Hearsay admissible at revocation sentencing

The trial court properly admitted appellant’s 2010 probation violation report during the sentencing phase of his 2018 probation revocation hearing.

A relaxed standard applies for admitting hearsay during sentencing proceedings. The fact that appellant pleaded guilty to the 2010 violation and the minimal layers of hearsay in the report satisfy the “some-indicia-of-reliability” test, Blunt v. Commonwealth, 62 Va. App. 1 (2013).

Background

Appellant was convicted of financial crimes in 2003 and given a 20-year sentence with 14 years suspended. The suspension was conditioned on 20 years of good behavior.

Appellant was found to have violated the terms of his suspended sentence in 2010, 2014 and 2018. He appeals the 2018 violation, arguing that the 2010 probation violation report, authored by probation officer Sokol, and which the court referenced during sentencing at the 2018 hearing, was inadmissible hearsay.

Standards

“The appellant argues that the admission of the 2010 report in the 2018 proceeding was error. He asserts that although a defendant is entitled to less protection against the admission of testimonial hearsay at a revocation hearing than at a trial, he should nevertheless have been allowed some degree of confrontation.

“He suggests that the fact that he conceded at the 2010 hearing that he had violated the conditions of his suspended sentence, standing alone, was inadequate to establish the degree of reliability required to admit the 2010 report in the 2018 proceeding over his objection. …

“The appellant argues that the Fourteenth Amendment due process principles governing the admissibility of hearsay in criminal sentencing proceedings are the same as those governing the admissibility of hearsay in all stages of revocation proceedings.

“Although the overarching due process principles may be the same, the Court has previously rejected this attempt to equate the principles applicable in criminal sentencing proceedings with those applicable in the ‘assessment of wrongdoing’ portion of revocation proceedings. See, e.g., Blunt v. Commonwealth, 62 Va. App. 1, 9-11 (2013). …

“[W]e conclude that, like in a criminal prosecution, the standard for admitting hearsay in a revocation proceeding differs depending on whether the evidence is offered in what is essentially the assessment-of-wrongdoing (guilt) phase or the sentencing (penalty) phase. … We further hold that the standard for the admissibility of hearsay during what is clearly the sentencing portion of a revocation hearing can be no higher than the standard for a sentencing directly following a criminal conviction, during the penalty phase of a trial.”

Analysis

“[W]e analyze the admissibility of the 2010 report under the lower standard for admitting hearsay at sentencing. To be admissible in the penalty or sentencing phase, hearsay evidence must ‘bear some indicia of reliability.’ … In applying this standard, a trial court ‘may rely upon [not only] a defendant’s criminal record’ but also a variety of other categories of evidence. … Those other categories include ‘evidence of unadjudicated criminal activity’ and ‘hearsay contained in a probation report.’ … The prosecution is not required to corroborate ‘every detail’ of the hearsay to meet the necessary threshold. …

“This Court held in Wolfe v. Commonwealth, 37 Va. App. 136 (2001), that testimony from a probation officer containing multiple layers of hearsay satisfied the some-indicia-of-reliability test for admission at criminal sentencing.”

In Moses v. Commonwealth, 27 Va. App. 293 (1998), “police officers ‘received … statements’ from informants whom the officers reported to be ‘reliable,’ and they relayed those hearsay statements to a probation officer. … The probation officer then prepared an addendum to the presentence report that contained the hearsay statements that the informants made to the officers, and the trial judge admitted the addendum at sentencing. …

“This Court affirmed the admission of the addendum. … It did so ‘based on the trial court’s finding that the information from the confidential informants was “reliable due to corroboration from other sources and its particularity.”’ …

Here, like in Wolfe and Moses, the requisite some-indicia-of-reliability standard was met, and the 2010 probation violation report was properly admitted. While Wolfe involved direct testimony from a probation officer, that testimony contained multiple layers of hearsay from alleged crime victims. … Both Moses and this case involved written probation reports rather than live testimony, but the hearsay that they contained was received from other government officials. … In Moses, those officials were police officers who relayed an additional layer of hearsay information from confidential informants. …

“In the instant case, by contrast, to the extent that Sokol’s 2010 report contained an additional layer of hearsay, that information came not from informants but from other probation officers who either (a) spoke to the appellant or relatives he named as contacts or (b) were simply unable to reach the appellant using the contact information he had provided. …

“With regard to the appellant’s failed drug test, he admitted directly to the probation officer or her co-worker that he had recently used cocaine. Further, information about the pending new misdemeanor charges was directly available to the probation officer as part of her duties in monitoring the appellant’s compliance with the conditions of his probation, as well as through his criminal history record, which was separately admitted at the 2010 revocation hearing.

“Consequently, the 2010 report challenged by the appellant bore indicia of reliability at least equal to that of the evidence admitted in Wolfe and Moses.”

Affirmed.

Jenkins v. Commonwealth, Record No. 1428-18-4, Dec. 17, 2019. CAV (Decker) from Stafford Cir. Ct. (Levy). Cole Dadswell for appellant, Liam A. Curry for appellee. VLW 019-7-227, 13 pp. Published.