Washington v. Commonwealth

• Court: Virginia Court of Appeals
• Writing for the Court: MEMORANDUM OPINION BY JUDGE MARLA GRAFF DECKER
• Decision Date: 14 November 2017
• Docket Number: Record No. 0710-16-1
• Citation: Washington v. Commonwealth, Record No. 0710-16-1 (Va. App. Nov 14, 2017)
• Parties: CHARLES McKINLEY WASHINGTON v. COMMONWEALTH OF VIRGINIA

CHARLES McKINLEY WASHINGTON v. COMMONWEALTH OF VIRGINIA

Record No. 0710-16-1

COURT OF APPEALS OF VIRGINIA

NOVEMBER 14, 2017

UNPUBLISHED

Present: Chief Judge Huff, Judges Decker and AtLee

Argued at Chesapeake, Virginia

MEMORANDUM OPINION^* BY JUDGE MARLA GRAFF DECKER

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON

Wilford Taylor, Jr., Judge

Charles E. Haden for appellant.

Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Charles McKinley Washington appeals the circuit court's decision revoking his suspended sentence for a 1998 conviction of possessing cocaine. On appeal, he contends that the court violated his due process rights under the Fourteenth Amendment of the United States Constitution by revoking his suspended sentence without considering evidence of the reasons for his termination from the drug treatment court program. We hold that the appellant received his due process rights to notice and a hearing in the circuit court revocation proceeding regarding his termination from the drug treatment court program. Additionally, to the extent that the appellant may have been able to assert an entitlement to more "process" in the circuit court, he failed to make a contemporaneous objection that the level of process he received in the circuit court was insufficient. Accordingly, we affirm the revocation of the suspension of the appellant's remaining two-year sentence.

I. BACKGROUND

A. Plea Agreement and Drug Court Termination Proceedings

In 2012, following a 1998 conviction for cocaine possession and a related revocation proceeding, the appellant was arrested for failing to comply with the conditions of his suspended sentence. As a result, he entered into a plea agreement with the Commonwealth. The agreement provided that if he successfully completed the drug treatment court program, the Commonwealth would recommend that the circuit court resuspend the remaining two years of the appellant's sentence. It also provided that failure to complete the program would result in imposition of the sentence. The circuit court accepted the agreement after reviewing its terms with the appellant.

On September 9, 2015, the appellant was arrested on a warrant charging him with violating his probation by using drugs. On September 15, 2015, he appeared in the drug court with his attorney, Michele Cavanaugh. In a brief proceeding, a representative from the Community Services Board informed the court that the appellant had tested positive for marijuana use. The appellant did not seek to cross-examine the representative, offer any evidence, or object to the proceeding. The judge scheduled a revocation hearing and entered an order terminating the appellant from "further participation" in the drug court program based on his noncompliance with its terms and conditions.

B. Revocation Proceedings in the Circuit Court

1. Evidentiary Hearing

On December 16, 2015, the circuit court held a revocation hearing. The appellant appeared with retained attorney Jason Atkins. The prosecutor stated that the parties were present "for a sentencing" and asked the court to impose the two-year sentence in the plea agreement based on the appellant's termination from the drug court program. The judge reviewed the drugcourt order from the September 15, 2015 hearing and confirmed that "the evidence" regarding termination from the drug court "has already been determined" by the drug court judge.

The judge stated that the matter "comes on today for a revocation[,] . . . for a sentencing." He acknowledged that a presentence report was required but noted, based on the plea agreement, that the sentence would be "two years regardless of what happens." The appellant's attorney waived a presentence report and stated, "[I]t would be our position to argue the two years this morning." The judge found the evidence sufficient to prove a violation of the condition of the appellant's suspended sentence. The appellant did not offer any evidence on the circumstances of his termination from the drug court during that stage of the proceeding.

The judge then heard arguments on sentencing. The prosecutor argued that the court should impose the two years per the plea agreement based on the appellant's repeated failure to comply with the drug court program's requirements.

The appellant testified in his own behalf, stating that during his three years in the drug court program, he consistently paid his fines pursuant to his payment plan, but he admitted that he had an ongoing problem with drugs and alcohol. He claimed that he was not told why he was terminated from drug court; did not receive a formal termination hearing; and was never allowed to view any of the evidence supporting his termination despite requesting discovery and filing a motion to compel.

On cross-examination, the appellant admitted that he tested positive for drug use on five occasions and was repeatedly sanctioned with jail time, some of which included substance abuse treatment. He also admitted that he was discharged from the drug court program after his fifth positive drug test. He acknowledged that prior to his discharge from the program, he received written notice indicating that the Commonwealth sought to revoke his suspended sentence for "using drugs."

The appellant's counsel argued that the appellant was entitled under the Fourteenth Amendment to "a formal hearing" addressing the "actual reasons" for his removal from drug court and "any evidence as to what happened." The prosecutor responded that the appellant "had all of this opportunity with his other lawyer" in a hearing in the drug court but "didn't ask for these things." She also argued that the appellant had just admitted on cross-examination that he understood that he had been noncompliant with the drug court's requirements "at least five different times" and "had to go to jail" as a result. She represented that the appellant could have been "kicked . . . out after the second time . . . but they gave him five opportunities, and he just was not compliant."

The judge found that the evidence was sufficient to prove that the appellant had failed to comply with "the terms of the drug court program." He continued the matter for sentencing and ordered a presentence report.

2. Sentencing Hearing

On April 8, 2016, the appellant appeared with his attorney "for sentencing" on the revocation. The prosecutor summarized the prior testimony, including the appellant's admission to having been sanctioned several times in the drug treatment court program. He also noted that the probation officer was present and would testify that the appellant continued using drugs while participating in the program.

The appellant testified and admitted to "refus[ing] to participate . . . in preparation of the presentence report," explaining that he "felt like . . . [it] wasn't called for" and "was incriminating." He continued to argue that his right to due process was violated, alleging that he filed motions requesting the evidence used against him in the revocation proceeding but never received it. The appellant suggested that he was entitled to have "this . . . vacated and dismissed" as a result. He pointed to the things that he was doing right, including maintainingemployment and paying child support, and asked that he be permitted to participate in drug counseling in lieu of serving the two years.

The prosecutor argued for imposition of the two-year sentence set out in the plea agreement based on the appellant's noncompliance with the requirements of the drug treatment court program. He observed that the appellant had ample opportunity to "explain himself" in both the drug court and the revocation court. He concluded by arguing that no reason existed for the court to do anything but enforce the plea agreement.

After hearing the parties' arguments, the circuit court imposed the two-year suspended sentence in accordance with the plea agreement. The judge noted that the appellant received a drug court termination hearing in September 2015 at which he was represented by counsel. The judge further concluded that the September hearing complied with due process and that the appellant knew what he was doing when he signed the plea agreement requiring him to serve two years of incarceration if he did not complete the drug court program. Although "acknowledg[ing] that [the appellant] made progress" in the program, the judge emphasized that he did not complete it as required by the agreement.

II. ANALYSIS

The appellant contends that the circuit court failed to consider evidence of the reasons for his termination from the drug court program in deciding whether to impose the sentence contained in the plea agreement. He alleges that this failure deprived him of notice and an opportunity to be heard in violation of his "conditional liberty interest and right to due process under the Fourteenth Amendment."

A. Standard of Review and Relevant Statutory Framework

This appeal involves issues of constitutional and statutory interpretation, which are reviewed de novo. See, e.g., Wallace v. Commonwealth, 65 Va. App. 80, 88, 774 S.E.2d 482,486 (2015), aff'd, 798 S.E.2d 595 (Va. 2016). To the extent that the analysis involves the facts surrounding the revocation, the appellate court considers the evidence in the light most favorable to the Commonwealth, the party who prevailed below. Jacobs v. Commonwealth, 61 Va. App. 529, 535, 738 S.E.2d 519, 522 (2013). The circuit court's ruling in a revocation proceeding "will not be reversed [on appeal absent] a clear showing of abuse of discretion." Id. at 535, 738 S.E.2d at 521-22 (quoting Davis v. Commonwealth, 12 Va. App. 81, 86, 402 S.E.2d 684, 687 (1991)).

Code § 19.2-303 permits a circuit court to suspend the imposition or execution of a sentence, in whole or in part. Under Code § 19.2-306, a court may exercise its discretion to revoke a suspended sentence for a failure to comply with the conditions of the...