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Jenkins v. Commonwealth

Court of Appeals of Virginia

December 17, 2019

TORRANCE JUAREZ JENKINS
v.
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF STAFFORD COUNTY Michael E. Levy, Judge

          Cole Dadswell, Assistant Public Defender, for appellant.

          Liam A. Curry, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Chief Judge Decker, Judges Humphreys and Russell Argued at Leesburg, Virginia

          OPINION

          MARLA GRAFF DECKER CHIEF JUDGE

         Torrance Juarez Jenkins appeals a ruling of the circuit court revoking his suspended sentence for two theft offenses.[1] He contends that the trial court violated his due process rights by admitting testimonial hearsay contained in a report. We hold that the court's admission of the report for sentencing purposes in the instant proceeding was not error. Consequently, we affirm the revocation of the suspended portion of the appellant's sentence.

         I. BACKGROUND[2]

         The appellant was convicted in 2003 for obtaining money by false pretenses and uttering a forged check, in violation of Code §§ 18.2-172 and -178. He was sentenced to a total of twenty years in prison with fourteen years suspended. The suspension was conditioned, among other things, on twenty years of good behavior and an indefinite period of supervised probation. In 2010, 2014, and 2018, the appellant was found to have violated the terms and conditions of his suspended sentence. It is from the 2018 violation that he appeals, and he challenges the admission of evidence from the 2010 proceeding in the 2018 revocation hearing.

         A. The 2010 Revocation Proceeding

         In a 2009 letter, Susan Sokol, a senior probation officer for District 21 in Fredericksburg, notified the Commonwealth's Attorney that she sought the issuance of a show cause order against the appellant for violating his probation. In her 2009 letter and a 2010 addendum (collectively the 2010 report), Sokol notified the court that the appellant violated his probation in three different ways.

         First, the appellant tested positive for cocaine use in April 2009, and he admitted having used the drug four days earlier. Second, the appellant absconded from supervision. Sokol reported that after his April 2009 visit to the District 21 probation office, she worked with District 32 to make a home contact at the address that the appellant had provided for himself in Henrico County. Sokol detailed some of the specific efforts that she personally took to try to reach him, as well as "notice" provided by District 32 "that they attempted a[] home contact" in July 2009 and were told by the appellant's aunt that he no longer lived there. Sokol then checked the local hospital, as well as the Virginia jails, and determined that his "whereabouts [were] unknown." Sokol concluded that the appellant had violated the condition of his suspended sentence that he could "not abscond from supervision" and would be "considered an absconder when [his] whereabouts [were] no longer known to [his] supervising officer." Third, Sokol related that the appellant had been arrested on new misdemeanor charges. The existence of these new charges was confirmed by the appellant's criminal history record.

         In the 2010 revocation proceeding, the appellant "pleaded guilty" to "having violated the terms and conditions of . . . [the] suspension." The court accepted the appellant's acknowledgment of guilt. After receiving evidence and hearing argument, it revoked his previously suspended fourteen-year sentence and resuspended thirteen years, giving him a year to serve.

         B. The 2014 Revocation Proceeding

         In 2014, the court held a second revocation proceeding based on a new violation. After hearing evidence and argument, the court found that the appellant had again violated the terms of his suspended sentence. It revoked his previously suspended thirteen-year sentence, imposed one year, and resuspended the remaining twelve years.

         C. The 2018 Revocation Proceeding

         The court held a third revocation hearing in 2018. The appellant "conced[ed] the violation," and the court accepted his "plea." The prosecutor then offered, specifically as "evidence . . . on the issue of sentence," the appellant's criminal history report and his 2010 probation violation report.[3] (Emphasis added). The appellant objected to the admission of the report on testimonial hearsay grounds. He also argued that considering the 2010 report again in the 2018 proceeding ...


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