available services himself." The trial court issued a capias in March 2021.

At the August 2021 revocation hearing, appellant stipulated to the violations alleged in the February MVR and subsequent addenda. Neither side presented evidence. Appellant's argument focused on the importance of a phone in applying for jobs and securing CSB services, especially because he was prohibited from using the library due to his underlying offense. Appellant admitted he "was not the best probationer" but argued that he "struggles to understand concepts and has to be explained and spoon fed in many ways" due to low level intellectual functioning. Finally, he proffered that he had been appointed as a quarantine trustee at the jail.


His counsel conceded, "I don't think probation is proper anymore," and asked the court to consider a time-served sentence or a sentence near the low end of the sentencing guidelines.

Noting that appellant had appeared for probation violations three times in two years, the trial court explained that it was troubled by his "abusive and confrontational" behavior toward his probation officer, his failure to take his medication, and the fact that he threw away his probation plan. The trial court agreed that appellant "really need[ed] probation behind [him] to get reconnected" with society but found that appellant had refused to cooperate with probation. The court concluded, "I don't think probation is going to work out for you. I just don't think that's going to work. And when it can't work, the only thing I have to fall back on is a sentence that was just in the first place." The court accordingly reimposed the remaining nine years and twelve months of appellant's suspended sentences and terminated probation.

Appellant subsequently moved for reconsideration of his sentence, providing the trial court with further details about his intellectual difficulties. Specifically, appellant noted that he was born with fetal alcohol syndrome to a fourteen-year-old, homeless, single mother, had an IQ of 66, and was diagnosed with attention deficit hyperactive disorder, intermittent explosive disorder, mood disorder with psychotic features and hallucinations, bipolar disorder, Asperger's syndrome, organic brain syndrome, tic disorder, and several speech impediments. In his motion, appellant argued these disorders made it "incredibly difficult for him to be successful on probation." Although it was somewhat unclear, appellant's motion appeared to suggest that it was still appropriate for the trial court to terminate his probation but that it should not have reimposed his entire suspended sentences.

The trial court held a hearing on the reconsideration motion on October 15, 2021. Appellant offered testimony from an attorney, Melissa Heifetz, with a group identified as Advocacy Partners, LLC. Additionally, a letter from Ms. Heifetz was received as an exhibit.


Heifetz was presented as an advocate for people with developmental disabilities and an expert "to provide insight on how those with significant disabilities and mental health issues are...

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