Pervis Joseph Harris v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Chaney, Callins and Senior Judge Petty
UNPUBLISHED
Argued at Lexington, Virginia
PERVIS JOSEPH HARRIS
MEMORANDUM OPINION* BY
v. Record No. 1288-21-3 JUDGE DOMINIQUE A. CALLINS
SEPTEMBER 6, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
J. Christopher Clemens, Judge
J. Thomas Love, Jr., Senior Assistant Public Defender, for appellant.
Liam A. Curry, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
Pervis Joseph Harris appeals a November 16, 2021 order revoking two years of his
previously suspended sentence. Harris argues that the trial court erred by imposing more than
fourteen days of active incarceration because his hearing notice only alleged technical violations
and did not refer to a failure to pay restitution. Harris also argues that the trial court erred by
denying without a hearing his motion to set aside and reconsider the verdict. Finally, Harris argues
that the trial court abused its discretion by revoking two years of his previously suspended sentence
based on technical violations and a failure to make sufficient restitution payments. For the
following reasons, we affirm the trial court’s judgment.
BACKGROUND
“In revocation appeals, the trial court’s ‘findings of fact and judgment will not be
reversed unless there is a clear showing of abuse of discretion.’” Jacobs v. Commonwealth, 61
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Va. App. 529, 535 (2013) (quoting Davis v. Commonwealth, 12 Va. App. 81, 86 (1991)). “The
evidence is considered in the light most favorable to the Commonwealth, as the prevailing party
below.” Id.In March 2014, the trial court convicted Harris of embezzlement and sentenced him to ten
years’ incarceration, with seven years suspended. The trial court also ordered Harris to pay
nearly $48,000 of restitution in “regular monthly installments.” In March 2017, Harris’s
probation officer filed a major violation report alleging that Harris had twice tested positive for
cocaine and had disregarded the probation officer’s instructions regarding a substance abuse
assessment. Harris also had not paid any of the restitution owed and “absconded for three years,
nine months, and fourteen days,” until his arrest in January 2021. Following a revocation
hearing in February 2021, the trial court revoked two of the seven years previously suspended,
and resuspended all but thirty days. The court also ordered Harris to pay $300 per month
towards restitution and applied Harris’s $500 cash bond towards restitution.
Harris finished his term of active incarceration and returned to supervised probation on
February 23, 2021. On April 19, 2021, Harris’s probation officer filed a major violation report
alleging that Harris had tested positive for cocaine on February 26, March 23, and April 12,
2021, and had not followed the probation officer’s instructions to enroll in a substance abuse
program. The violation report also stated that Harris still owed $47,412 in restitution. The trial
court issued a capias for Harris’s arrest on April 29, 2021.
At a revocation hearing on October 18, 2021, the probation officer testified that Harris
did not make any of the monthly $300 restitution payments the trial court had ordered, and made
a single restitution payment of $400 shortly before the hearing. Harris admitted that he had not
completed his drug assessment appointment as directed, explaining that he had been in a car
accident in early May 2021 and was hospitalized for about a week. Harris acknowledged that he
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had three positive drug tests, although he denied using drugs since leaving the hospital. He also
admitted that he had not completed a substance abuse assessment or communicated with his
probation officer since before May 20, 2021. Harris testified that he was employed and planned to
pay $100 towards restitution from each paycheck going forward.
After hearing the evidence and argument by counsel, the trial court found that Harris had
violated the conditions of his suspended sentence and probation. The court reviewed the
discretionary sentencing guidelines 1 and emphasized that the court had previously revoked two
years of Harris’s suspended sentence, resuspended all but thirty days, and ordered Harris to pay
$300 per month towards restitution. Despite that order, Harris had paid only $900, including the
cash bond the court had applied to restitution, and had not complied with the rules of probation.
Accordingly, the court revoked two years of Harris’s previously suspended sentence of seven
years and set a “purge amount” of $10,000.
Harris moved the trial court to set aside the verdict and reconsider, arguing that because
the “alleged violations of probation stated in the major violation report would be considered
technical violations,” the court did not have the authority to sentence him to more than fourteen
days in jail. Harris acknowledged that a failure to pay restitution “would be considered a special
condition violation” but argued that he had not received notice of that violation “as required by
the due process clauses of the United States and Virginia Constitutions.” The trial court denied
the motion without a hearing. This appeal followed.
1
The sentencing guidelines recommended a sentence of zero to fourteen days for Harris’s
positive drug tests and failure to follow the officer’s directions.
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ANALYSIS
I. Notice of failure to pay restitution
Harris argues that the trial court violated his due process rights by sentencing him to more
than fourteen days of active incarceration because the major violation report “referred [only] to
technical violations and made no reference to a failure to pay restitution.” He acknowledges that the
violation report stated that he owed restitution, but asserts that the report did “not allege a failure to
make [restitution] payments as a basis for the probation violation.” Accordingly, he maintains that
he “was not fully prepared to defend against that allegation.”
The approbate-reprobate doctrine prohibits a party from “taking successive positions in
the course of litigation that are either inconsistent with each other or mutually contradictory.”
Nelson v. Commonwealth, 71 Va. App. 397, 403 (2020) (quoting Rowe v. Commonwealth, 277
Va. 495, 502 (2009)). “The prohibition against approbation and reprobation forces a litigant to
elect a particular position, and confines a litigant to the position that [he] first adopted.”
Matthews v. Matthews, 277 Va. 522, 528 (2009). Thus, litigants are precluded from “‘playing
fast and loose’ with the courts” or “‘blowing hot and cold’ depending on their perceived
self-interests.” Babcock & Wilcox Co. v. Areva NP, Inc., 292 Va. 165, 204 (2016) (first quoting
Wilroy v. Halbleib, 214 Va. 442, 445 (1974); and then quoting United Va. Bank v. B.F. Saul Real
Estate Inv. Tr., 641 F.2d 185, 190 (4th Cir. 1981)). When a party has approbated and reprobated
inconsistent positions, this Court will not consider the merits of the opposite position on appeal.
Nelson, 71 Va. App. at 404-05 (“[Appellant] took one position and now affirmatively assumes an
inconsistent position. Accordingly, [appellant’s] position in the trial court below prevents us
from considering an opposite position on appeal.” (citation omitted)).
Here, the April 2021 major violation report explicitly stated that Harris still owed $47,412
in restitution. At the revocation hearing based on that report, Harris then presented evidence on
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restitution, including testimony regarding his past payments and intent to make payments going
forward. During closing argument, Harris expressly acknowledged that the “biggest issue” for the
“victim of the embezzlement” was restitution. Harris also emphasized that he was employed and
“ha[d] been making payments.” Harris finally asked the trial court to consider restitution in ruling
on his probation violations and to keep him on probation to ensure “more of that restitution gets
paid.” Thus, the record shows that Harris presented evidence on restitution at the revocation
hearing, argued restitution in closing, and asked the trial court to consider restitution when
fashioning its sentence. By now arguing that the trial court could not consider his failure to pay
restitution during his revocation proceeding, Harris has approbated and reprobated inconsistent
positions, and we will not consider the merits of his due process argument on appeal. See Nelson,
71 Va. App. at 404-05.
II. Denial of motion to reconsider without a hearing
Harris argues that the trial court erred when it denied without a hearing his motion to set
aside the verdict and reconsider. He contends that the “Constitutional ramifications related to a lack
of proper notice” compelled the court to hold a hearing on his motion.
“We review a trial court’s denial of a motion to reconsider for an abuse of discretion.”
Winston v. Commonwealth, 268 Va. 564, 620 (2004). A litigant “has no right to present oral
argument on a motion to reconsider,” and trial courts commonly dispose of such motions “on the
pleadings, without a hearing, in criminal and in civil cases.” Amos v. Commonwealth, 61 Va. App.
730, 741 (2013) (en banc), aff’d, 287 Va. 301 (2014). Here, given that Harris explicitly asked the
trial court to consider the restitution issue during his revocation hearing, the trial court did not abuse
its discretion by denying his motion that assumed a position inconsistent with the arguments and
evidence he presented at the revocation hearing. Cf. Berry v. Klinger, 225 Va. 201, 207 (1983)
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(holding that the approbate-reprobate doctrine prohibited a mid-trial change in position regarding
the unambiguous nature of a contract).
III. Revocation of suspended sentence
Finally, Harris argues that the trial court abused its discretion by revoking two years of his
previously suspended sentence “based upon technical violations and a failure to make sufficient
restitution payments.” He contends that the recently enacted Code § 19.2-306.1 limited the
permissible sentence for the technical violations alleged in the major violation report to fourteen
days. See 2021 Va. Acts, Spec. Sess. I, ch. 538.
Code § 19.2-306.1 became effective on July 1, 2021, and does not apply to Harris’s case.
This Court recently held that, in a revocation proceeding, a trial court must apply “the law that was
in effect when [the probationer] committed the relevant probation violations and also in effect
when his revocation proceeding began.” Green v. Commonwealth, 75 Va. App. 69, 85 & n.4
(2022).2 Harris’s probation officer reported on April 19, 2021, that Harris had tested positive for
controlled substances and failed to pay restitution. On April 29, 2021, the trial court then issued
a capias for Harris’s arrest. Thus, Harris’s probation violations occurred, and the revocation
proceeding began, before the effective date of Code § 19.2-306.1. Under the operative terms of
the revocation statute in effect when Harris’s revocation proceeding began, once the trial court
found that Harris had violated the terms of suspension, the court had to revoke his suspended
sentence, and the original sentence was “in full force and effect.” Code § 19.2-306(C)(ii) (2016).
The trial court was permitted—but not required—to resuspend all or part of the sentence. Id.;
Alsberry v. Commonwealth, 39 Va. App. 314, 320 (2002).
2
At oral argument, Harris’s counsel conceded that this Court’s decision in Green is
dispositive of his third assignment of error.
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When fashioning its sentence, it was within the trial court’s purview to weigh any mitigating
factors Harris presented, including his car accident, subsequent hospitalization, employment,
restitution payments, and expressed intent to continue paying restitution. See Keselica v.
Commonwealth, 34 Va. App. 31, 36 (2000). However, the evidence also showed that Harris
tested positive for cocaine three times—including once within three days of entering supervised
probation—and that he had only made a single payment towards restitution and disregarded his
probation officer’s instructions to complete a substance abuse assessment. Harris does not
dispute that the trial court had good cause to revoke his suspended sentence, as he conceded at the
revocation hearing that he had failed drug tests and had not communicated with his probation officer
as required. Harris also had not paid the amount of restitution the trial court had ordered at the prior
revocation proceeding.
“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.’”
Hunter v. Commonwealth, 56 Va. App. 582, 587 (2010) (quoting Price v. Commonwealth, 51
Va. App. 443, 448 (2008)). And as the trial court found that Harris continued to use cocaine and
made only minimal restitution during the suspension period, it did not err in determining that Harris
failed to make productive use of the grace extended to him. “For probation to have a deterrent
effect on recidivism, real consequences must follow a probationer’s willful violation of the
conditions of probation.” Price, 51 Va. App. at 449. We conclude that the sentence the trial
court imposed represents such real consequences and was not an abuse of judicial discretion.
CONCLUSION
For the foregoing reasons, the trial court’s judgment is affirmed.
Affirmed.
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