Virginia Lawyers Weekly VA Lawyers Weekly
The trial court’s determination that appellant violated the terms of his probation by being dishonest with his probation officer is affirmed.
Facts
Appellant was placed on supervised probation following his plea-based conviction of being a felon in possession of ammunition. His probation was subject to a number of conditions, including cooperating and being truthful with his probation officer (condition 6), a ban on ownership, use or transport of firearms (condition 9) and not leaving the commonwealth without permission from his probation officer (condition 10).
During a Jan. 24, 2017, hearing, appellant moved to modify conditions 9 and 10. He explained that he worked as a security guard and needed to possess, carry and transport a firearm. He sought to have condition 9 modified to allow employment-related use of firearms. He asked that condition 10 be modified to allow travel within 400 miles of his Maryland home without permission.
The court did not rule on the condition 9 request. As to condition 10, the court said appellant would have to report to the Arlington probation office, which would refer him to Maryland. The court deemed the 400-mile travel request “reasonable.” In a March 20, 2017, order, the court stated that the motion to amend condition 9 (firearms) and condition 10 was granted in part and denied in part. The order provided that appellant was to report to the Arlington probation office and could travel up to 400 miles for work without his probation officer’s approval.
In a May 1, 2017, order, the court amended the March 20 order to provide that the motion to amend condition 9 was denied and motion to amend condition 10 was granted. Two days later, appellant’s probation officer filed a major report violation.
The officer had instructed him to report on Feb. 21, 2017. He phoned instead and said he had been working as a security guard. Appellant appeared at a Feb. 27 meeting and provided the officer with a business card for K&K Security. The officer was unable to verify the company existed. Appellant also told the officer that conditions 9 and 10 did not apply to him.
Appellant was given instructions on how to report to Maryland probation officials. However, Maryland would not accept him because of his conviction and that appellant “carries a firearm for his job which is illegal in Maryland.
The court found that appellant violated his probation. At a sentencing hearing and on a motion to reopen evidence, the trial court determined that while appellant once had a weapon, he no longer did. But the court also found that appellant had been dishonest. The court found appellant had violated his probation but imposed no sanction.
Discussion
“Appellant argues that the trial court relied upon its May 1, 2017 order as a basis for finding him in violation of his probation and that to do so was error because that order was void ab initio. Appellant contends that the order did not correct an error in the March 30, 2017 order, as permitted by Code § 8.01-428(B).
“Rather, it ‘added a ruling to the case that was never made at the January 24 hearing’ by stating that the court had ruled on and denied his motion to amend Condition 9 of his probation – the firearm condition. Thus, appellant argues, the trial court lacked jurisdiction to enter the order pursuant to Code § 8.01-428(B) and then erred when it ‘relied on the May 1 order in finding [appellant] in violation.’ …
“We are unpersuaded by appellant’s argument, because it is based upon a false premise: that the trial court found appellant in violation of the terms of his probation based upon a violation of Condition 9, which prohibited appellant from using, owning, possessing, transporting, or carrying a firearm.
“Although the trial court concluded at the May 26, 2017 hearing that appellant had violated Condition 9 by carrying a firearm for his work, after receiving further evidence at the September 8, 2017 hearing, the court stated that it no longer ‘believe[d] [that appellant] had a weapon.’
“Thus, the trial court ultimately did not find appellant in violation of his probation based upon his failure to comply with Condition 9. Rather, the trial court found appellant in violation … Condition 6, which required appellant to follow his probation officer’s instructions and ‘be truthful, cooperative, and report as instructed.’ …
“[A]ppellant told his Virginia probation officer that he possessed a court order indicating that probation Conditions 9 and 10 ‘did not apply to him.’ He also provided the officer with a business card for ‘K & K Security and Enterprises,’ an entity whose existence the officer was unable to verify.
“The record further demonstrates that in addition to lacking candor with his probation officer, appellant also failed to comply with the other provisions of Condition 6 – that he report as instructed and be cooperative.
“At the January 24, 2017 plea hearing, the trial court instructed appellant to ‘report to the [Virginia] probation office’ so that he could then be ‘refer[red] … to Maryland.’ As noted in the major violation report, appellant’s probation officer wrote to him three weeks later and instructed him to report to her on February 21, 2017 ‘since he did not report after sentencing.’
“Appellant did not appear at the probation office on that date, but instead called his probation officer. When she asked him why he had not reported to the office, appellant ‘did not have a response.’ Based upon this evidence, the record fairly supports the trial court’s finding that appellant violated the conditions of his probation based upon his failure to comply with Condition 6.
“That condition, memorialized in the court’s March 20, 2017 order, was not implicated in the court’s May 1, 2017 order, which amended only that portion of the previous order which spoke to appellant’s motions to amend probation Conditions 9 and 10. Thus, not having found a violation by appellant of Condition 9, the trial court did not rely on the May 1, 2017 order in the manner alleged.”
Affirmed.
Kenan v. Commonwealth, Record No. 1592-17-4, Jan. 7, 2020. CAV (Malveaux) from Arlington Cir. Ct. (DiMatteo). Lauren Brice for appellant, A. Ann Lloyd for appellee. VLW 020-7-001, 9 pp. Unpublished.
