Danny Angelo Massey v. Commonwealth of Virginia ( 2019 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Chafin and O’Brien
Argued at Williamsburg, Virginia
UNPUBLISHED
DANNY ANGELO MASSEY
MEMORANDUM OPINION* BY
v. Record No. 1670-17-1 JUDGE TERESA M. CHAFIN
MARCH 5, 2019
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Mary Jane Hall, Judge
J. Barry McCracken, Assistant Public Defender, for appellant.
Leah A. Darron, Senior Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
On September 22, 2017, the Circuit Court of the City of Norfolk determined that Danny
Angelo Massey violated the conditions of his probation by having contact with children and
revoked his previously suspended sentence on that basis. On appeal, Massey contends that the
circuit court erred by revoking his suspended sentence because his probation officer did not have
the authority to impose the probation condition that he allegedly violated. Upon review, we
conclude that Massey’s probation officer impermissibly imposed a probation condition that
contradicted an express term of probation previously imposed by the circuit court.1 As the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
In light of this determination, we do not address the additional arguments that Massey
presents on appeal. Specifically, we decline to address Massey’s argument that the probation
condition at issue was imposed “based on an ultra vires delegation of judicial discretion,” or his
argument that he did not violate the condition imposed by his probation officer. While we
acknowledge that Massey’s primary appellate argument focused on the delegation of authority to
his probation officer, “[t]he doctrine of judicial restraint dictates that we decide cases on the best
and narrowest grounds available.” Commonwealth v. White, 293 Va. 411, 419 (2017) (quoting
Commonwealth v. Swann, 290 Va. 194, 196 (2015)).
revocation of Massey’s suspended sentence was based on his alleged violation of the improper
probation condition, we reverse the circuit court’s decision to revoke Massey’s suspended
sentence.
I. BACKGROUND
Under standards analogous to those governing the appellate review of evidence presented
in criminal trials, we “view the evidence received at [probation revocation hearings] 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.” Henderson v. Commonwealth, 285
Va. 318, 329 (2013). So viewed, the evidence is as follows.
On December 7, 2015, Massey was convicted of taking indecent liberties with a child in
violation of Code § 18.2-370. The circuit court held a sentencing hearing regarding the
conviction on April 8, 2016, and entered an order memorializing its sentencing decision on April
11, 2016.2 The circuit court sentenced Massey to four years of incarceration for the offense and
suspended two years of the sentence, resulting in an active two-year term of incarceration. The
circuit court suspended the unserved portion of Massey’s sentence for six years and placed him
on supervised probation for three years upon his release from custody.
The circuit court expressly imposed several conditions of Massey’s probation. Among
other things, the circuit court prohibited Massey from having “any unsupervised contact with
minors including his grandchildren and other extended family members that are under the age of
[eighteen].” The circuit court then explained that any contact between Massey and children
“should be directly supervised by an adult who is aware of his conviction.” The circuit court
2
While Judge Mary Jane Hall presided over the revocation proceedings at issue in this
appeal, Judge John R. Doyle, III, presided over the sentencing hearing pertaining to Massey’s
2015 indecent liberties conviction.
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also ordered Massey to “comply with all the rules and requirements set by [his] Probation
Officer.”
Massey was placed on supervised probation on June 27, 2017, following his release from
incarceration. Theodore Harden, Massey’s probation officer, discussed the conditions of
Massey’s probation with him at that time. As Massey was a sex offender, Harden provided him
with twenty-six special sex offender instructions. One of these instructions stated “you will not
have any contact with anyone under the age of [eighteen]. Contact is defined as physical, verbal,
written or third party.” After discussing this instruction with Harden in more detail, Massey
indicated that he understood the conditions of his probation and signed a written version of the
conditions imposed by Harden.
As Harden was driving home from work on August 9, 2017, he saw Massey playing with
two children in a church parking lot. The children appeared to be less than ten years old.
Harden noted that an adult was “maybe five steps away” from Massey and the children. Based
on his observations, Harden took Massey into custody. He later filed a “Major Violation Report”
alleging that Massey violated the conditions of his probation by having contact with children.
Catherine Baldwin, a pastor of the church where Harden saw Massey playing with the
children, testified at Massey’s probation revocation hearing. Baldwin testified that she went to
the church with her two grandchildren on August 9, 2017. Baldwin explained that Massey was
staying at the church on that day because he was homeless and that he did not know that she and
her grandchildren would be there. Baldwin testified that Massey spoke to her when she was at
the church, and she implicitly acknowledged that he was in close physical proximity to her
grandchildren. Baldwin explained, however, that she was “always close by” when Massey was
around the children and that she never left them alone with him. Baldwin also testified that she
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knew that Massey was a “convicted sex offender” due to a prior conviction based on his
“inappropriate behavior . . . with a child.”
In his closing argument, Massey contended that Harden did not have the authority to
impose the probation condition prohibiting him from having any contact with minor children.
Citing several probation statutes, including Code § 19.2-304, Massey maintained that only the
circuit court had the “right to set the terms of probation” and the authority “to change and modify
probation” conditions. While Massey acknowledged that the circuit court previously ordered
him to comply with all of the rules set by his probation officer, he argued that his probation
officer could not impose a more restrictive probation condition “than what the court had already
specifically ordered.” Massey also argued that Harden “exceeded the court’s delegation . . . by
saying he [could have] no contact with children.”
Massey noted that the circuit court previously imposed a probation condition allowing
him to have contact with children under the supervision of an adult who knew about his prior
conviction and that the circuit court had not modified that condition. He then argued that his
conduct on August 9, 2017, complied with the condition set by the circuit court. Therefore,
Massey maintained that he had not violated the terms of his probation, and he requested the
circuit court to refrain from revoking his suspended sentence on that ground.
The circuit court disagreed with Massey’s argument, concluding that Massey’s prior
sentencing order required him to “first and foremost” follow the rules and requirements set by
his probation officer. As Harden told Massey that he could not have any contact with children,
the circuit court determined that Massey was bound by that condition. Notably, the circuit court
explained,
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I don’t think your probation officer could let you do something that
the court told you not to do, but I think the [converse]3 of that is
true. The probation officer can prohibit you from doing something
that the court didn’t say anything about and I think that’s where
this case falls.
Ultimately, the circuit court concluded that Massey violated the conditions of his
probation by having contact with children, revoked his suspended sentence, and resuspended “all
but time served for the violation.” The circuit court also “restore[d] the balance of [Massey’s]
unexpired probationary period.” This appeal followed.
II. ANALYSIS
On appeal, Massey contends that Harden did not have the authority to impose the
probation condition that he allegedly violated. Massey emphasizes that this probation condition
contradicted a specific condition previously imposed by the circuit court. While the circuit court
allowed Massey to have supervised contact with children, Harden prohibited Massey from
having any contact with them. Citing Code § 19.2-304, Massey argues that Harden could not set
the probation condition at issue “without judicial intervention.”
To the extent that Massey’s argument raises an issue of statutory interpretation, it
presents “a question of law reviewed de novo on appeal.” Grimes v. Commonwealth, 288 Va.
314, 318 (2014). Upon reviewing Massey’s argument under this legal standard, we agree that
Harden did not have the authority to impose the probation condition at issue. Harden could not
contradict or otherwise modify an express condition of probation imposed by the circuit court in
Massey’s April 11, 2016 sentencing order.
3
Although this term is transcribed as “congress” in the transcript of Massey’s revocation
hearing, the additional comments surrounding the term and the context of the overall discussion
imply that the circuit court judge likely said “converse” and that the transcription of the term as
“congress” was erroneous.
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In general, only courts can modify court orders, and then, they can only do so in limited
circumstances. Pursuant to Rule 1:1, “[a]ll final judgments, orders, and decrees, irrespective of
terms of court, shall remain under the control of the trial court and subject to be modified,
vacated, or suspended for twenty-one days after the date of entry, and no longer.” (Emphasis
added). Thus, in the absence of an exception to Rule 1:1, a court order may not be modified
more than twenty-one days after it has been entered.
Code § 19.2-304 provides an exception to Rule 1:1 that allows a court to modify a
probation condition set forth in an otherwise final court order. In pertinent part, Code § 19.2-304
states that “[t]he court . . . may revoke or modify any condition of probation, but only upon a
hearing after reasonable notice to both the defendant and the attorney for the Commonwealth.”
Code § 19.2-304 does not expressly allow a probation officer to modify a probation condition
contained in a court order. Rather, it only allows a “court” to modify a probation condition more
than twenty-one days after a final order has been entered, following both reasonable notice to the
parties and a hearing regarding the proposed modification. See Code § 19.2-304.
We acknowledge that Harden had some authority to define the conditions of Massey’s
probation pursuant to the April 11, 2016 sentencing order. In that order, the circuit court
expressly required Massey to “comply with all the rules and requirements set by [his] Probation
Officer.” (Emphasis added). Assuming without deciding that this delegation of authority was
permissible, we conclude that it did not allow Harden to modify the specific probation conditions
set forth in the April 11, 2016 sentencing order. Pursuant to Rule 1:1 and Code § 19.2-304, only
a court could modify the conditions expressly stated in that order.
While the circuit court correctly noted that Harden could prohibit Massey from doing
something that was not addressed in the April 11, 2016 sentencing order, the circuit court
incorrectly determined that the sentencing order failed to address Massey’s contact with children.
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In that order, the circuit court expressly allowed Massey to have contact with children under the
supervision of an adult who knew about his prior conviction. Despite this express term, Harden
prohibited Massey from having any contact with children. Harden did not have the authority to
modify the April 11, 2016 sentencing order by imposing this condition. As Harden unilaterally
imposed the condition without obtaining judicial approval or following the procedure provided in
Code § 19.2-304, the condition was ineffective. Thus, Massey remained subject to the probation
condition originally imposed by the circuit court in the April 11, 2016 sentencing order.
The circuit court’s decision to revoke Massey’s suspended sentence was based on his
alleged violation of the ineffective probation condition set by Harden. Specifically, the circuit
court concluded that Massey violated the conditions of his probation by having contact with
children. The evidence presented at Massey’s revocation hearing, however, failed to establish
that he violated the condition imposed by the circuit court in the April 11, 2016 sentencing order.
Although Massey had contact with children in the church parking lot on August 9, 2017, this
contact was supervised by an adult who was aware of Massey’s prior conviction. At the
revocation hearing, Harden candidly admitted that an adult was “five steps away” from Massey
and the children, and Baldwin testified that she never left the children alone with Massey.
We are mindful that “‘[t]he sufficiency of the evidence to sustain an order of revocation
is a matter within the sound discretion of the trial court’” and that “‘[i]ts findings of fact and
judgment thereon are reversible only upon a clear showing of abuse of discretion.’” Alsberry v.
Commonwealth, 39 Va. App. 314, 320 (2002) (quoting Hamilton v. Commonwealth, 217 Va.
325, 327 (1976)). Nevertheless, we conclude that the circuit court abused its discretion by
revoking Massey’s suspended sentence in this case. The circuit court based its decision on an
ineffective probation condition, and the evidence presented at the revocation hearing failed to
establish that Massey violated the binding term of his probation.
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III. CONCLUSION
In summary, we conclude that Harden did not have the authority to impose the probation
condition that Massey allegedly violated. Harden could not modify a specific probation
condition expressly set forth in the April 11, 2016 sentencing order without obtaining approval
from the circuit court pursuant to the requirements of Code § 19.2-304. As the probation
condition imposed by Harden that prohibited Massey from having any contact with children was
ineffective, the circuit court erred by revoking Massey’s suspended sentence based on his
violation of that condition. For these reasons, we reverse the circuit court’s decision and dismiss
the revocation proceeding.
Reversed and dismissed.
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