Andre Cordell Mason, Jr. v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges McCullough, Chafin and Russell
UNPUBLISHED
Argued at Richmond, Virginia
ANDRE CORDELL MASON, JR.
MEMORANDUM OPINION* BY
v. Record No. 0312-15-2 JUDGE WESLEY G. RUSSELL, JR.
DECEMBER 29, 2015
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
Nathan C. Lee, Judge
James T. Maloney (Joseph D. Morrissey; James T. Maloney, PC;
Morrissey & Goldman, LLC, on brief), for appellant.
Aaron J. Campbell, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Andre Cordell Mason, Jr., appellant, appeals the revocation of his suspended sentence
stemming from his conviction on two counts of distributing cocaine. On appeal, appellant contends
that the circuit court erred in allowing the Commonwealth to present evidence during the revocation
hearing regarding allegations for which he had not received written notice. For the reasons that
follow, we agree with appellant. Accordingly, we reverse the decision of the circuit court and
remand the case for further proceedings if the Commonwealth be so advised.
BACKGROUND
Appellant was convicted on October 27, 2010, of two counts of distribution of cocaine and
received a total sentence of ten years incarceration with eight years and eleven months suspended,
subject to conditions. After serving the initial term of confinement, appellant was released on
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
probation. On May 23, 2014, a probation officer wrote a letter to the Hopewell Commonwealth’s
Attorney regarding appellant’s probationary status:
A Record Check investigation conducted reveals
[appellant] was convicted on January 10, 2013 in Prince George
County Circuit Court for Possession of Cocaine. He received ten
(10) years with nine (9) years suspended for ten (10) years of good
behavior. [Appellant] was placed on supervised [probation] to
begin after his release from incarceration.
It is noted a detainer was placed on [appellant’s] release as
he has pending charges for 1st Degree Murder, Malicious
Wounding, Non-violent Felon Possession of Gun within 10 years
of Offense and two counts of Use Firearm in Felony 1st Offense in
Hopewell Circuit Court. The offense date for these charges is
December 3, 2012.
Based on this letter, the Commonwealth’s Attorney requested the circuit court to issue a
capias for appellant and to conduct a revocation hearing. The letter from the probation officer
was attached to the request.1 The circuit court ordered the issuance of a capias, directing
appellant to “show cause if any he can why he has failed to comply with the term and conditions
of his suspended sentence.”
On January 21, 2015, the circuit court held a hearing to determine whether appellant had
violated the terms of his suspended sentence. As a preliminary matter, appellant objected to the
Commonwealth presenting any evidence of the details of appellant’s pending charges in Hopewell.2
While appellant agreed that the factual content of the probation violation letter was accurate and that
the charges were pending, he argued that the letter provided no details of the conduct underlying the
charges, and therefore, appellant did not receive proper notice of the allegations against him. As a
1
It is undisputed that appellant received a copy of the probation officer’s letter well in
advance of the revocation proceeding.
2
At the time of the hearing, the Hopewell charges had resulted in two mistrials and a
retrial was pending. In addition to the objection regarding an alleged lack of notice, appellant
also argued that the circuit court should “await a [final] disposition on [the Hopewell charges]
before going forward” with the Hopewell charges as a basis for revoking appellant’s probation.
-2-
result, he argued, the Commonwealth should be prevented from presenting the specific bad acts
establishing the basis of the new charges.3
In addition, the Commonwealth introduced copies of appellant’s arrest warrants from
Petersburg for offenses allegedly occurring on January 10, 2013. Specifically, the Commonwealth
introduced arrest warrants charging appellant with felony eluding and attempted capital murder.
The prosecutor stated his intent to introduce testimony from a detective and video evidence
regarding the incidents giving rise to the warrants.4
Appellant objected, arguing that neither the warrants nor any behavior giving rise to the
warrants were mentioned in the notice of violation letter. Specifically, he argued that the Petersburg
charges were “not mentioned at all in the probation letter. . . . [The letter references] the conviction
in Prince George and . . . the pending charges in Hopewell.” Appellant contended this lack of
written notice of the Petersburg charges violated his due process rights and that he was not prepared
to address the Petersburg allegations that day.
The Commonwealth responded by stating that it “[d]oesn’t matter whether it was mentioned
in that letter. That letter is not the totality of bad behavior the Commonwealth is about to
produce to the Court.” The Commonwealth also argued that appellant suffered no prejudice
from a lack of written notice because appellant’s counsel in the revocation proceeding was also
3
Appellant did not object to the Commonwealth introducing a copy of his conviction
order from Prince George Circuit Court for possession of cocaine. Although the trial was held
on January 10, 2013, the court entered its written order on January 28, 2013, and therefore, the
transcript refers to Exhibit One as the January 28, 2013 conviction.
4
The charges in Petersburg had been nolle prosequied prior to the revocation hearing.
-3-
his counsel on the Petersburg charges5 and that the Commonwealth previously had raised the
possibility that the Petersburg charges would be utilized during the revocation proceeding in a
conversation with appellant’s counsel.
Having heard the arguments of the parties, the circuit court allowed the Commonwealth to
proceed on the allegations related to the Prince George conviction, the Hopewell charges, and the
Petersburg charges. The circuit court noted appellant’s exception to the ruling. Although the circuit
court never offered to continue the matter, it did state that “we’re going to proceed and I guess if I
get to the end and you convince me you need additional time to respond to some of this, I can
consider that.” Appellant never requested a continuance.
During the presentation of the evidence, the Commonwealth called two inmates from
Riverside Regional Jail. Each witness testified that, while incarcerated, appellant admitted to
committing the murder that was the basis for the Hopewell charges. The Commonwealth also
called Detective B.W. Chester, who had investigated a shooting that occurred in Petersburg on
January 10, 2013. Detective Chester testified regarding appellant’s involvement in that incident and
that appellant eventually was charged with attempted capital murder, use of a firearm, and felony
eluding as a result of the investigation.
At the close of the hearing, the court found appellant violated the terms and conditions of his
suspended sentence and imposed the eight years and eleven months that previously had been
suspended. In doing so, the circuit court detailed what it deemed a pattern of “violence” since the
original convictions, making specific reference to the Hopewell and Petersburg charges.
5
The Commonwealth recognized at oral argument that the fact that appellant’s counsel
for the revocation proceeding was the same as his counsel for the Petersburg charges did not
mean that appellant was not prejudiced by the lack of notice. The Commonwealth correctly
conceded that, despite a general familiarity with all of his cases, an attorney is likely better
prepared to argue those cases for which he has received notice that the case will, in fact, be
argued on that day.
-4-
ANALYSIS
“When coupled with a suspended sentence, probation represents ‘an act of grace on the
part of the Commonwealth to one who has been convicted and sentenced to a term of
confinement.’” Price v. Commonwealth, 51 Va. App. 443, 448, 658 S.E.2d 700, 703 (2008)
(quoting Pierce v. Commonwealth, 48 Va. App. 660, 667, 633 S.E.2d 755, 758 (2006)). Because
a probationer already has been convicted, a revocation proceeding “is not part of a criminal
prosecution and thus the full panoply of rights due a defendant in such a proceeding does not
apply . . . .” Morrissey v. Brewer, 408 U.S. 471, 481 (1971) (referencing parole proceedings); see
also Gagnon v. Scarpelli, 411 U.S. 778, 782 (1972) (holding that “[p]robation revocation, like
parole revocation is not a stage of a criminal prosecution”).
Although a probationer is not entitled to all of the protections afforded criminal defendants,
due process requires that certain protections be provided. Relevant here, the Virginia Supreme
Court has recognized that due process requires that the subjects of revocation proceedings be
provided (among other things) “written notice of the claimed violations of [probation] . . . .”
Henderson v. Commonwealth, 285 Va. 318, 326, 736 S.E.2d 901, 905 (2013) (emphasis added)
(quoting Morrissey, 408 U.S. at 489).
Appellant argues that the circuit court neither should have admitted evidence regarding nor
considered the Hopewell and Petersburg charges/incidents at the revocation proceeding. Normally,
‘“the determination of the admissibility of relevant evidence is within the sound discretion of the
trial court subject to the test of abuse of that discretion.’” Holloman v. Commonwealth, 65
Va. App. 147, 168, 775 S.E.2d 434, 445 (2015) (quoting Beck v. Commonwealth, 253 Va. 373,
384-85, 484 S.E.2d 898, 905 (1997)). Here, however, appellant contends that the admission of
evidence regarding the Hopewell and Petersburg charges/incidents constituted a denial of due
process. “The application of the abuse of discretion standard of review is inappropriate when
-5-
considering [a] due process issue.” Henderson, 285 Va. at 329, 736 S.E.2d at 907. “[W]hether a
defendant’s due process rights are violated by the admission of evidence is a question of law, to
which we apply a de novo standard of review.” Id.
Sufficiency of the Notice
Appellant argues that he did not receive constitutionally sufficient notice regarding either
the Hopewell or Petersburg charges/incidents. We review each in turn.
With respect to the Hopewell charges/incident, appellant concedes the charges are
referenced in the written notice that he received. He argues that, without an express statement that
the Hopewell incident would be a part of the revocation proceeding, the notice’s reference to the
existence of a detainer on those charges was insufficient to place him on notice that the incident in
Hopewell would be raised at the revocation proceeding. We disagree.
Although due process requires that written notice be provided in post-conviction
proceedings, such notice is not to be equated with the notice requirements of a formal charging
document in a criminal proceeding. See Hines v. State, 358 So. 2d 183, 185 (Fla. 1978) (The
written notice in revocation proceedings “need not be set forth with the specificity required in
criminal indictments and informations. The primary goal is notice comporting with minimal due
process rights.”). Rather, the due process protection is based primarily on concerns that the
administrative proceeding be conducted with basic fairness to the parolee or probationer.
Copeland v. Commonwealth, 14 Va. App. 754, 756, 419 S.E.2d 294, 295-96 (1992) (citing
Howie v. Commonwealth, 222 Va. 625, 283 S.E.2d 197 (1981)) (finding that due process
requirements for notice in post-conviction proceedings were satisfied by substantial compliance);
Logan v. Commonwealth, 50 Va. App. 518, 525-26, 651 S.E.2d 403, 406 (2007), rev’d on other
grounds, 276 Va. 533, 666 S.E.2d 346 (2008).
-6-
Here, by way of the circuit court’s capias order, appellant had written notice that the
Commonwealth had initiated a revocation proceeding based on his alleged failure “to comply
with the term[s] and conditions of his suspended sentence.” Furthermore, from his receipt of the
probation officer’s letter that was the genesis of the proceeding, appellant knew that the
document initiating the revocation proceeding referenced both the Prince George conviction and
the circumstances leading to the Hopewell charges, either of which, if true, constituted violations
of the conditions of his suspended sentence. Although the better practice would have been for
the Commonwealth to provide expressly in the written notice that it intended to seek revocation
based on both the Prince George conviction and the incident in Hopewell, we find that,
considering all of the circumstances, appellant received sufficient notice regarding the Hopewell
charges/incident to satisfy the requirements of due process.
The Petersburg charges/incident, however, are a different matter. None of the writings
provided to appellant referenced, in any way, the Petersburg charges. Confined to the writings
provided, no one would have anticipated that the Commonwealth would seek to admit evidence
about the events in Petersburg. At oral argument, the Commonwealth conceded this point,
stating that the notice regarding the Petersburg charges/incident was “probably inadequate.”
Although we are not bound by this concession,6 we concur that the complete absence of any
written notice even suggesting that the Petersburg incident might be raised at the revocation
proceeding fails to satisfy the limited due process interests a probationer has regarding notice.7
6
“[W]e are not bound by concessions of law by the parties.” Epps v. Commonwealth, 47
Va. App. 687, 703, 626 S.E.2d 912, 919 (2006) (en banc), aff’d on other grounds, 273 Va. 410,
641 S.E.2d 77 (2007).
7
In the proceeding below, the Commonwealth indicated that verbal notice had been
given to appellant’s counsel, stating that he had “mentioned this” to appellant’s counsel.
Assuming without deciding that there might be a circumstance in which verbal notice would be
sufficiently specific and detailed to render the failure to provide the required written notice
harmless error, we find this is not such a case.
-7-
Accordingly, it was error for the circuit court to admit and consider evidence related to the
Petersburg charges/incident.
Harmless Error
Having determined that the circuit court erred, we must determine whether that error was
harmless. “A due process violation at a revocation proceeding is subject to harmless error
analysis.” United States v. Verduzco, 330 F.3d 1182, 1184 (9th Cir. 2003) (internal quotation
marks and citations omitted). See also Code § 8.01-678.8
Appellant candidly concedes that the circuit court could have revoked his suspended
sentence and imposed all of the previously suspended period of incarceration based on the new
conviction from Prince George alone. The Commonwealth, however, extensively argued that the
Petersburg charges/incident made revocation appropriate, and the circuit court did not limit the
basis for its imposition of the entire suspended sentence to the new conviction. Rather, in
imposing the previously suspended sentence in its entirety, the circuit court detailed what it
deemed a pattern of “violence” since the original convictions, making specific reference to the
events that formed the basis of the Petersburg charges. Thus, argues appellant, we cannot find that
the circuit court would have imposed the same sentence absent the improper consideration of the
Petersburg charges/incident; we agree.9
8
We need not decide if traditional harmless error review, see Kotteakos v. United States,
328 U.S. 750 (1946) (defining harmless error review as determining whether an error had a
“substantial and injurious effect or influence in determining the” outcome), or federal
constitutional harmless error review, see Chapman v. California, 386 U.S. 18, 23 (1967)
(“[B]efore a federal constitutional error can be held harmless, the court must be able to declare a
belief that it was harmless beyond a reasonable doubt.”), applies in this case because the error
was not harmless under either standard.
9
We note that, although the concession is not binding upon us, the Commonwealth
candidly conceded that, if consideration of the Petersburg incident were error, it was not
harmless because the circuit court’s comments made clear that the Petersburg incident was at
least part of the reason that all of the previously suspended sentence was imposed.
-8-
The Virginia Supreme Court was faced with a similar scenario in Turner v. Commonwealth,
278 Va. 739, 685 S.E.2d 665 (2009). In Turner, the Court acknowledged that there was sufficient
admissible evidence before the circuit court to support the revocation of the suspended sentence, id.
at 744, 698 S.E.2d at 668, but recognized that such a finding did not render the erroneous admission
of evidence harmless. Specifically, the Court held that
[w]e cannot, however, say that the error of receiving evidence [that
should not have been considered] was harmless because we cannot
ascertain from the record the extent, if any, to which the error may
have contributed to the punishment imposed. The court had before
it a spectrum of available penalties ranging from “Probation/No
incarceration” . . . to revocation of the entire period of suspension,
the penalty the court decided upon. From the argument of counsel
and the court’s remarks at the revocation hearing, it appears likely
that the evidence erroneously admitted was at least a contributing
factor in the court’s decision.
Id. Based on the rationale of Turner, we cannot say that the circuit court’s erroneous
consideration of the Petersburg incident was harmless.
Need for a Continuance
Having conceded that the notice was “probably inadequate” and that appellant suffered at
least some prejudice from the lack of notice, the Commonwealth argues that reversal is
inappropriate because appellant failed to request a continuance. In essence, the Commonwealth
argues that appellant had a duty to save the Commonwealth from itself.
-9-
The Commonwealth relies heavily on our initial decision in Logan.10 In Logan, Logan
“claim[ed that] he was never given written notice of the nature of this alleged violation . . . ,” 50
Va. App. at 525, 651 S.E.2d at 406, and thus, argued that the proceedings failed to comport with
due process. We rejected his argument for two reasons. First, we found that the record “belie[d]
this argument” for Logan, in fact, had “received written notice from the Commonwealth and he
knew what probation violations were lodged against him.” Id. at 525-26, 651 S.E.2d at 406.
Additionally, we noted that Logan effectively had waived his notice objection by his
conduct at the revocation proceeding. Specifically, we noted that Logan
was given the opportunity to cure the purported defect in the
notice. Appellant three times declined the trial court’s offer to
continue this matter in order that he be properly served with notice.
Indeed, no litigant, even a defendant in a criminal case, will be
permitted to approbate and reprobate -- to invite error and then to
take advantage of the situation created by his own wrong.
Accordingly, appellant cannot now complain that the trial court
erred in revoking his suspended sentence without notice when he
himself refused to accept the court’s invitation to remedy any
defect in service by continuing the matter to a later date.
Id. at 526, 651 S.E.2d 406-07 (internal quotation marks, alterations, and citations omitted).
Unlike Logan, appellant never received written notice that even suggested that the
underlying events from Petersburg would be raised at the revocation hearing. Furthermore,
although he repeatedly argued before the circuit court that he was not prepared to go forward
10
As noted above, our initial decision in Logan (“Logan I”) was reversed by the Virginia
Supreme Court, which remanded the case to this Court for further proceedings. Logan v.
Commonwealth, 276 Va. 533, 666 S.E.2d 346 (2008). On remand, this Court issued another
published opinion, Logan v. Commonwealth, 53 Va. App. 520, 673 S.E.2d 496 (2009) (“Logan
II”). In turn, the Virginia Supreme Court affirmed the result in Logan II, but expressly overruled
this Court’s opinion “insofar as it may be read to suggest that [the Virginia Supreme Court’s]
holding in Anderson [v. Commonwealth, 251 Va. 437, 470 S.E.2d 862 (1996),] is in any way
altered.” Logan v. Commonwealth, 279 Va. 288, 294, 688 S.E.2d 275, 279 (2010). Because the
portion of Logan I related to a probationer’s rejection of an offered continuance was not
addressed in the case’s subsequent history, we continue to adhere to that portion of Logan I.
- 10 -
regarding the Petersburg incident, appellant was never offered a continuance by the circuit court.
Thus, unlike Logan, appellant did not approbate and reprobate.
Conceding that appellant was never affirmatively offered a continuance, the Commonwealth
contends that appellant was required to ask for one and points to a statement from the circuit court
that it would consider a request for a continuance, if one were made, after the evidentiary portion of
the proceeding was completed. An offer to continue a case and an offer to consider a request to
continue a case are different. Under the circumstances of this case, the difference is significant
enough that we decline to read Logan as requiring a litigant in appellant’s position to request a
continuance. Absent an actual offer of a continuance from the circuit court, appellant’s repeated
objections to the lack of notice and the resultant prejudice described above are sufficient to preserve
the issue for our review.
Remedy
Although appellant on brief requested that we reverse and dismiss the matter, appellant
conceded at oral argument that remand was appropriate. Accordingly, we remand the matter to
the circuit court for further proceedings consistent with this opinion if the Commonwealth be so
advised.
CONCLUSION
Because due process required the Commonwealth to provide appellant written notice of its
intention to seek revocation based on the Petersburg charges/incident, it was error for the circuit
court to consider the same. Accordingly, the judgment of the circuit court is reversed and the matter
remanded for further proceedings consistent with this opinion if the Commonwealth be so advised.
Reversed and remanded.
- 11 -