Saunders v. Commonwealth

• Decision Date: 04 February 2014
• Docket Number: Record No. 1630–12–2.
• Citation: 62 Va.App. 793,753 S.E.2d 602
• Court: Virginia Court of Appeals
• Parties: Michael Jonthan Garland SAUNDERS v. COMMONWEALTH of Virginia.

62 Va.App. 793

753 S.E.2d 602

Michael Jonthan Garland SAUNDERS

v.COMMONWEALTH of Virginia.

Record No. 1630–12–2.

Court of Appeals of Virginia,

Richmond.

Feb. 4, 2014.

Gregory R. Sheldon (Bain–Sheldon, PLC, on briefs), for appellant.

Eugene Murphy, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on briefs), for appellee.

Present: FRANK, HUFF, JJ., and COLEMAN, S.J.

HUFF, Judge.

Michael J.G. Saunders (“appellant”) appeals an order of the Chesterfield Circuit Court (“trial court”) convicting him of breaching the terms of his suspended sentence, in violation of Code § 19.2–306. Followinga bench trial, appellant was sentenced to seven years' incarceration in the Virginia Department of Corrections, with four years suspended. On appeal, appellant contends that 1) the trial court erred by denying appellant's motion to dismiss show cause order, vacate judgment and set aside the sentence, thereby depriving him of due process of law and equal protection of law; 2) the trial court erred by allowing hearsay evidence over appellant's objections absent a finding of good cause to do so, thereby denying him the right to confront and cross-examine his accusers in violation of the Sixth Amendment of the United States Constitution and denying him due process of law in violation of the Fourteenth Amendment of the United States Constitution; 3) the trial court erred by failing to dismiss the show cause proceeding on due process grounds based upon appellant's argument that Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), required a preliminary hearing or probable cause hearing prior to any final revocation hearing; and 4) the trial court erred by finding the evidence sufficient to prove appellant had violated the terms and conditions of his probation.

For the following reasons, this Court affirms the trial court's convictions.

I. BACKGROUND

On appeal, “ ‘we consider the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial.’ ” Williams v. Commonwealth, 49 Va.App. 439, 442, 642 S.E.2d 295, 296 (2007) ( en banc ) (quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed, the evidence is as follows.

On September 2, 2008, appellant was convicted on a guilty plea to two counts of consensual sodomy with juveniles under Code § 18.2–361(A) and sentenced to five years' incarceration with five years suspended on each count. On August 4, 2009, appellant was found to have violated the terms of probation, whereupon the trial court revoked the suspended sentences and thereafter re-suspended the sentences and returned appellant to supervised probation. On April 20, 2012, appellant, pro se, filed a motion to vacate trial, sentencing, and show cause orders due to lack of subject matter jurisdiction pursuant to Code § 8.01–428 and attacked the constitutionality of his convictions. The trial court subsequently denied appellant's motion on April 23, 2012. Appellant did not appeal that decision. On August 22, 2012, appellant filed the identical motion.¹

On August 22, 2012, appellant, pro se, appeared for a probation revocation hearing accompanied by standby counsel. Appellant's probation officer, Monica Jones (“Jones”), testified that appellant did not comply with the terms of probation. Her testimony and written report were based on assertions made by third persons who were absent from the hearing. Over appellant's hearsay objections, the trial court received into evidence Jones's testimony and written report, finding both to be reliable.

Jones testified that appellant did not comply with probation instruction six, wherein appellant was required to “follow the probation and parole officer's instructions and ... be truthful, cooperative, and report as instructed.” Additionally, she reported that appellant violated the term of his probation to “not purchase, consume or possess alcohol and/or illegal substances.”

Over appellant's hearsay objection, Jones testified that a social worker from Prince George informed her that appellant was in downtown Fredericksburg at 12:30 a.m. on May 12, 2012 and “was extremely intoxicated.” Jones spoke with two people who saw appellant, and both advised her that they witnessed appellant out after curfew and intoxicated. Jones testified that she and a co-worker “went to the bar and questioned a few of the employees ... [but] [t]hey were not familiar with [appellant], nor did they have any videotape of the night in question.”

Jones further testified that when she questioned appellant during the investigation, he denied the incident and stated that his roommate, George Lowe (“Lowe”), could verify that appellant was home that evening. Over appellant's objection, Jones testified that Lowe contacted her and stated that appellant was out and drinking during the night in question and such activity was a “common occurrence.” According to Jones, Lowe also reported that appellant had made threatening comments about using a gun at the probation office.

Jones also indicated that John Williams (“Williams”), a roommate of appellant, mentioned he had been out drinking with appellant on several occasions. Another roommate, Ted Johnson (“Johnson”), informed Jones that appellant asked him to confirm that appellant was home on the night in question, but Johnson refused. Moreover, on a visit to the appellant's home, Jones found a beer can in appellant's room.

At the conclusion of Jones's testimony, the Commonwealth rested and appellant moved to strike the Commonwealth's evidence on the grounds that the hearsay evidence lacked reliability and no evidence corroborated the hearsay presented in the probation report. The court overruled the motion holding that Jones's hearsay testimony was reliable. Appellant then testified, denying drinking and stating he had passed all required drug and alcohol tests.

The trial court found appellant guilty of violating his probation by drinking, being out past curfew, and making threats. Appellant then argued the court did not have authority to impose any sentence due to the holding of Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), striking down an anti-sodomy statute like the one under which appellant had been convicted. The court rejected his argument and entered a three-year active period of incarceration.

On March 12, 2013, the United States Court of Appeals for the Fourth Circuit declared Code § 18.2–361(A) to be facially unconstitutional. MacDonald v. Moose, 710 F.3d 154 (4th Cir.2013). A writ of certiorari was denied in MacDonald.––– U.S. ––––, 134 S.Ct. 200, 187 L.Ed.2d 45 (2013). This appeal followed.

II. ANALYSIS

On appeal, appellant collaterally attacks his underlying conviction based on Lawrence and the recent ruling in MacDonald. Additionally, appellant argues that the trial court erred in allowing hearsay evidence in violation of appellant's Sixth Amendment right of confrontation, failing to dismiss the show cause proceeding on due process grounds under Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and finding the evidence sufficient to prove appellant had violated the terms and conditions of his probation.

As to appellant's first claim, the Commonwealth asserts that the trial court lacked jurisdiction to vacate the original four-year-old unappealed convictions and that challenges to the constitutionality of the statute under which appellant was convicted were barred by res judicata. On the merits, the Commonwealth asserts that the Lawrence holding does not apply to minors and thereby can be distinguished from the matter at hand. Moreover, the Commonwealth argued that because they have sought certiorari in MacDonald, this Court should stay the appeal until the petition is decided.² The Commonwealth maintains that the admission of hearsay at the revocation proceeding was permissible because the trial court found the hearsay testimony to be reliable. Additionally, the Commonwealth claims that the absence of a preliminary hearing is irrelevant after a full evidentiary hearing has been conducted and that the evidence presented was sufficient to establish appellant's violations of probation.

A. Collateral Attack of Underlying Conviction

“Generally, a judgment in a criminal case may not be attacked collaterally.” Eagle, Star and British Dominions Ins. Co. v. Heller, 149 Va. 82, 100, 140 S.E. 314, 319 (1927). “However, a party may assail a void judgment at any time, by either direct or collateral assault.” Morse v. Commonwealth, 6 Va.App. 466, 468, 369 S.E.2d 863, 864 (1988) (citing Beck v. Semones' Adm'r, 145 Va. 429, 441, 134 S.E. 677, 680 (1926)). “A court lacks jurisdiction to enter a criminal judgment if the judgment is predicated upon an unconstitutional or otherwise invalid statute or ordinance.” Fraser v. Commonwealth, 16 Va.App. 775, 777, 433 S.E.2d 37, 38 (1993). A judgment or order entered by a court that lacks jurisdiction of the subject matter is a nullity, Morrison v. Bestler, 239 Va. 166, 170, 387 S.E.2d 753, 755–56 (1990), and “may be impeached directly or collaterally by all persons, anywhere, at any time, or in any manner,” Virginian–Pilot Media v. Dow Jones & Co., 280 Va. 464, 469, 698 S.E.2d 900, 903 (2010). Upon a statute being declared unconstitutional on its face, convictions based thereon are void. Herrera v. Commonwealth, 24 Va.App. 490, 494, 483 S.E.2d 492, 494 (1997) (in the context of a direct appeal, the jurisdictional bar extended to a conviction obtained before the statute was declared unconstitutional). Retroactive application of a constitutional ruling in the context of a collateral review of a criminal conviction is permitted “if it [the new ruling] places ‘certain kinds of primary, private individual conduct beyond the power of the criminal law making authority to prescribe.’ ” Teague v. Lane, 489 U.S. 288, 307, 109 S.Ct....