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Wilson v. Commonwealth

Court of Appeals of Virginia

November 29, 2016

CHARLIE LUTHER WILSON, JR.
v.
COMMONWEALTH OF VIRGINIA

         FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE James J. Reynolds, Judge

          Sherron E. Ashby, Assistant Public Defender, for appellant.

          Aaron J. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Judges Humphreys, AtLee and Senior Judge Clements Argued at Lexington, Virginia

          OPINION

          ROBERT J. HUMPHREYS, JUDGE

         Charlie Luther Wilson, Jr. ("Wilson") appeals the October 13, 2015 decision of the Circuit Court of the City of Danville (the "circuit court") revoking his suspended sentence and sentencing him to twelve months' incarceration. Wilson's single assignment of error is that the circuit court lacked authority to revoke his suspended sentence at the October 13, 2015 revocation hearing because the circuit court's February 8, 2011 probation extension order failed to properly extend his probation period for two reasons: (1) the October 26, 2005 restitution order was improperly delegated to the probation officer, rather than determined by the circuit court as required by Code § 19.2-305.1(D), thus any subsequent order is invalid, and (2) his probation period had previously expired, on April 23, 2010, by the time the February 8, 2011 probation extension order was entered.

          I. Background

         On October 26, 2005, Wilson, who had theretofore entered nolo contendere pleas and had been convicted of involuntary manslaughter and possession of a firearm after having been previously convicted of a felony, was sentenced by the circuit court to a term of five years' imprisonment with two years and six months suspended for the involuntary manslaughter conviction, and five years' imprisonment with three years suspended for possession of a firearm as a convicted felon. Wilson's sentences ran consecutively, thus, he was to serve four years and six months of imprisonment and had five years and six months of suspended time. Additionally, the circuit court ordered that Wilson "shall pay restitution in the amount to be determined by the Probation Officer . . . ." (Emphasis added). The October 26, 2005 sentencing order did not contain a requirement to make specific monthly payments or a date certain by which Wilson must fulfill his restitution obligation. Further, the circuit court's October 26, 2005 order "placed [Wilson] on probation to commence upon release from incarceration, under the supervision of a Probation Officer for twelve (12) months."[1]

         On May 1, 2009, Wilson was placed on probation supervision. Wilson's date of release from probation supervision was April 23, 2010. On July 7, 2010 Wilson and his probation officer, Shawn M. Trimble ("Trimble"), signed a voluntary extension of probation agreement stating that Wilson "agree[d] to waive his probation revocation hearing . . ., and have [his] probation supervision extended until all court costs, fines, and restitution are paid in full." The record is silent as to whether Wilson had the assistance of legal counsel when he signed the July 7, 2010 voluntary extension of probation agreement.

          On February 2, 2011, Trimble sent the circuit court a letter titled "REQUEST: Voluntary Extension of Supervised Probation" asking for Wilson's supervised probation to be "extended indefinitely until all restitution is paid in his case." In this letter to the circuit court, Trimble explained that Wilson adjusted well to supervised probation "with the exception of paying [his] restitution." Further, Trimble informed the circuit court about the July 7, 2010 signed voluntary probation extension agreement and that Wilson's restitution balance was $6, 046.27. On February 8, 2011, the circuit court granted Trimble's request and issued an order stating that "upon the request of the Probation Officer by letter dated February 2, 2011, and [with] the written consent of the probationer, the period of probation for the said Charlie Luther Wilson, Jr. is hereby extended to allow defendant additional time to pay restitution." This order effectively placed Wilson on probation indefinitely until he paid his restitution in full.

         Over four years later, on April 1, 2015, Jessica Echols ("Echols"), a probation and parole officer with the Department of Corrections, issued a major violation report (the "violation report") against Wilson. The violation report states that Wilson had not made a restitution payment since July 11, 2013 and that he still owed restitution in the amount of $3, 241.27. Wilson was sent a letter requesting him to report to the probation office on March 26, 2015. Because he was in Maryland for a family emergency, Wilson contacted the probation office explaining that he would be late for his March 26, 2015 appointment. In response, the probation office told Wilson that he had never been issued a pass to leave the Commonwealth of Virginia to go to Maryland and told him to return to the probation office immediately. Wilson arrived at the probation office on March 26, 2015.

         On March 26, 2015, Wilson explained to the probation office that he had been giving his wife the money for his restitution payments and she had not been paying it. Additionally, Wilson told the probation office that he had no new criminal charges against him. However, after the probation officer ran a criminal records check, it was discovered that Wilson had been arrested on February 15, 2015 in Richmond County, Georgia for driving under the influence ("DUI") and driving without a license. Wilson had not been issued a pass from the probation office to go to Georgia. Finally, Wilson was screened for drugs during his March 26, 2015 probation office visit. The drug screen returned positive for marijuana and cocaine.

         A revocation hearing was held on October 13, 2015, at which time Wilson was present and was represented by appointed counsel. Wilson denied the allegations of the violation report. Probation Officer Erica Stump ("Stump"), who was acting as a substitute for Echols, testified that Wilson's conditions of probation did have a minimum expiration date of April 23, 2010, but that his probation term had been indefinitely extended on February 8, 2011 for failure to pay restitution. Stump testified that Wilson's only restitution payment since 2013 came on September 9, 2015 in the amount of $225 and that as of October 6, 2015, Wilson's restitution balance was $3, 016.27. Further, Stump testified that, on February 15, 2015, Wilson was arrested in Richmond County, Georgia for DUI and driving without a license and that he did not have permission from the probation office to travel to Georgia.[2]

         At the October 13, 2015 revocation hearing, Wilson made a motion to strike arguing that the October 26, 2005 sentencing order improperly delegated the circuit court's responsibility to set the restitution amount by ordering Wilson to "pay restitution in the amount to be determined by the Probation Officer." Wilson argued that the probation office did not have the authority to extend probation. The circuit court overruled Wilson's motion to strike stating that "to the extent the Order is incomplete with respect to a restitution figure, it may make the Order voidable, but not void."

          Ultimately, on October 13, 2015, the circuit court entered its revocation order finding Wilson in violation of the terms and conditions of his suspended sentence and imposed a sentence of five years and six months with four years and six months suspended. Thus, Wilson must serve twelve months' imprisonment.[3] Notably, the circuit court did not revoke Wilson's suspended sentence for failure to pay restitution. Instead, the list of violations included (1) that Wilson failed to report an arrest within three days-the arrest cited was the Georgia DUI on February 15, 2015, (2) that he lied to the probation office on March 26, 2015 about ...


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