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Court Upholds Revocation of Suspended Sentence

A defendant cannot overturn revocation of his suspended sentence with a collateral attack on his underlying conviction under Va. Code § 18.2-361(A) for consensual sodomy with juveniles, and the Court of Appeals says the trial court did not err in admitting hearsay evidence of defendant’s violation of the terms of his suspended sentence by not observing curfew and consuming alcohol.

On appeal, defendant collaterally attacks his underlying conviction based on Lawrence v. Texas, 539 U.S. 558 (2005), and MacDonald v. Moose, 710 F.3d 154 (4th Cir. 2013). He also argues that the trial court erred in allowing hearsay evidence in violation of his Sixth Amendment right of confrontation, in failing to dismiss the show cause proceeding on due process grounds under Gagnon v. Carpelli, 411 U.S. 778 (1973), and finding the evidence sufficient to prove defendant had violated the terms and conditions of his probation.

Both the 4th Circuit and the Virginia Supreme Court have interpreted the constitutionality of Va. Code § 18.2-361(A). Defendant asserts that this court should adopt the 4th Circuit ruling that Code § 18.2-361(A) is facially unconstitutional, rejecting the contrary decision of the Supreme Court of Virginia.

Defendant urges that the Supreme Court’s decision in McDonald v. Commonwealth, 274 Va. 249 (2007), should yield to the 4th Circuit’s ruling in MacDonald, which is a proposition this court cannot adopt. The Supreme Court in McDonald upheld the constitutionality of Code § 18.2-361(A), which binds this court. Therefore, defendant’s underyling charges are not void and may not be collaterally attacked. Since no collateral attack is permissible, the commonwealth’s assertion that the issue is barred by res judicata becomes moot.

Defendant next asserts the trial court erred by allowing hearsay evidence against him at his revocation hearing. The record establishes that the trial court made a finding of good cause and reliability that was supported by the evidence. The trial court relied on statements from several individuals corroborating that defendant was out past curfew and intoxicated. Evidence consisting of a report from one social worker, a government official to another, is evidence of reliability and possesses substantial guarantees of trustworthiness. The trial judge specifically explained that the social workers’ statements were corroborated by defendant’s roommate’s failure to vouch for defendant and the roommate’s statement implicating defendant. The statements bear even greater indicia of reliability given that defendant requested that the roommate be contacted to corroborate defendant’s story.

This court denies defendant’s claim that the trial court erred in denying his rights under the

Sixth Amendment by allowing hearsay evidence because the evidence was sufficiently reliable. Upon this court’s determination that the admission of hearsay evidence was not error, defendant’s claim regarding the insufficiency of the evidence fails.

Finally, the absence of a preliminary hearing at this juncture is wholly irrelevant. Upon completion of the full evidentiary hearing the issue became moot; therefore defendant’s claim to revisit the issues addressed in Gagnon is denied.

Saunders v. Commonwealth (Huff) No. 1630-12-2, Feb. 4, 2014; Chesterfield County Cir.Ct. (Burgess) Gregory R. Sheldon for appellant; Eugene Murphy, Sr. AAG, for appellee. VLW 014-7-022, 14 pp.

VLW 014-7-022

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