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Gregory R. Sheldon (Bain-Sheldon, PLC, on briefs), for appellant.
Eugene Murphy, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on briefs), for appellee.
Present: FRANK, HUFF, JJ., and COLEMAN, S.J.
[62 Va.App. 798] Michael J.G. Saunders (" appellant" ) appeals an order of the Chesterfield Circuit Court (" trial court" ) convicting him of breaching the terms of his suspended sentence, in violation of Code § 19.2-306. Following
a bench trial, appellant was sentenced to seven years' incarceration in the Virginia Department of Corrections, with four years suspended. On appeal, appellant contends that 1) the trial court erred bye denying appellant's motion to dismiss show cause order, vacate judgment and set aside the sentence, thereby depriving him of due process of law and equal protection of law; 2) the trial court erred by allowing hearsay evidence over appellant's objections absent a finding of good cause to do so, thereby denying him [62 Va.App. 799] the right to confront and cross-examine his accusers in violation of the Sixth Amendment of the United States Constitution and denying him due process of law in violation of the Fourteenth Amendment of the United States Constitution; 3) the trial court erred by failing to dismiss the show cause proceeding on due process grounds based upon appellant's argument that Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), required a preliminary hearing or probable cause hearing prior to any final revocation hearing; and 4) the trial court erred by finding the evidence sufficient to prove appellant had violated the terms and conditions of his probation.
For the following reasons, this Court affirms the trial court's convictions.
On appeal, " ‘ we consider the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial.’ " Williams v. Commonwealth, 49 Va.App. 439, 442, 642 S.E.2d 295, 296 (2007) ( en banc ) (quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed, the evidence is as follows.
On September 2, 2008, appellant was convicted on a guilty plea to two counts of consensual sodomy with juveniles under Code § 18.2-361(A) and sentenced to five years' incarceration with five years suspended on each count. On August 4, 2009, appellant was found to have violated the terms of probation, whereupon the trial court revoked the suspended sentences and thereafter re-suspended the sentences and returned appellant to supervised probation. On April 20, 2012, appellant, pro se, filed a motion to vacate trial, sentencing, and show cause orders due to lack of subject matter jurisdiction pursuant to Code § 8.01-428 and attacked the constitutionality of his convictions. The trial court subsequently denied appellant's motion on April 23, 2012. Appellant did not appeal that [62 Va.App. 800] decision. On August 22, 2012, appellant filed the identical motion.
On August 22, 2012, appellant, pro se, appeared for a probation revocation hearing accompanied by standby counsel. Appellant's probation officer, Monica Jones (" Jones" ), testified that appellant did not comply with the terms of probation. Her testimony and written report were based on assertions made by third persons who were absent from the hearing. Over appellant's hearsay objections, the trial court received into evidence Jones's testimony and written report, finding both to be reliable.
Jones testified that appellant did not comply with probation instruction six, wherein appellant was required to " follow the probation and parole officer's instructions and ... be truthful, cooperative, and report as instructed." Additionally, she reported that appellant violated the term of his probation to " not purchase, consume or possess alcohol and/or illegal substances."
Over appellant's hearsay objection, Jones testified that a social worker from Prince George informed her that appellant was in downtown Fredericksburg at 12:30 a.m. on May 12, 2012 and " was extremely intoxicated." Jones spoke with two people who saw appellant, and both advised her that they witnessed appellant out after curfew and intoxicated. Jones testified that she and a co-worker " went to the bar and questioned a few of the employees ... [but] [t]hey were not familiar with [appellant], nor did they have any videotape of the night in question."
Jones further testified that when she questioned appellant during the investigation, he denied the incident and stated that his roommate, George Lowe (" Lowe" ), could verify that appellant was home that evening. Over
appellant's objection, Jones testified that Lowe contacted her and stated that appellant was out and drinking during the night in question and [62 Va.App. 801] such activity was a " common occurrence." According to Jones, Lowe also reported that appellant had made threatening comments about using a gun at the probation office.
Jones also indicated that John Williams (" Williams" ), a roommate of appellant, mentioned he had been out drinking with appellant on several occasions. Another roommate, Ted Johnson (" Johnson" ), informed Jones that appellant asked him to confirm that appellant was home on the night in question, but Johnson refused. Moreover, on a visit to the appellant's home, Jones found a beer can in appellant's room.
At the conclusion of Jones's testimony, the Commonwealth rested and appellant moved to strike the Commonwealth's evidence on the grounds that the hearsay evidence lacked reliability and no evidence corroborated the hearsay presented in the probation report. The court overruled the motion holding that Jones's hearsay testimony was reliable. Appellant ...