Pierce v. Com.

• Decision Date: 29 August 2006
• Docket Number: Record No. 1711-05-2.
• Citation: 633 S.E.2d 755,48 Va. App. 660
• Parties: Williams Patrick PIERCE, II, s/k/a Patrick William Pierce, II v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

633 S.E.2d 755

48 Va. App. 660

Williams Patrick PIERCE, II, s/k/a Patrick William Pierce, II v.COMMONWEALTH of Virginia.

Record No. 1711-05-2.

Court of Appeals of Virginia, Chesapeake.

August 29, 2006.

Michael J. Hallahan, II, for appellant.

Virginia B. Theisen, Senior Assistant Attorney General(Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: FELTON, C.J., and ELDER and BEALES, JJ.

FELTON, JR., Chief Judge.

Williams Patrick Pierce, II("appellant") appeals the November 2001 judgment of the trial court revoking his previously suspended sentences after finding that he violated the terms and conditions of his probation.He contends that the trial court erred in its judgment because 1) the capias for his arrest for probation violations was invalid as it was based on the unsworn written statements of his probation officers; 2) the evidence was not sufficient to support issuance of the capias; 3) the probation revocation hearing was not held within the time limitations of Code§ 19.2-306; and 4) that the court erred in ordering that his sentences run consecutively, rather than concurrently as provided in his original sentencing orders, and in failing to credit him with serving six months on one of his sentences after a previous probation violation.In January 2006, appellant was granted a delayed appeal.

BACKGROUND

Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, the prevailing party in the trial court, granting to it all reasonable inferences fairly deducible therefrom.SeeJuares v. Commonwealth,26 Va.App. 154, 156, 493 S.E.2d 677, 678(1997).

So viewed, the record reflects that appellant was convicted in May 1987 following his pleas of guilty to two charges (indictment numbers 86-263-1 and 86-263-2) of obtaining money by false pretences from the University of Virginia.He was sentenced to twenty years imprisonment on each conviction, the sentences ordered to run concurrently.Thereafter, the court suspended fifteen years of each sentence, and ordered that appellant serve five years of each sentence, those sentences to be served concurrently.The fifteen-year suspended sentences were conditioned on appellant being of good behavior for ten years, with five years of supervised probation following his release from incarceration, and thereafter by five years of unsupervised probation.In addition, appellant was ordered to pay restitution of $58,581.37 at the rate of a minimum of $100 per month.

Following his release from incarceration, appellant failed to pay restitution as ordered.In November 1990, he was found to have violated the terms and conditions of his probation, specifically failing to pay restitution.The trial court revoked both of his previously suspended sentences.It reimposed and then resuspended the entire fifteen-year sentence on indictment number 86-263-1.It also reimposed the fifteen-year sentence on indictment number 86-263-2, and then suspended fourteen years and six months.Appellant thereafter served the imposed six months incarceration in 1991.

In August 1992, appellant requested transfer of his probation supervision to California pursuant to the Interstate Compact for the Supervision of Parolees and Probationers ("Interstate Compact").SeeCode§ 53.1-176.2.His request was granted on the specific condition that he continue to be bound by Virginia's probation restrictions.He acknowledged in writing that he would "when duly instructed by the Charlottesville Circuit Court return at any time to the state of Virginia."As a further condition for the transfer of his probation supervision to California, he agreed to "waive extradition to the state of Virginia from any jurisdiction . . . where [he] may be found and also agree[d] that [he][would] not contest any effort by any jurisdiction to return [him] to the state of Virginia."Additionally, the period of his supervised probation was extended to December 20, 1994.

Appellant's probation was transferred to California in June 1993.While under California's supervision of his probation, appellant failed to make regular restitution payments and to maintain regular contact with California probation authorities.In December 1994, a show cause order was issued by the Virginia trial court ordering appellant to "show cause, if any, why a probation violation hearing should not be scheduled."In February 1995, after appellant failed to return to Virginia to answer the show cause, the trial court ordered a capias for his arrest.

The capias remained outstanding until California authorities located appellant in September 1996, at which time he was arrested.Prior to his return to Virginia following his arrest, appellant was convicted of two counts of felony child molestation in California and served three-years imprisonment.Virginia authorities filed a detainer with California to retain custody of appellant on completion of his sentence so that he could be returned to Virginia to answer the probation violation charge.Notwithstanding the detainer, appellant was released from incarceration on the completion of his California sentence in May 1999.Appellant was again arrested on the Virginia capias in August 2000 and thereafter extradited to Virginia.He first appeared before the trial court in Virginia that same month.He remained continuously incarcerated until his probation revocation hearing was held in September 2001.¹

At the September 2001 revocation hearing, appellant moved to dismiss the probation violation proceedings, arguing that the capias for his arrest was invalid because it was not based on probable cause and was issued on the unsworn written statements of probation officers in violation of the Fourth Amendment to the United States Constitution and Code § 19.2-72.²He also argued that the revocation hearing was not held within the time limitations of Code§ 19.2-306.³The trial court denied appellant's motion to dismiss and, following a hearing, found that he"willfully violated" the terms and conditions of his probation.

The trial court revoked the suspended fifteen-year sentence on indictment number 86-263-1, reimposed all fifteen years, and then resuspended thirteen years of that sentence, ordering appellant to serve two years imprisonment on that sentence.It also revoked the suspension of the fifteen-year sentence on indictment number 86-263-2, reimposed that sentence, and then resuspended all of that sentence.The trial court then ordered the two sentences to run consecutively, in contradiction to the May 1987 sentencing order, wherein appellant's sentences of incarceration were ordered to run concurrently.⁴

Appellant timely filed a notice of appeal in November 2001.His appeal was not timely perfected, but a delayed appeal was granted in January 2006.

I.ISSUANCE OF THE CAPIAS

Appellant contends that the trial court erred in denying his motion to dismiss the revocation proceeding.He argues that the capias on which he was arrested in California was invalid as it was not issued on statements, "supported by oath or affirmation," as required by the Fourth Amendment and Code§ 19.2-72.He also contends that the Commonwealth's failure to call his California probation officer as a witness at the probation violation hearing prevented the trial court from "knowing the circumstances around whether or not [he] had paid the restitution" and that the evidence was insufficient to establish probable cause to issue the capias for his arrest.

While the Fourth Amendment and Code§ 19.2-72 require that an arrest warrant for an individual accused of violating the criminal law be based on sworn statements establishing probable cause, there is no such requirement imposed on the seizure of a probationer, previously convicted of a criminal offense, whose sentence to confinement has been suspended based on his failure to comply with specified terms and conditions of his probation.Code§ 53.1-149.Code§ 53.1-149 provides, in pertinent part, that:

[a]ny probation officer appointed pursuant to this chapter may arrest a probationer without a warrant . . . by a written statement setting forth that the probationer has, in the judgment of the probation officer, violated one or more of the terms or conditions upon which the probationer was released on probation.

In denying appellant's motion to dismiss, the trial court noted it "would prefer that [the written statements containing allegations of the probation violations] be verified, but that it is not required by law and [the probation officer's statement] is reliable enough for the Court to issue the capias."We agree.

We note that probation is, as was the case with appellant here, an act of grace on the part of the Commonwealth to one who has been convicted and sentenced to a term of confinement.As we have often stated, probation is remedial in nature, designed to give the sentenced person an opportunity to avoid the imposed incarceration while living under specified conditions of probation and, where required, paying restitution to the victims he has harmed.SeeMcCullough v. Commonwealth,38 Va.App. 811, 814, 568 S.E.2d 449, 450(2002).See alsoBriggs v. Commonwealth,21 Va.App. 338, 344, 464 S.E.2d 512, 514(1995).In cases where the convicted individual fails to comply with terms and conditions of that probation, the probation officer is empowered to arrest him and to cause him to be confined and brought before the court to answer why his probation should not be revoked.Code§ 53.1-149.SeeMiller v. Commonwealth,25 Va.App. 727, 743-44, 492 S.E.2d 482, 491(1997)("The legislature granted . . . probation officer[s] supervisory responsibility for [a defendant's] conduct and treatment during the course of his probation . . . including the responsibility for arresting him for a violation of his probation.").While a revocation hearing is a criminal proceeding, it "is not a state of a...