Jason Lamont Burford v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, O’Brien and Athey
PUBLISHED
Argued at Fredericksburg, Virginia
JASON LAMONT BURFORD
OPINION BY
v. Record No. 1275-22-4 JUDGE CLIFFORD L. ATHEY, JR.
AUGUST 8, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
Michael E. Levy, Judge
Brett P. Blobaum, Senior Appellate Attorney (Virginia Indigent
Defense Commission, on briefs), for appellant.
Collin C. Crookenden, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
Jason Lamont Burford (“Burford”) appeals from a decision rendered in the Circuit Court
of Stafford County (“circuit court”) revoking his previously suspended sentences, imposing an
active sentence of six months in jail, and resuspending the remaining balance left for five years.
Burford contends, on appeal, that the circuit court erred by: (1) determining he violated a
condition of his previously suspended sentences, (2) refusing to find that the violation was but a
“first technical violation” pursuant to Code § 19.2-306.1(A), and (3) sentencing him to an active
sentence “incommensurate” with his conduct. Finding no error, we affirm the circuit court’s
judgment.
I. BACKGROUND
In March 2021, the Stafford County General District Court (“district court”) convicted
Burford of sexual battery, assault and battery, and stalking before sentencing him to 36 months in
jail with 30 months suspended for five years. Per the conviction orders entered by the district court,
Burford was required to report to the “local community-based probation agency” (“CBP”) and his
suspended sentence of 30 months was conditioned on his good behavior, no contact with the
victim, “a CBP referral for mental health eval[uation],” and completion of “all
recommendations.”
In May 2021, Burford finished his term of active incarceration before meeting with
Patricia Thomas, “the intake officer” for Stafford County’s community-based probation program.
As part of the initial meeting, the intake officer reviewed a document with Burford that detailed
both general and specific terms and conditions of his probation. For example, she explained to
Burford that he was required to regularly meet with his designated probation officer, David
Gonier (“Officer Gonier”). The intake officer also told Burford that he was required to complete
the court-ordered mental health evaluation with Daybreak Counseling and comply with any
subsequent recommendations arising out of the mental health evaluation. After the intake officer
explained each of the conditions to him, Burford signed the document confirming that he
understood the terms and conditions without asking any questions or displaying any confusion.
The intake officer also provided Burford with a card listing Officer Gonier’s contact information
and informed him that he had an initial telephone appointment scheduled with Officer Gonier on
June 8, 2021. Following his initial appointment with Officer Gonier, Burford completed the
court-ordered mental health evaluation with Daybreak Counseling, after which “it was
determined that he [also] needed to complete a psychosexual evaluation.” Burford’s trial counsel
acknowledged that “[t]his recommendation [for a psychosexual evaluation] . . . did not come
from Mr. Gonier, [and] did not come from community[-]based probation.”
Officer Gonier subsequently transferred Burford’s probation oversight to Henrico County
because that was where Burford said he would be residing, and on August 31, 2021, Henrico
probation officer Dalee Thomas (“Officer Thomas”) was tasked with supervising Burford’s
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compliance with the terms and conditions of his probation. During a phone call, Burford advised
Officer Thomas that he was on “unsupervised probation,” and as a result, did not have to comply
with his instructions. Officer Thomas repeatedly explained to Burford that the district court had
referred him to local, community-based probation and that he needed to be supervised while he
completed a psychosexual evaluation and any subsequent treatment indicated by the evaluator.
In response, Burford “raised [his] voice” and angrily insisted that Officer Thomas was “wrong”
because the district court judge had told him he was on unsupervised probation. After Officer
Thomas suggested that Burford confer with his attorney about the district court’s order, Burford
“hung up the phone.” Following that phone call, Burford failed to contact Officer Thomas again,
missed two scheduled appointments with him in September and October of 2021, and never
completed the recommended psychosexual evaluation.
On October 29, 2021, Officer Gonier reported to the district court that Burford had
missed appointments with his probation officer and had failed to complete the recommended
psychosexual evaluation. As a result, on November 15, 2021, the district court issued a show
cause summons for Burford for violating the terms and conditions of his probation and ordering
him to show cause why his previously suspended sentences in each of his prior convictions
should not be revoked. On January 12, 2022, following a hearing, the district court found that
Burford had violated the conditions of his suspended sentences, revoked the balance of his
suspended sentences in each case, ordered him to serve six months of active incarceration, and
resuspended the twenty-four-month balance of his sentences. Burford appealed that decision to
the circuit court for a de novo probation revocation hearing.
During the probation revocation hearing in the circuit court, Burford proffered a printed
summary from the district court’s case information website which indicated he was on
“unsupervised probation” for his three convictions. Based thereon, Burford argued that the
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Commonwealth had failed to show “good cause” to revoke his suspended sentences. Burford
also continued to maintain that his belief that he was on “unsupervised probation,” and therefore
not obligated to follow his probation officers’ instructions, was reasonable given the printed
summary on the general district court’s website. He also maintained that it was not
“unreasonable to refuse” to complete the recommended psychosexual evaluation. The
Commonwealth countered that the district court’s orders unequivocally required Burford to
complete a mental health evaluation and comply with any recommendations. The
Commonwealth further emphasized that Burford had refused to complete the recommended
psychosexual evaluation despite his probation officers’ clear instructions.
Following the hearing, the circuit court found that the district court’s orders explicitly
conditioned Burford’s suspended sentences on his completion of a mental health evaluation
through community probation and compliance with any subsequent recommendations. The
circuit court also found that the intake officer had reviewed each of the terms and conditions of
Burford’s probation with him following his release from incarceration, and Burford did not
contest that he was on supervised probation at that time. Thus, the circuit court concluded that
Burford had violated the conditions of his suspended sentences by refusing to complete the
psychosexual evaluation and further violated his probation by missing two appointments with his
probation officer.
During the sentencing phase of the hearing, the Commonwealth asked the circuit court to
reimpose at least twelve months in jail based on the underlying crimes, which were serious and
concerning. The Commonwealth also cited Burford’s angry refusal to comply with the district
court’s explicit conditions of his suspended sentences. Burford contended that the violation was
only a first technical violation and requested that any sentence imposed by the circuit court be
consistent with Code § 19.2-306.1(C). In the alternative, Burford argued, in mitigation, that he
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had been on bond for seven months without incident or concerning behavior. He also
acknowledged that he was mistaken regarding the nature of his probation and promised to
comply in the future.
The circuit court held that Burford’s failure to complete the psychosexual evaluation was
not a technical violation of his probation but was instead a violation of a condition of his
suspended sentences. The circuit court then revoked the balance of his previously suspended
sentences and resuspended the balance of the suspended sentences with the exception of six
months which Burford was required to serve. The court also conditioned the resuspended
sentences on Burford’s successful completion of supervised probation under the same conditions
previously imposed. In reaching its decision, the circuit court rejected Burford’s claim that he
mistakenly believed he was not required to complete the psychosexual evaluation because he
was on unsupervised probation. The circuit court also specifically found that Burford had
angrily and disrespectfully disregarded his probation officer’s instructions, abruptly ended the
call with his probation officer, refused to clarify any misunderstanding with his attorney, and
avoided contact with his probation officer. Burford appealed.
II. ANALYSIS
A. Standard of Review
“On appeal, ‘[w]e view the evidence received at [a] revocation hearing 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.’” Green v. Commonwealth, 75 Va. App. 69, 76
(2022) (alterations in original) (internal quotation marks omitted) (quoting Johnson v.
Commonwealth, 296 Va. 266, 274 (2018)). “‘[T]he trial court’s findings of fact and judgment
will not be reversed unless there is a clear showing of abuse of discretion.’” Id. (internal
quotation marks omitted) (quoting Jacobs v. Commonwealth, 61 Va. App. 529, 535 (2013)).
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“However, ‘[u]nder well-established principles, an issue of statutory interpretation is a pure question
of law which we review de novo.’” Id. (alteration in original) (quoting Conyers v. Martial Arts
World of Richmond, Inc., 273 Va. 96, 104 (2007)).
“The sufficiency of the evidence to sustain an order of revocation ‘is a matter within the
sound discretion of the trial court.’ . . . The discretion required is a judicial discretion, the
exercise of which ‘implies conscientious judgment, not arbitrary action.’” Duff v.
Commonwealth, 16 Va. App. 293, 297 (1993) (quoting Hamilton v. Commonwealth, 217 Va.
325, 327 (1976)).
B. The circuit court did not err in finding that Burford violated a condition of his
suspended sentences.
Burford contends that the circuit court’s finding that he had violated a condition of his
suspended sentences was unreasonable because he believed, though mistakenly, that he was on
unsupervised probation and therefore not required to comply with the court-ordered
psychosexual evaluation. We disagree.
“[P]robation revocation hearings are not a stage of criminal prosecution and therefore a
probationer is not entitled to the same due process protections afforded a defendant in a criminal
prosecution.” Davis v. Commonwealth, 12 Va. App. 81, 84 (1991) (citing Gagnon v. Scarpelli,
411 U.S. 778, 782 (1973)). Thus, “proof beyond a reasonable doubt of [a probation violation] is
not required.” Marshall v. Commonwealth, 202 Va. 217, 221 (1960). Rather, after suspending
“the execution or imposition of sentence,” a trial court “may revoke the suspension of sentence
for any cause the court deems sufficient that occurred at any time within the probation period, or
within the period of suspension fixed by the court.” Code § 19.2-306(A). “The cause deemed by
the court to be sufficient for revoking a suspension must be a reasonable cause.” Duff, 16
Va. App. at 297 (quoting Hamilton, 217 Va. at 327).
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The district court’s conviction orders explicitly referred Burford to community-based
probation and conditioned the suspension of his sentences, among other requirements, on his
completion of a mental health evaluation and compliance with any resulting recommendations.
Following his release from incarceration, the probation intake officer reviewed with Burford
both the special conditions of his suspended sentences as well as the more general terms of his
probation. The review included the specific condition that he complete a mental health
evaluation and “follow all recommendations.” Burford never asked the intake officer any
questions while she reviewed the probation document with him, nor did he display any confusion
during their meeting. Burford never asserted that the district court judge told him he was only on
“unsupervised probation,” nor did he contest the completion of the mental health evaluation.
Additionally, he complied with the instruction to contact Officer Gonier and completed the initial
mental health evaluation. Finally, he signed the “Conditions of Probation” document indicating
his understanding of both his responsibility to comply and the consequences if he did not.
Only after learning that he was required to complete a psychosexual evaluation as
required as a “recommendation” resulting from the mandated “mental health evaluation” did
Burford claim that he was on unsupervised probation. Thus, in rejecting Burford’s claim that he
believed he was on unsupervised probation, the circuit court reasonably evaluated the evidence
presented. Thus, we cannot find that the circuit court abused its discretion in concluding that
Burford intentionally refused to complete the psychosexual evaluation recommended as a result
of the mental health evaluation Burford did complete. In support of its conclusion, the circuit
court cited Burford’s signing of the document outlining the conditions of his probation including
the requirement that he comply with the recommendations following his mental health
evaluation. The circuit court also cited his lack of confusion regarding his probation and his
failure to resolve any questions he may have had by contacting his attorney. Instead, Burford
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“raised [his] voice” during the phone call with Officer Thomas, angrily insisted that he was
“wrong,” “hung up the phone” on him, and did not further communicate with him. See Slayton
v. Commonwealth, 185 Va. 357, 367 (1946) (holding that in revocation cases, “the credibility of
the witnesses and the evaluation and weight of their testimony are for the [trial] court”).
Here, the record clearly supports the circuit court’s conclusion that Burford unreasonably
refused to obey the district court’s order to comply with any recommendations following the
mental health evaluation. Accordingly, the circuit court did not err, abuse its discretion, nor
arbitrarily determine that Burford had violated a condition of his suspended sentences.
C. The circuit court did not err in finding that Burford committed a non-technical
violation of his suspended sentences.
Burford next contends that the circuit court erred by failing to find that he had merely
committed a “technical violation” pursuant to Code § 19.2-306.1(A). At trial, and in his opening
brief, Burford contends that, since he only failed to maintain contact with his probation officer,
he merely committed a technical violation. At oral argument, Burford further characterized any
violation he may have committed as merely failing to follow the instructions of the probation
officer, be truthful and cooperative, and report as instructed. Although a probationer invariably
commits many technical violations during an extended period of noncompliance, we disagree
with Burford’s conclusion that his noncompliance amounted only to a technical violation.
“Code § 19.2-306.1 creates two tiers of probation violations: (1) technical violations,
based on a probationer’s failure to do one of ten enumerated actions” listed in Code
§ 19.2-306.1(A), “and (2) non-technical violations.” Heart v. Commonwealth, 75 Va. App. 453,
466 (2022); see also Delaune v. Commonwealth, 76 Va. App. 372, 383 (2023) (holding that a
probation violation is technical in nature when the “violation conduct matches the conduct listed
in Code § 19.2-306.1(A)”). “The language, therefore, need not be identical, as long as the
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probationer’s proscribed ‘underlying’ conduct ‘matches’ the listed technical violation in the
statute.” Thomas v. Commonwealth, 77 Va. App. 613, 624 (2023).
Technical violations in Code § 19.2-306.1(A)’s enumerated list of ten violations are
subject to the limited sentencing scheme under Code § 19.2-306.1(C). See Thomas, 77 Va. App.
at 622. Code § 19.2-306.1(B) describes non-technical violations as including criminal
convictions “committed after the date of the suspension,” Thomas, 77 Va. App. at 622, and
“violation[s of] another condition other than (i) a technical violation or (ii) a good conduct
violation that did not result in a criminal conviction,” Code § 19.2-306.1(B). For non-technical
violations, courts are empowered to “revoke the suspension and impose or resuspend any or all
of that period previously suspended.” Id. Further, the term “special conditions” is helpful in
framing how a violation may be determined to be a “non-technical violation.” Courts can
impose “special conditions” in conviction orders. While “special condition” is not defined by
statute, violations of special conditions are “non-technical” by nature since they condition
behavior beyond the list of behaviors included in Code § 19.2-306.1(A); they are imposed by a
court and “are acknowledged and agreed to by a probationer in written form when meeting with
his probation officer to begin a period of supervision.” Thomas, 77 Va. App. at 623. To be
classified as special conditions, the behaviors must be distinct from the conditions included in
Code § 19.2-306.1(A) and courts cannot evade the limiting sentencing scheme for technical
violations by “crafting ‘special conditions’ that encompass conduct defined by the statute as a
‘technical violation.’” Id. at 625 (quoting Diaz-Urrutia v. Commonwealth, 77 Va. App. 182, 191
(2023)).
Based on the framework described above, the operative inquiry is, first, to determine
whether the prohibited behavior falls into the “technical violation” category of Code
§ 19.2-306.1(A). See id. Here, the district court’s order conditioned Burford’s probation on his
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completing “a CBP referral for mental health eval[uation],” and “follow[ing] all
recommendations.” The prohibited behavior that Burford engaged in was failing to complete the
recommended psychosexual evaluation after “it was determined that he needed to complete a
psychosexual evaluation.” In identifying Burford’s behavior and comparing it to the list of
enumerated technical violations, the only provision dealing with a probation officer’s
instructions is in Code § 19.2-306.1(A)(v), which states that it is a technical violation to fail to
“follow the instructions of the probation officer.” The “underlying conduct” that Burford
committed was not the failure “to follow the instructions of the probation officer,” but rather, the
failure to follow the instructions of the court. The condition to complete “a CBP referral for
mental health eval[uation], [and to] follow all recommendations” was therefore a special
condition because the conduct underpinning this violation does not fall within any of the ten
enumerated technical violations under Code § 19.2-306.1(A).
Because Burford’s suspended sentences were conditioned in part on a special condition,
the violation of the special condition was therefore a non-technical violation under Code
§ 19.2-306.1(B). Violating the district court’s instruction to “follow all recommendations” was
explicitly tied to the district court’s requirement to complete the mental health evaluation.
Further, the probation officer was not the one who recommended Burford complete the
psychosexual evaluation. The district court effectively crafted a special condition that required
follow-through on behalf of Burford. The record supports the circuit court’s conclusion that
Burford violated his probation by refusing to comply with the district court’s express special
condition that he complete any recommendations following his mental health evaluation.
On appeal, Burford argued for the first time that the circuit court’s finding that he had
violated his probation was unreasonable because the district court’s orders did not specify a
timeframe within which he was to complete the mental health evaluation and subsequent
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recommendations. He further contends that because the five-year suspension period had not
elapsed, any violation would only be a technical violation for not following the guidance of
probation. Burford did not present that argument to the circuit court, so Rule 5A:18 bars us from
considering it for the first time on appeal. Edwards v. Commonwealth, 41 Va. App. 752, 760
(2003) (en banc) (“Making one specific argument on an issue does not preserve a separate legal
point on the same issue for review.”). Although there are exceptions to Rule 5A:18, Burford has
not invoked them, and the Court will not apply the exceptions sua sponte. Id.Thus, after finding that Burford violated a condition of his suspended sentences by
refusing to complete a recommended psychosexual evaluation, the circuit court did not err by
declining to classify the violation as a technical violation.
D. The circuit court did not abuse its discretion in sentencing Burford to an active
sentence of six months.
Burford argues in the alternative that even if the circuit court had such sentencing
discretion, it abused that discretion in “weighing [the] factors” relevant to sentencing. He
emphasizes that he initially complied with probation and was on bond without incident before
the revocation hearing. He also argues that his probation violation arose from “confusion”
regarding whether he was on supervised or unsupervised probation. On that basis, he maintains
that “the trial court committed a clear error of judgment” by imposing six months in jail. We
disagree.
Code § 19.2-306.1 “contains specific limitations on sentencing that apply when a circuit
court bases its revocation of a suspended sentence” on a technical violation. Heart, 75 Va. App.
at 466 (quoting Green, 75 Va. App. at 75). But when the probationer violates a condition other
than “(i) a technical violation or (ii) a good conduct violation that did not result in a criminal
conviction,” the trial court has broad sentencing discretion and “may revoke the suspension and
impose or resuspend any or all of that period previously suspended.” Code § 19.2-306.1(B)
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(emphasis added). Because Burford’s violation was not a technical violation, it was within the
circuit court’s discretion to impose or resuspend any or all of the previously suspended
sentences. Id.
It was within the circuit court’s purview to weigh any mitigating factors Burford
presented, such as his initial compliance with probation and his allegedly mistaken belief that he
did not have to complete the psychosexual evaluation. See Keselica v. Commonwealth, 34
Va. App. 31, 36 (2000). As noted above, however, the circuit court rejected Burford’s claimed
misunderstanding, so that was not a mitigating factor here.
“The statutes dealing with probation and suspension are remedial and intended to give the
trial court valuable tools to help rehabilitate an offender through the use of probation, suspension of
all or part of a sentence, and/or restitution payments.” Howell v. Commonwealth, 274 Va. 737, 740
(2007). Burford’s continued disregard for an explicit condition of his suspended sentences supports
the circuit court’s implicit finding that he was not yet amenable to rehabilitation. “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)). Burford failed to make productive use of the grace that had been extended to him and
instead belligerently refused to comply with the district court’s explicit order. Accordingly, we
hold that the sentence the circuit court imposed represents a proper exercise of its sentencing
discretion. See Alsberry v. Commonwealth, 39 Va. App. 314, 321-22 (2002) (finding the court
did not abuse its discretion by imposing the defendant’s previously suspended sentence in its
entirety “in light of the grievous nature of [the defendant’s] offenses and his continuing criminal
activity”).
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III. CONCLUSION
For the foregoing reasons, the circuit court’s judgment is affirmed.
Affirmed.
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