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Nunez v. Commonwealth

Court of Appeals of Virginia

March 22, 2016

JUAN DANIEL VACA DIEZ NUNEZ
v.
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY. Michael F. Devine, Judge.

Bryan T. Kennedy, Assistant Public Defender, for appellant.

Christopher P. Schandevel, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Humphreys, McCullough and Senior Judge Haley.

OPINION

Page 63

[66 Va.App. 155] STEPHEN R. McCULLOUGH, JUDGE.

Juan Daniel Vaca Diez Nunez argues that the trial court erred (1) when it found him guilty of a felony offense when he was not present at the hearing; (2) when it sentenced him on a felony offense when he was not present at the sentencing hearing; (3) when it found him in violation of the terms of his probation as he did not willfully fail to

Page 64

complete terms of his probation as he had been deported; and (4) by finding that it did not have the authority to dismiss the case under the Supreme Court's decision in Starrs v. Commonwealth, 287 Va. 1, 752 S.E.2d 812 (2014). We hold that on the particular facts of this case, any error was harmless.

BACKGROUND

Nunez was charged under Code § 18.2-250 with possession of an illegal drug. On September 9, 2013, he entered a plea of guilty to the charge. After hearing the Commonwealth's proffer of evidence, the trial court found the evidence sufficient for guilt but withheld the finding of guilt. The court ordered a presentence report and scheduled a hearing for November 15, 2013.

At a hearing on November 15, 2013, at which the defendant was present and represented by counsel, the court asked the defendant if he had any evidence he wished to present, and the defense declined. In addition, the court inquired whether there were any additions or corrections to the presentence report, to which defense counsel stated that there were none. The court concluded that it would make a deferred disposition, as authorized by Code § 18.2-251. The court placed Nunez on supervised probation and continued the case for one year.

On November 19, 2014, the probation office wrote a letter to the court to notify the court that on February 20, 2014, Nunez " was taken into Immigration and Customs Enforcement (ICE) custody. On April 2, 2014, he returned to Bolivia by voluntary departure." In addition, the probation office wrote that

A record check this date confirmed that . . . Nunez has not knowingly returned to this country illegally. In regards to [66 Va.App. 156] the special conditions of probation associated with a disposition pursuant to ยง 18.2-251; . . . Nunez did not have the opportunity to ...

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