Sherman v. Commonwealth
| Docket Number | 1368-22-4 |
| Decision Date | 29 August 2023 |
| Parties | MICHAEL ANTHONY SHERMAN v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Daniel S. Fiore, II Judge
Marc Canellas, Assistant Public Defender, for appellant.
Collin C. Crookenden, Assistant Attorney General (Jason S. Miyares Attorney General, on brief), for appellee.
Present: Judges Athey, Ortiz and Senior Judge Clements Argued at Leesburg, Virginia
Michael Anthony Sherman appeals the circuit court's judgment revoking and imposing the balance of his previously suspended sentence, which was over four years' active incarceration. Sherman contends that his sentence violated Code § 19.2-306.1(C)'s prohibition on active incarceration for a first technical violation. Alternatively Sherman contends that even if the circuit court had the statutory authority to impose the balance of his sentence, the sentence imposed was nevertheless an abuse of discretion because it did not account for his mitigating evidence and was "excessive." Assuming without deciding that Code § 19.2-306.1 applied to Sherman's revocation proceedings, we hold that Sherman committed a non-technical violation for which the circuit court had the authority to impose the balance of his previously suspended sentence. Additionally, we find that the circuit court did not abuse its discretion in fashioning the length of Sherman's sentence or considering his mitigation evidence.
On December 6, 2017, the circuit court convicted Sherman of assault and battery of a family or household member, third offense, upon his guilty plea and, on May 4, 2018, sentenced him to five years' incarceration. The court suspended all but "time served"[1] of that sentence conditioned upon successful completion of four years' supervised probation. The court ordered Sherman: to comply with all "probation rules," including that Sherman "[o]bey all Federal, State and local laws and ordinances"; "[r]eport any arrests . . . within three (3) business days" to his probation officer; "[n]ot consume alcoholic beverages to the extent that it disrupts or interferes with [his] employment or orderly conduct or as otherwise ordered by the [c]ourt"; not "unlawfully use, own, possess or distribute controlled substances or related paraphernalia"; and "[n]ot change [his] residence without" his probation officer's permission-which the court designated as Conditions 1, 2, 7, 8, and 10, respectively. Additionally, as "[s]pecial [c]onditions," the court ordered Sherman to (1) complete inpatient substance abuse treatment at "the Phoenix House," (2) complete an anger management program, and (3) "remain drug and alcohol free" while on probation and submit to drug testing to ensure compliance.
Sherman completed the Phoenix House program and anger management treatment as directed but "struggled with substance abuse dependency." In October 2019, Sherman "relapsed" and began consuming alcohol, so Sherman's probation officer transported him to a detoxification facility. After Sherman left the facility in November 2019, he refused to complete another substance abuse program, began consuming alcohol again, and stopped contacting his probation officer. On February 7, 2020, the probation officer reported that Sherman had violated his probation by failing to complete substance abuse treatment as directed, absconding from supervision, and consuming alcohol. The circuit court issued a capias on February 13, 2020; Sherman was arrested on April 17, 2020, and admitted to bail. While on bail, Sherman continued to consume alcohol and was convicted of public intoxication. He then returned to the Phoenix House for substance abuse treatment.
On September 11, 2020, the circuit court conducted a revocation hearing based on the reported violations. The court dismissed the probation violations and returned Sherman to supervised probation under the "same terms and conditions."
Around November 17, 2020, Sherman changed his address without notifying his probation officer. Sherman also missed several scheduled appointments in January and February 2021, and his probation officer was unable to contact him until January 23, 2022. Additionally, on January 23, 2022, Sherman was arrested for public intoxication and assault after he drunkenly attacked a restaurant employee, who sustained a concussion and facial injuries. Police found marijuana when they searched Sherman incident to arrest. Sherman did not report his arrest to his probation officer.
On March 25, 2022, based on those circumstances, Sherman's probation officer reported that he had violated Conditions 1, 2, 7, 8, and 10, and the special "No Alcohol" condition.[2] On April 7, 2022, the circuit court issued a capias, and Sherman was arrested on April 23, 2022.
At the revocation hearing, Sherman stipulated that he had failed to report his change of address in November 2020 and his arrest in January 2022 to his probation officer. Sherman maintained, however, that those violations amounted to a "first technical violation" under newly enacted Code § 19.2-306.1(C), which prohibited imposing active incarceration, and he "request[ed] that he be released bed-to-bed to a shelter" for substance abuse treatment. In support of his request, Sherman proffered that the public intoxication and assault charges arising from the January 23, 2022 incident had been nolle prosequied. In addition, he had "relapsed into drinking" and become homeless after completing the Phoenix House program and anger management treatment in October 2019. Following his first arrest for public intoxication around April 2020, Sherman had continued "drinking" for "over a year" until he "picked up [the] charges that were ultimately nolle prossed." Additionally, Sherman introduced a letter establishing that around February 11, 2022, he arrived at a homeless shelter and began attending "AA" meetings and "applying for jobs." In another letter, Sherman's friend reported that Sherman could "work and s[t]ay clean when he had a stable place to live" but would consume alcohol when he was homeless.
In response, the Commonwealth did "not object" to Sherman's housing "plan" if Sherman's probation officer approved it. The probation officer told the court that she approved Sherman's housing plan, but asserted that Sherman had violated the sentencing order's "no alcohol" requirement, which was a "special condition" rather than a "first-time technical violation." The probation officer thus asserted that the circuit court was "not bound by the [discretionary sentencing] guidelines," which were calculated using the new statutory framework and recommended no active incarceration.
Sherman countered that although the sentencing order required him to remain "alcohol free" while on probation, his drinking amounted to a failure to refrain from the use of "alcoholic beverages to the extent that it disrupt[ed] or interfere[d] with [his] employment or orderly conduct," which Code § 19.2-306.1(A)(vi) expressly defines as a technical violation. Sherman asserted that because he had no prior probation violations, he had committed a "first technical violation" and, therefore, Code § 19.2-306.1(C) prohibited the court from imposing active incarceration.
The circuit court held that Code § 19.2-306.1 did "not apply" to the revocation proceedings because some of Sherman's violation conduct occurred "before the new statute was enacted." Additionally, the court found that there was "proper cause" to revoke the balance of Sherman's previously suspended sentence.[3] Before imposing sentence, the court considered a presentence investigation report that detailed Sherman's lengthy criminal record, including numerous convictions for assault, disorderly conduct, and public intoxication. Based on that evidence and Sherman's purportedly violent conduct while on probation, the court found that Sherman was a danger to himself and the community and that alcohol was his "driver." Accordingly, the court revoked and imposed the balance of Sherman's previously suspended sentence, which was over four years' incarceration.
The circuit court denied Sherman's subsequent motion to reconsider his sentence under Code § 19.2-303. Sherman appeals.
"On appeal, '[w]e "view the evidence received at [a] revocation hearing 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."'" Green v Commonwealth, 75 Va.App. 69, 76 (2022) (alterations in original) (quoting Johnson v. Commonwealth, 296 Va. 266, 274 (2018)). "[T]he trial court's 'findings of fact and judgment will not be reversed unless there is a clear showing of abuse of discretion.'" Heart v. Commonwealth, 75 Va.App. 453, 460 (2022) (quoting Green, 75 Va.App. at 76). "But 'an issue of statutory interpretation is a pure question of law which we review de novo.'" Id. (quoting Green, 75 Va.App. at 76).
"[W]hen construing a statute, our primary objective is 'to ascertain and give effect to legislative intent,' as expressed by the language used in the statute." Diaz-Urrutia v. Commonwealth, 77 Va.App. 182, 190 (2023) (quoting Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 425 (2012)). "When the language of a statute is unambiguous, we are bound by the plain meaning of that language." Heart, 75 Va.App. at 466 (quoting Cuccinelli, 283 Va. at 425).
As a threshold matter, the Commonwealth argues that Code § 19.2-306.1 did not apply to Sherman's revocation hearing because some of his violation conduct-specifically, his failure to notify his probation officer of his address change in November 2020...
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