Jenkins v. Commonwealth

• Decision Date: 17 December 2019
• Docket Number: Record No. 1428-18-4
• Citation: 71 Va.App. 334,835 S.E.2d 918
• Parties: Torrance Juarez JENKINS v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

71 Va.App. 334

835 S.E.2d 918

Torrance Juarez JENKINS

v.COMMONWEALTH of Virginia

Record No. 1428-18-4

Court of Appeals of Virginia, Leesburg.

DECEMBER 17, 2019

Cole Dadswell, Assistant Public Defender, for appellant.

Liam A. Curry, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Humphreys and Russell

OPINION BY CHIEF JUDGE MARLA GRAFF DECKER

Torrance Juarez Jenkins appeals a ruling of the circuit court revoking his suspended sentence for two theft offenses.¹ He contends that the trial court violated his due process rights by admitting testimonial hearsay contained in a report. We hold that the court’s admission of the report for sentencing purposes in the instant proceeding was not error. Consequently, we affirm the revocation of the suspended portion of the appellant’s sentence.

I. BACKGROUND²

The appellant was convicted in 2003 for obtaining money by false pretenses and uttering a forged check, in violation of Code §§ 18.2-172 and -178. He was sentenced to a total of twenty years in prison with fourteen years suspended. The suspension was conditioned, among other things, on twenty years of good behavior and an indefinite period of supervised probation. In 2010, 2014, and 2018, the appellant was found to have violated the terms and conditions of his suspended sentence. It is from the 2018 violation that he appeals, and he challenges the admission of evidence from the 2010 proceeding in the 2018 revocation hearing.

A. The 2010 Revocation Proceeding

In a 2009 letter, Susan Sokol, a senior probation officer for District 21 in Fredericksburg, notified the Commonwealth’s Attorney that she sought the issuance of a show cause order against the appellant for violating his probation. In her 2009 letter and a 2010 addendum (collectively the 2010 report), Sokol notified the court that the appellant violated his probation in three different ways.

First, the appellant tested positive for cocaine use in April 2009, and he admitted having used the drug four days earlier. Second, the appellant absconded from supervision. Sokol reported that after his April 2009 visit to the District 21 probation office, she worked with District 32 to make a home contact at the address that the appellant had provided for himself in Henrico County. Sokol detailed some of the specific efforts that she personally took to try to reach him, as well as "notice" provided by District 32 "that they attempted a[ ] home contact" in July 2009 and were told by the appellant’s aunt that he no longer lived there. Sokol then checked the local hospital, as well as the Virginia jails, and determined that his "whereabouts [were] unknown." Sokol concluded that the appellant had violated the condition of his suspended sentence that he could "not abscond from supervision" and would be "considered an absconder when [his] whereabouts [were] no longer known to [his] supervising officer." Third, Sokol related that the appellant had been arrested on new misdemeanor charges. The existence of these new charges was confirmed by the appellant’s criminal history record.

In the 2010 revocation proceeding, the appellant "pleaded guilty" to "having violated the terms and conditions of ... [the] suspension." The court accepted the appellant’s acknowledgment of guilt. After receiving evidence and hearing argument, it revoked his previously suspended fourteen-year sentence and resuspended thirteen years, giving him a year to serve.

B. The 2014 Revocation Proceeding

In 2014, the court held a second revocation proceeding based on a new violation. After hearing evidence and argument, the court found that the appellant had again violated the terms of his suspended sentence. It revoked his previously suspended thirteen-year sentence, imposed one year, and resuspended the remaining twelve years.

C. The 2018 Revocation Proceeding

The court held a third revocation hearing in 2018. The appellant "conced[ed] the violation," and the court accepted his "plea." The prosecutor then offered, specifically as "evidence ... on the issue of sentence ," the appellant’s criminal history report and his 2010 probation violation report.³ (Emphasis added). The appellant objected to the admission of the report on testimonial hearsay grounds. He also argued that considering the 2010 report again in the 2018 proceeding would constitute inappropriately "holding the same behavior against him on multiple occasions."

The court admitted the 2010 report. It did so based in part on a finding that the appellant’s acknowledgment of guilt in 2010 amounted to a "concession of [the report’s] reliability." The judge noted that he would not "sentenc[e] the [appellant] again for the previous violations." He specifically mentioned that one of the allegations in the 2010 report was absconding and "that[ was] one of the violations [in the 2018] case as well." However, he assured the appellant that he merely "want[ed] to see whether the behavior indicated [was] the same, better, [or] worse" and that he would consider the prior violations only "in the sense that they accumulate."

The court then heard argument from the parties regarding sentencing, which included general comments about the appellant’s recidivism. After argument, the court noted the appellant’s criminal history of almost thirty years and imposed the four years recommended by "[t]he guidelines ... for this case, not for the previous violations." Clarifying the ruling, the court revoked the twelve years remaining on the appellant’s sentence, imposed four years, and resuspended the remaining eight years. It imposed the same terms and conditions on the suspended sentence, except that it removed the condition of probation.

II. ANALYSIS

The appellant argues that the admission of the 2010 report in the 2018 proceeding was error. He asserts that although a defendant is entitled to less protection against the admission of testimonial hearsay at a revocation hearing than at a trial, he should nevertheless have been allowed some degree of confrontation. He suggests that the fact that he conceded at the 2010 hearing that he had violated the conditions of his suspended sentence, standing alone, was inadequate to establish the degree of reliability required to admit the 2010 report in the 2018 proceeding over his objection.

A. Standard of Review on Appeal

An appellate court reviews evidence relevant to an admissibility issue "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." Henderson v. Commonwealth, 285 Va. 318, 329, 736 S.E.2d 901 (2013). Generally, the proponent of evidence bears the burden of demonstrating its admissibility in the trial court. Holloman v. Commonwealth, 65 Va. App. 147, 168, 775 S.E.2d 434 (2015). On appeal, a determination regarding the relevance and admissibility of evidence is ordinarily reviewed for an abuse of discretion. Henderson, 285 Va. at 329, 736 S.E.2d 901. However, in evaluating the admission of an out-of-court statement for a constitutional due process challenge, we "accept[ ] the historical facts" and "apply a de novo review" to determine whether the record supports admitting the challenged evidence as a matter of law. Id. It is under these legal principles that we review the appellant’s challenge to the admissibility of the 2010 report.

B. Standard for Assessing Admissibility of Challenged Hearsay Evidence

A defendant in the guilt phase of a criminal trial is entitled to a host of constitutional rights, including the right under the Sixth Amendment of the United States Constitution to be confronted by the witnesses against him. See id. at 325, 736 S.E.2d 901 ; Moses v. Commonwealth, 27 Va. App. 293, 300, 498 S.E.2d 451 (1998) (recognizing that "the right to confrontation is a trial right" (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 52, 107 S.Ct. 989, 999, 94 L.Ed.2d 40 (1987) )). However, once a "criminal prosecution has ended in a conviction," the defendant "is not entitled to the ‘full panoply’ of constitutional rights to which he was entitled at trial." Henderson, 285 Va. at 325, 736 S.E.2d 901 (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972) ). Consequently, "application of the Confrontation Clause to ... post-trial ... proceedings is inappropriate." Moses, 27 Va. App. at 301, 498 S.E.2d 451 (sentencing); see Henderson, 285 Va. at 325-26, 736 S.E.2d 901 (revocation).

Nevertheless, a defendant has a limited right of confrontation in criminal sentencing and any subsequent revocation proceedings under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. See Henderson, 285 Va. at 325-26, 736 S.E.2d 901 (revocation); Moses, 27 Va. App. at 301, 498 S.E.2d 451 (sentencing). The rules of evidence are not " ‘strictly applied’ " in such proceedings, and hearsay is "frequently admitted." Henderson, 285 Va. at 326, 736 S.E.2d 901 (revocation) (quoting United States v. Doswell, 670 F.3d 526, 530 (4th Cir. 2012) ); see McCullough v. Commonwealth, 38 Va. App. 811, 816, 568 S.E.2d 449 (2002) (sentencing).

The appellant argues that the Fourteenth Amendment due process principles governing the admissibility of hearsay in criminal sentencing proceedings are the same as those governing the admissibility of hearsay in all stages of revocation proceedings. Although the overarching due process principles may be the same, the Court has previously rejected this attempt to equate the principles applicable in criminal sentencing proceedings with those applicable in the "assessment of wrongdoing" portion of revocation proceedings. See, e.g., Blunt v. Commonwealth, 62 Va. App. 1, 9-11, 741 S.E.2d 56 (2013).⁴

The due process standards applicable in these two types of proceedings differ. To be admissible at criminal sentencing, Virginia case law provides that hearsay evidence must be shown to "bear some indicia...