Burford v. Commonwealth

78 Va.App. 170

890 S.E.2d 645

Jason Lamont BURFORD v. COMMONWEALTH of Virginia

Record No. 1275-22-4

Court of Appeals of Virginia, Fredericksburg.

August 8, 2023

Brett P. Blobaum, Senior Appellate Attorney (Virginia Indigent Defense Commission, on briefs), for appellant.

Collin C. Crookenden, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges Beales, O'Brien and Athey

OPINION BY JUDGE CLIFFORD L. ATHEY, JR.

Jason Lamont Burford ("Burford") appeals from a decision rendered in the Circuit Court of Stafford County ("circuit court") revoking his previously suspended sentences, imposing an active sentence of six months in jail, and resuspending the remaining balance left for five years. Burford contends, on appeal, that the circuit court erred by: (1) determining he violated a condition of his previously suspended sentences, (2) refusing to find that the violation was but a "first technical violation" pursuant to Code § 19.2-306.1(A), and (3) sentencing him to an active sentence "incommensurate" with his conduct. Finding no error, we affirm the circuit court's judgment.

I. BACKGROUND

In March 2021, the Stafford County General District Court ("district court") convicted Burford of sexual battery, assault and battery, and stalking before sentencing him to 36 months in jail with 30 months suspended for five years. Per the conviction orders entered by the district court, Burford was required to report to the "local community-based probation agency" ("CBP") and his suspended sentence of 30 months was conditioned on his good behavior, no contact with the victim, "a CBP referral for mental health eval[uation]," and completion of "all recommendations."

In May 2021, Burford finished his term of active incarceration before meeting with Patricia Thomas, "the intake officer" for Stafford County's community-based probation program. As part of the initial meeting, the intake officer reviewed a document with Burford that detailed both general and specific terms and conditions of his probation. For example, she explained to Burford that he was required to regularly meet with his designated probation officer, David Gonier ("Officer Gonier"). The intake officer also told Burford that he was required to complete the court-ordered mental health evaluation with Daybreak Counseling and comply with any subsequent recommendations arising out of the mental health evaluation. After the intake officer explained each of the conditions to him, Burford signed the document confirming that he understood the terms and conditions without asking any questions or displaying any confusion. The intake officer also provided Burford with a card listing Officer Gonier's contact information and informed him that he had an initial telephone appointment scheduled with Officer Gonier on June 8, 2021. Following his initial appointment with Officer Gonier, Burford completed the court-ordered mental health evaluation with Daybreak Counseling, after which "it was determined that he [also] needed to complete a psychosexual evaluation." Burford's trial counsel acknowledged that "[t]his recommendation [for a psychosexual evaluation] ... did not come from Mr. Gonier, [and] did not come from community[-]based probation."

Officer Gonier subsequently transferred Burford's probation oversight to Henrico County because that was where Burford said he would be residing, and on August 31, 2021, Henrico probation officer Dalee Thomas ("Officer Thomas") was tasked with supervising Burford's compliance with the terms and conditions of his probation. During a phone call, Burford advised Officer Thomas that he was on "unsupervised probation," and as a result, did not have to comply with his instructions. Officer Thomas repeatedly explained to Burford that the district court had referred him to local, community-based probation and that he needed to be supervised while he completed a psychosexual evaluation and any subsequent treatment indicated by the evaluator. In response, Burford "raised [his] voice" and angrily insisted that Officer Thomas was "wrong" because the district court judge had told him he was on unsupervised probation. After Officer Thomas suggested that Burford confer with his attorney about the district court's order, Burford "hung up the phone." Following that phone call, Burford failed to contact Officer Thomas again, missed two scheduled appointments with him in September and October of 2021, and never completed the recommended psychosexual evaluation.

On October 29, 2021, Officer Gonier reported to the district court that Burford had missed appointments with his probation officer and had failed to complete the recommended psychosexual evaluation. As a result, on November 15, 2021, the district court issued a show cause summons for Burford for violating the terms and conditions of his probation and ordering him to show cause why his previously suspended sentences in each of his prior convictions should not be revoked. On January 12, 2022, following a hearing, the district court found that Burford had violated the conditions of his suspended sentences, revoked the balance of his suspended sentences in each case, ordered him to serve six months of active incarceration, and resuspended the twenty-four-month balance of his sentences. Burford appealed that decision to the circuit court for a de novo probation revocation hearing.

During the probation revocation hearing in the circuit court, Burford proffered a printed summary from the district court's case information website which indicated he was on "unsupervised probation" for his three convictions. Based thereon, Burford argued that the Commonwealth had failed to show "good cause" to revoke his suspended sentences. Burford also continued to maintain that his belief that he was on "unsupervised probation," and therefore not obligated to follow his probation officers’ instructions, was reasonable given the printed summary on the general district court's website. He also maintained that it was not "unreasonable to refuse" to complete the recommended psychosexual evaluation. The Commonwealth countered that the district court's orders unequivocally required Burford to complete a mental health evaluation and comply with any recommendations. The Commonwealth further emphasized that Burford had refused to complete the recommended psychosexual evaluation despite his probation officers’ clear instructions.

Following the hearing, the circuit court found that the district court's orders explicitly conditioned Burford's suspended sentences on his completion of a mental health evaluation through community probation and compliance with any subsequent recommendations. The circuit court also found that the intake officer had reviewed each of the terms and conditions of Burford's probation with him following his release from incarceration, and Burford did not contest that he was on supervised probation at that time. Thus, the circuit court concluded that Burford had violated the conditions of his suspended sentences by refusing to complete the psychosexual evaluation and further violated his probation by missing two appointments with his probation officer.

During the sentencing phase of the hearing, the Commonwealth asked the circuit court to reimpose at least twelve months in jail based on the underlying crimes, which were serious and concerning. The Commonwealth also cited Burford's angry refusal to comply with the district court's explicit conditions of his suspended sentences. Burford contended that the violation was only a first technical violation and requested that any sentence imposed by the circuit court be consistent with Code § 19.2-306.1(C). In the alternative, Burford argued, in mitigation, that he had been on bond for seven months without incident or concerning behavior. He also acknowledged that he was mistaken regarding the nature of his probation and promised to comply in the future.

The circuit court held that Burford's failure to complete the psychosexual evaluation was not a technical violation of his probation but was instead a violation of a condition of his suspended sentences. The circuit court then revoked the balance of his previously suspended sentences and resuspended the balance of the suspended sentences with the exception of six months which Burford was required to serve. The court also conditioned the resuspended sentences on Burford's successful completion of supervised probation under the same conditions previously imposed. In reaching its decision, the circuit court rejected Burford's claim that he mistakenly believed he was not required to complete the psychosexual evaluation because he was on unsupervised probation. The circuit court also specifically found that Burford had angrily and disrespectfully disregarded his probation officer's instructions, abruptly ended the call with his probation officer, refused to clarify any misunderstanding with his attorney, and avoided contact with his probation officer. Burford appealed.

II. ANALYSIS

A. Standard of Review

"On appeal, ‘[w]e view the evidence received at [a] revocation hearing in the light most favorable to the Commonwealth, as the prevailing party, including all reasonable and legitimate inferences that may properly be drawn from it.’ " Green v. Commonwealth , 75 Va. App. 69, 76, 873 S.E.2d 96 (2022) (alterations in original) (internal quotation marks omitted) (quoting Johnson v. Commonwealth , 296 Va. 266, 274, 819 S.E.2d 425 (2018) ). " ‘[T]he trial court's findings of fact and judgment will not be reversed unless there is a clear showing of abuse of discretion.’ " Id. (internal quotation marks omitted) (quoting Jacobs v. Commonwealth , 61 Va. App. 529, 535, 738 S.E.2d 519 (2013) ). "However, ‘[u]nder well-established principles, an issue of statutory interpretation is a pure question of law which we review de novo.’ " Id. (alteration in original) (quoting Conyers...