Shifflett v. Commonwealth

• Docket Number: Record No. 0675-22-2
• Decision Date: 16 July 2024
• Citation: 81 Va. App. 277,903 S.E.2d 545
• Parties: Steve Wayne SHIFFLETT v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

81 Va. App. 277

903 S.E.2d 545

Steve Wayne SHIFFLETT

v.COMMONWEALTH of Virginia

Record No. 0675-22-2

Court of Appeals of Virginia, Richmond.

July 16, 2024

UPON A REHEARING EN BANC, FROM THE CIRCUIT COURT OF BUCKINGHAM COUNTY, J. Leyburn Mosby, Jr., Judge Designate

Kevin E. Calhoun(Charles C. Cosby, Jr., on brief), Richmond, for appellant.

Matthew J. Beyrau, Assistant Attorney General(Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Beales, Huff, O’Brien, Malveaux, Athey, Fulton, Ortiz, Causey, Friedman, Chaney, Raphael, Lorish, Callins and White

OPINION BY JUDGE DANIEL E. ORTIZ

Circuit court judges must rely upon probation officers to supervise the administration and logistics of conditions of probation articulated at sentencing as "special conditions."This delegation of authority does not convert the failure to follow instructions associated with such special conditions into technical violations.Code§ 19.2-306.1 limits the ability of a circuit court to impose active incarceration for "technical violations" of probation and does not limit the amount of active incarceration for violations of non-technical special conditions.The failure to complete court-ordered sex offender counseling and community service does not match conduct listed in Code§ 19.2-306.1(A), and such violations are non-technical in nature.Therefore, the circuit court did not err when it deemed that Steve Wayne Shifflett’s failure to complete sex offender counseling and 200 hours of community service was a violation of a non-technical special condition of probation and imposed an active sentence in excess of fourteen days.(R. 141-42; 181).We, thus affirm the circuit court’s judgment.

BACKGROUND

On October 7, 2020, Steve Wayne Shifflett pleaded guilty, pursuant to an Alford plea agreement,¹ to aggravated sexual battery in violation of Code§ 18.2-67.3.Per the terms of the plea agreement, the circuit court sentenced him to twenty years’ incarceration.The court suspended the sentence conditioned on Shifflett’s successful completion of two years’ supervised probation.The court imposed several conditions on Shifflett’s suspended sentence, including ordering Shifflett to "comply with a plan of 200 hours of community service coordinated through adult probation that shall all be completed by October 7, 2021."The supervised probation section("supervised probation condition") of his sentence also included several conditions.The supervised probation condition stated in full:

(X) Supervised Probation: The defendant shall be placed on supervised probation under the supervision of the Office of Department of Probation and Parole serving this Court(District 24 Probation and Parole) for a period commencing upon sentencing for Two (2) Years in which case the defendant shall report to probation within 48 hours from this sentencing date in order to schedule an intake appointment, and follow all the rules and regulations of probation, unless sooner released by court.(X)The defendant shall comply with all the rules and requirements set by the Probation Officer.(X)The defendant shall successfully complete any screening, assessment, testing, treatment and/or education as directed by the probation officer.(X)The defendant shall pay any fees and costs required by the probation officer.Failure to adhere to conditions of probation could result in a show cause and/or capias against the defendant.

Relevant to this discussion, the condition specifically required Shifflett to "successfully complete any screening, assessment, testing, treatment and/or education as directed by the probation officer."(Emphasis added).In addition, the circuit court separately ordered Shifflett to enroll in counseling ("counseling condition"), stating in full:

(X) Counseling: The defendant shall immediately enroll in counseling after this sentencing date with a licensed sex offender provider/counselor, relating to his sexual conduct and matters associated therewith.

On October 9, 2020, Shifflett began supervised probation and agreed to the general terms of probation, which included Condition 6—requiring him to follow his probation officer’s instructions and be "truthful [and] cooperative."Additionally, Shifflett signed "[s]ex [o]ffender [s]pecial [i]nstructions" that required him to "[a]ttend and successfully complete a [s]ex [o]ffender [t]reatment [p]rogram approved by [his] supervising officer."

On November 30, 2021, Shifflett’s probation officer, Rebecca Moss, issued a major violation report reporting that he had violated Condition 6 by being "rude" and uncooperative during office appointments in November 2020 and April 2021.Shifflett also began sex offender counseling through the Probation and Parole Office in December 2020, but he was "unsuccessfully discharged" about a year later due to his "lack of progress and therapy[-]interfering behavior," including Shifflett’s refusal to accept "accountability" for his offense.

Moss further reported that she had instructed Shifflett to "secure a community service site" and obtain her approval of the site before starting his service.She had authorized Shifflett to perform community service at a fire department, where he completed 44 hours of community service by July 3, 2021.Shifflett also completed 161 hours of community service at a church in February 2021, but Moss "could not accept" those hours because Shifflett did not get her permission prior to performing those hours at the church.Moss discussed Shifflett’s community service with Fire Chief Marcus, who supervised the 44 hours of approved community service Shifflett performed at the fire station.Chief Marcus confirmed that Shifflett had performed an additional 161 hours at a local church at his direction but did not provide the name of the church.Accordingly, Moss reported that Shifflett had "failed to complete his 200 hours of community service" by October 7, 2021.The circuit court issued a capias for the violation on December 7, 2021; Shifflett was arrested on December 18, 2021.

[1, 2] At the revocation hearing, the parties consented to apply recently amended and reenacted Code§ 19.2-306(C) and newly enacted Code§ 19.2-306.1 to the proceedings.²Shifflett conceded that he had violated the terms of his probation as Moss had reported but argued that the circuit court could not impose an active sentence.³He maintained that his violations were "technical violations" under Code§ 19.2-306.1(A) and the circuit court could not impose active incarceration for a "first technical violation" under Code§ 19.2-306.1(C).The Commonwealth countered that Shifflett’s failure to complete sex offender treatment and 200 hours of community service at an approved location were "special condition" violations, allowing the circuit court to revoke Shifflett’s entire sentence.

The circuit court found that Shifflett had failed "to follow special conditions/instructions … to complete 200 hours of community service and complete sex offender treatment."The court emphasized that Shifflett was "disruptive with the probation officer" and "failed to follow his probation officer’s regulations and instructions."Additionally, the court found that Shifflett’s failure to complete community service hours at an approved location was the "minor part of [the] violation"⁴ and the "major part" was Shifflett’s "attitude" and failure to "cooperate] with [his] probation officer," Accordingly, the court revoked ten years of Shifflett’s previously suspended sentence and resuspended nine years and nine months—with a total active sentence of three months incarceration.Shifflett appealed.

A panel of this Court, one judge dissenting, found that both the community service and sex offender counseling violations were technical in nature as they were failures to "follow the instructions of the probation officer" under Code§ 19.2-306.1(A)(v).Consequently, the panel reversed the circuit court’s judgment and remanded the matter for further proceedings for new sentencing.

We granted the Commonwealth’s petition for en banc review, staying the panel's decision pending review by the full Court.We now vacate the panel’s decision, which found the two violations at issue to be technical, and instead find them both to be non-technical "special condition" violations.

ANALYSIS

The only issue before this Court is whether Shifflett’s probation violations were technical or non-technical under Code§ 19.2-306.1(A).Shifflett’s right to challenge the sufficiency of the evidence, however, is waived as he pleaded guilty under an Alford plea.SeePerry v. Commonwealth,33 Va. App. 410, 413, 533 S.E.2d 651(2000)(holding that by freely and intelligently entering an Alford plea, an appellant waives his right to appeal the issue of "whether the evidence was sufficient to prove beyond a reasonable doubt that he was guilty of that charge").This opinion does not foreclose or impinge on any potential arguments made by probationers as to the vagueness or reasonableness of the instructions, nor does it address any due process claim.Regardless, these arguments were not presented by Shifflett, and he is barred from raising them as he entered an Alford plea.

[3–6]"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, 873 S.E.2d 96(2022)(alterations in original)(quotingJohnson v. Commonwealth, 296 Va. 266, 274, 819 S.E.2d 425(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, 877 S.E.2d 522(2022)(quotingGreen,75 Va. App. at 76, 873 S.E.2d 96)."Whether to revoke a suspended sentence ‘lies in the discretion of the trial court’...