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Jeffrey Alan Hurly, s/k/a Jefferey Allen Hurley v. Commonwealth of Virginia ( 2013 )


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  •                                               COURT OF APPEALS OF VIRGINIA
    Present: Judges Alston, McCullough and Senior Judge Clements
    UNPUBLISHED
    Argued at Chesapeake, Virginia
    JEFFREY ALAN HURLY, S/K/A
    JEFFEREY ALLEN HURLEY
    MEMORANDUM OPINION* BY
    v.      Record No. 1160-12-1                                 JUDGE JEAN HARRISON CLEMENTS
    OCTOBER 1, 2013
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
    Norman A. Thomas, Judge
    John E. Robins, Jr., for appellant.
    Robert H. Anderson, III, Senior Assistant Attorney General
    (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
    On January 27, 2010, the trial court entered an order finding Jeffrey Alan Hurly (appellant)
    in violation of his probation. The trial court revoked appellant’s previously suspended sentence of
    seven years and five months and resuspended three years of the sentence. The trial court ordered
    appellant to serve the remainder of his suspended sentence as well as any unserved portion of his
    active sentence from the underlying convictions. On appeal of this decision,1 appellant contends the
    trial court erred in “failing to allow appellant to withdraw the guilty plea entered for him by his
    *
    Pursuant to Code § 17.1-413, this opinion is not designated for publication.
    1
    Appellant’s initial appeal from the trial court’s decision was denied because he failed to
    file transcripts indispensable to review of the assignments of error raised on appeal. Hurly v.
    Commonwealth, Record No. 1212-10-1 (Va. Ct. App. Jan. 28 and May 9, 2011). The Supreme
    Court of Virginia refused appellant’s petition for appeal. Hurley v. Commonwealth, Record
    No. 111063 (Va. Sept. 30, 2011). On June 1, 2012, this Court granted appellant’s motion,
    pursuant to Code § 19.2-321.1, for leave to pursue a delayed appeal. The present appeal
    followed. Through the course of the appellate process, appellant’s last name has been spelled
    both “Hurly” and “Hurley,” and his first name has appeared as “Jeffrey” and “Jefferey.”
    attorney to violating the terms of his probation.” We find no error and affirm the trial court’s
    decision.
    BACKGROUND
    As the parties are fully conversant with the record in this case, and because this
    memorandum opinion carries no precedential value, this opinion recites only those facts and
    incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this
    appeal.
    By order entered on July 15, 2009, appellant was sentenced to nine years with seven years
    and five months suspended upon convictions of eluding the police, child neglect, and failing to
    appear in court. Appellant was to serve his active sentence on home electronic monitoring. He was
    also ordered to complete five years of probation.2
    In a letter dated November 24, 2009, the Norfolk Sheriff’s Office notified the trial court that
    appellant had absconded from home incarceration and fled to Florida, where he was apprehended.
    The trial court issued a capias for appellant’s arrest for violating probation.3
    2
    The trial court entered an order on January 12, 2012, nunc pro tunc to July 15, 2009,
    amending the 2009 order to state: “Supervised probation: The defendant is placed on
    indeterminate supervised probation not to exceed a period of five years to commence on his
    release from incarceration. The Defendant shall comply with all the rules and requirements set
    by the Probation Officer.” All other provisions of the 2009 order were to remain intact.
    3
    We note that at the time he absconded and fled to Florida, appellant was serving the
    active portion of his sentence, and had not been admitted to probation. Appellant has raised no
    issue on appeal regarding whether the trial court erred in finding appellant in violation of
    probation and revoking a portion of his suspended sentence for misconduct that occurred while
    he was serving the active portion of his sentence. But see Collins v. Commonwealth, 
    269 Va. 141
    , 146, 
    607 S.E.2d 719
    , 721 (2005) (holding that “the condition of good behavior is implicit in
    every order suspending sentence,” and that implicit condition attaches “from the moment
    following [the] pronouncement” of a suspended sentence); Hodgins v. Commonwealth, 
    61 Va. App. 102
    , 110-11, 
    733 S.E.2d 678
    , 682 (2012) (finding Code § 19.2-306 authorized the trial
    court to revoke suspended sentence for conduct that occurred while defendant was serving active
    sentence on work release).
    -2-
    At the beginning of the revocation hearing on January 22, 2010, the clerk asked how
    appellant was “pleading to the violation.” Appellant’s attorney answered, “He would stipulate he is
    in violation[.]” The Commonwealth introduced the sheriff’s letter of November 24, 2009. The
    Commonwealth also introduced the testimony of witnesses that appellant had obtained thousands of
    dollars from his elderly grandmother, with whom he had been assigned to live during his home
    incarceration. A representative of the Norfolk Sheriff’s Office testified that appellant escaped from
    home incarceration on October 23, 2009, and the office had expended considerable resources
    locating him and returning him to Virginia. His whereabouts in Florida were discovered after he
    was arrested for shoplifting there. In addition, appellant had been charged in Virginia with the
    misdemeanor of violating home electronic monitoring.4
    Testifying in his own behalf, appellant admitted that he deliberately violated his home
    monitoring and left the state. He said he had been mistaken in thinking that his actions would
    constitute a separate offense, but could not serve as the basis for revocation of his suspended
    sentence because the probation period had not yet started. He claimed he intended to repay his
    grandmother $60,000, which she had loaned him.
    At the conclusion of the hearing, the trial court found appellant in violation, revoked his
    suspended sentence, and resuspended three years. The trial court scheduled a hearing for February
    24, 2010 to determine the amount of restitution to be imposed upon appellant for the expenses
    incurred by the sheriff’s office in locating him and returning him to Virginia.
    As the February 24, 2010 hearing began, the trial court, the prosecutor, and appellant’s
    recently appointed lawyer agreed that the sole purpose of the hearing was to determine the amount
    4
    The record reflects that appellant was convicted in general district court of violating
    home incarceration, he appealed that conviction to the trial court, but that he withdrew his
    appeal.
    -3-
    of restitution.5 The Commonwealth introduced evidence detailing the amount of restitution due the
    Norfolk Sheriff’s Office and the City of Norfolk. During his testimony, appellant asked to be
    permitted to withdraw the guilty plea his former attorney entered on his behalf. He said he had filed
    a pro se motion to that effect. The trial court stated that the only matter properly before it was the
    determination of restitution. It found that the January 27, 2010 order finding appellant in violation
    had become final, and refused to consider appellant’s oral motion to withdraw his guilty plea. The
    trial court entered an order determining restitution.
    ANALYSIS
    Appellant contends on appeal that counsel’s stipulation that the evidence was sufficient to
    prove he was in violation of his suspended sentence was the “functional equivalent of a guilty plea.”
    After he assumes this to be true, he then claims that his right to due process was violated because
    the trial court did not ascertain from appellant that he was entering a guilty plea knowingly and
    intelligently. According to appellant, the entry of the guilty plea resulted in manifest injustice
    because he could not thereafter contest the fact of the violation, and he should have been allowed to
    withdraw the guilty plea.
    We disagree with appellant’s underlying premise that he entered a guilty plea to a probation
    violation. Neither appellant nor his attorney stated at the revocation hearing that he was “pleading
    guilty.” The law is well settled that a guilty plea is “‘in reality, a self-supplied conviction
    authorizing imposition of the punishment fixed by law.’” Jewel v. Commonwealth, 
    260 Va. 430
    ,
    432, 
    536 S.E.2d 905
    , 906 (2000) (quoting Peyton v. King, 
    210 Va. 194
    , 196, 
    169 S.E.2d 569
    , 571
    (1969)). While a revocation proceeding is a part of the “criminal process,” Green v.
    Commonwealth, 
    263 Va. 191
    , 194, 
    557 S.E.2d 230
    , 232 (2002), “[b]oth the United States
    5
    On February 22, 2010 the attorney who represented appellant at the revocation hearing
    was permitted to withdraw, and another attorney was appointed to represent appellant in the
    matter.
    -4-
    Supreme Court and this Court have previously indicated . . . revocation hearings are not a stage
    of criminal prosecution . . . ,” Davis v. Commonwealth, 
    12 Va. App. 81
    , 84, 
    402 S.E.2d 684
    , 686
    (1991) (citing Gagnon v. Scarpelli, 
    411 U.S. 778
    , 782 (1973)). A revocation proceeding
    “occur[s] after a criminal prosecution has ended in a conviction,” Henderson v. Commonwealth,
    
    285 Va. 318
    , 325, 
    736 S.E.2d 901
    , 905 (2013), but does not itself result in a criminal conviction.
    “A trial court has broad discretion to revoke a suspended sentence and probation based on
    Code § 19.2-306, which allows a court to do so ‘for any cause deemed by it sufficient.’” Davis, 12
    Va. App. at 86, 402 S.E.2d at 687. At the beginning of the revocation hearing, defense counsel
    stipulated that appellant’s conduct violated the terms under which he was sentenced in 2009.
    Notwithstanding the stipulation, the Commonwealth presented evidence that appellant had failed
    to remain of good conduct since his sentencing in 2009. Though he attempted to explain or
    justify his actions, appellant admitted to the trial court that he had removed his monitoring device
    and escaped from his active incarceration. Exercising its authority under Code § 19.2-306, the
    trial court concluded appellant was in violation and ordered him to serve a portion of his
    previously suspended sentence. Appellant has not argued on appeal that the trial court abused its
    discretion in finding appellant in violation.
    CONCLUSION
    Because appellant did not enter a guilty plea, we find no merit to appellant’s argument
    that the trial court erred in not permitting him to withdraw such a plea.6 Accordingly, we affirm
    the trial court’s decision.
    Affirmed.
    6
    In light of this conclusion, we do not consider the Commonwealth’s arguments that the
    “law of the case” doctrine and principles of res judicata bar consideration of the claim on appeal.
    -5-
    

Document Info

Docket Number: 1160121

Filed Date: 10/1/2013

Precedential Status: Non-Precedential

Modified Date: 10/31/2014