Price v. Com.

• Decision Date: 08 April 2008
• Docket Number: Record No. 2287-06-1.
• Citation: 51 Va. App. 443,658 S.E.2d 700
• Court: Virginia Court of Appeals
• Parties: Vincent PRICE v. COMMONWEALTH of Virginia.

658 S.E.2d 700

51 Va. App. 443

Vincent PRICE v. COMMONWEALTH of Virginia.

Record No. 2287-06-1.

Court of Appeals of Virginia, Chesapeake.

April 8, 2008.

Lenita J. Ellis, for appellant.

Karri B. Atwood, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

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

D. ARTHUR KELSEY, Judge.

Vincent Price appeals two orders finding him in violation of the conditions of his supervised probation. He claims the circuit court failed to give him proper written notice of the grounds for the alleged violations prior to the revocation hearing. Price also contends the court abused its discretion by imposing active incarceration in one of the two revocation orders. We disagree and affirm.

I.

Price was convicted in 1996 for possessing cocaine with intent to distribute. In 2001, Price was found guilty of statutory burglary. He received partially suspended sentences on each of these convictions, coupled with concurrent periods of suspension and supervised probation. The 2001 conviction caused Price to be in violation of the terms of his 1996 suspended sentence, resulting in a partial revocation and the imposition of eighteen months of incarceration. Within a week or so after being released from jail in 2005, Price tested positive for cocaine use. About a month later he failed to report as ordered for a meeting with his probation officer. Shortly thereafter he was arrested again, this time for burglary and grand larceny.

Price's probation officer advised the circuit court of the new arrests and recommended a hearing to determine whether the court should revoke Price's suspended sentences. The court issued a capias ordering the arrest of Price and directing that he be brought before the court for a probation violation hearing. The capias listed Price's recent arrests as the basis for the probation violation charge. The probation officer later forwarded to the court a major violation report identifying the new charges against Price. The report, however, also alleged that Price violated the conditions of probation due to his use of cocaine and his failure to report.

Price went to trial on his two new charges and was acquitted of both. After trial, the probation officer wrote a letter to the court suggesting that the probation violation proceeding be dismissed. At the revocation hearing, Price endorsed this view and added that due process principles required the court to dismiss because the capias listed only the new charges as the basis for the alleged probation violation. The additional allegations in the major violation report, Price argued, could not be considered.¹

The court rejected Price's argument and held that the major violation report should be considered. Finding that Price violated the terms of probation by using cocaine and by failing to report, the court revoked a portion of the remaining suspended sentence on the 1996 conviction and imposed three years of active incarceration. The court also revoked and resuspended in full the sentence on Price's 2001 conviction.

II.

A. WRITTEN NOTICE OF PROBATION VIOLATION

On appeal, Price correctly points out that the capias mentioned his recent arrests but not the other two probation violations alleged in the probation officer's major violation report. From that premise, Price contends due process principles required the circuit court to dismiss the probation violation proceeding. Like the trial court, we see no merit in this argument.

Because a revocation proceeding is not "a stage of criminal prosecution," a probationer accused of violating the conditions of probation "is not entitled to the same due process protections afforded a defendant in a criminal prosecution." Logan v. Commonwealth, 50 Va.App. 518, 525, 651 S.E.2d 403, 406 (2007). Instead, a probationer receives certain "minimum procedural safeguards," Black v. Romano, 471 U.S. 606, 611, 105 S.Ct. 2254, 2257, 85 L.Ed.2d 636 (1985), which include, among other basic protections, "written notice of the claimed violations," Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 1761, 36 L.Ed.2d 656 (1973) (citation omitted).

Show-cause orders can satisfy the written notice requirement, see, e.g., Howie v. Commonwealth, 222 Va. 625, 630, 283 S.E.2d 197, 200 (1981), as can correspondence from prosecutors, see, e.g., Logan, 50 Va.App. at 525, 651 S.E.2d at 406. The important thing is not the form, but the fact, of notice. See, e.g., Copeland v. Commonwealth, 14 Va.App. 754, 756, 419 S.E.2d 294, 296 (1992) (finding due process violation when the probationer received no notice of the "time" or the "grounds" for the hearing or any "notice that the trial court would consider revocation of his suspended sentence").

In this case, Price received a major violation report from the probation officer prior to the hearing. The report stated that Price violated the conditions of probation by testing positive for cocaine, by failing to report, and by receiving new charges. The report listed each as a separate violation. The circuit court based its holding on Price's use of cocaine and his failure to report. Prior to his hearing, therefore, Price received written notice of both grounds relied upon by the court for its conclusion that he violated the conditions of probation.

Unlike Price, we fail to see any constitutional significance in the fact that the capias noted only one of the three alleged probation violations. A capias is simply a bench warrant of arrest—not a charging document or some form of judicially-issued notice pleading. The function of a capias is to authorize a law enforcement officer to take the probationer into custody. See Black's Law Dictionary 221 (8th ed. 2004). Certainly a capias can and sometimes does serve as a means of itemizing the allegations underlying a claimed probation violation. But due process does not require that it do so when other written notices suffice.²

B. IMPOSITION OF ACTIVE INCARCERATION

Price also argues the circuit court abused its discretion by imposing a period of active incarceration upon finding that he violated the conditions of probation. We again disagree.

Code § 19.2-306 authorizes a circuit court to revoke a suspended sentence "for any cause deemed by it sufficient...." On appeal, a revocation decision "will not be reversed unless there is a clear showing of abuse of...