Campbell v. Commonwealth

1

ERIC DEMETRIUS CAMPBELL v. COMMONWEALTH OF VIRGINIA

No. 0791-22-4

Court of Appeals of Virginia

April 25, 2023

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY Tracy C. Hudson Judge

Kelsey Bulger, Senior Appellate Attorney (Virginia Indigent Defense Commission, on briefs), for appellant.

Jason D. Reed, Assistant Attorney General (Jason S. Miyares Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges AtLee and Friedman

MEMORANDUM OPINION ^[*]

FRANK K. FRIEDMAN JUDGE

This appeal requires us to determine what special conditions of probation may be imposed upon a probationer who has never been convicted of a sexual offense. Eric Demetrius Campbell challenges the trial court's ruling permitting his probation officer to impose sex offender special conditions of probation on him despite the fact that he has never been convicted of a sexual offense. He also argues that the trial court erred in concluding that sex offender probation conditions were reasonable under the circumstances. For the following reasons, and under the unique circumstances of this case, we reverse the trial court's judgment and remand the matter for further proceedings.

BACKGROUND^[1]

Upon his guilty plea under North Carolina v. Alford, 400 U.S. 25 (1970), the trial court convicted Campbell for two counts of assault and battery upon a family member as a third or subsequent offense within 20 years. The trial court sentenced Campbell to a total of 10 years' imprisonment with 7 years and 11 months suspended and 4 years of probation. The sentencing order required him to comply with "all the rules and requirements set by [his] [p]robation [o]fficer" and with all terms of his probation contract.

On March 24, 2020, after his release from incarceration Campbell signed an agreement with the probation and parole office to "the standard eleven conditions of [probation] supervision." Condition 6 required Campbell to "follow the [p]robation and [p]arole [o]fficer's instructions" and "be truthful, cooperative and report as instructed." On April 7, 2020, the probation officer presented Campbell with a separate document entitled "Sex Offender Special Instructions." The document is a Department of Corrections (DOC) pre-printed form that lists 30 enumerated conditions; the first 24 of which include boxes, every one of which was marked in the document proffered to Campbell for his signature. Instructions 4, 6 8-12, 14-16, and 24 also had a handwritten star next to them. Campbell declined to sign or agree to the conditions.

Campbell, by counsel, subsequently moved the trial court to remove what he characterized as unreasonable probation conditions, namely the sex offender probation conditions imposed by his probation officer. Campbell stated that, when he reported to probation as instructed, he was presented with a list of additional conditions that are "generally imposed on sex offenders by order of the court." Campbell maintained that he had "never been convicted of any sex offense at all," so the additional conditions were unreasonable as applied to him.

In a letter dated March 15, 2021, to the trial court, Senior Probation and Parole Officer Rachel Taylor reported that Campbell was being supervised as a sex offender under DOC Operating Procedure 735.3, which she stated governs "Supervision of Sex Offenders in Community Corrections." The DOC procedure "provides for intensive supervision of the most serious, high-risk sex offenders," whom DOC defines as probationers who are "required to register as a sex offender," have "a sex offense in their criminal history," or have been "convicted of an offense of a sexual nature." The letter stated that the original rape charge lodged against Campbell, though eventually amended to domestic assault and battery as a third offense, was "an essential component underlying the Instant Offense[.]" Taylor stated that, upon referral for a psychosexual evaluation, Campbell was determined to be "[a]bove [a]verage [r]isk for sexual offending." Taylor reported that Campbell was referred to the Sex Offender Awareness Program, which he had attended regularly. In addition, Campbell had successfully completed an anger management program. Taylor recommended that Campbell be required to "comply with all standards of Sex Offender Probation Supervision to include Sex Offender Treatment and routine polygraph testing."

At an April 2, 2021 hearing on Campbell's motion to remove the probation conditions, he argued that the trial court had not delegated to the probation and parole office the authority to impose sexual offender special conditions. Specifically, Campbell contended that he had not been convicted for any sexual offense and that he would not accept responsibility for any sex offense, which would be part of sex offender treatment required under the proposed conditions. Campbell asserted that the sex offender special conditions were "totally inappropriate" considering the manner in which the case "ultimately [was] resolved." He noted that, while the trial court had "imposed special conditions in this case," the Commonwealth had not requested sex offender conditions and the court had not ordered them.

The Commonwealth argued that the probation officer's authority to impose sex offender special conditions was derived from "their statutory supervising authority"^[2] and the trial court's "inherent authority" to delegate "certain aspects of probation." In the Commonwealth's view, the "statutory supervising authority" and the delegated authority from the trial court permitted the probation officer to "look at the nature and circumstances of what was alleged, any sort of proffer that was made in the [pre-sentence investigation report], any allegations made by a complaining witness, and any information that's derived from the accused during the course of their supervision" and impose sex offender conditions. Moreover, under Code § 19.2-304 the trial court had the authority to revoke or modify the probation conditions upon proper hearing and notice. The Commonwealth asserted that, in its proffer of evidence at the hearing upon Campbell's Alford guilty plea, it had advised the trial court that Campbell sexually assaulted the complaining witness during the incident.^[3]

The trial court acknowledged that the initial charges against Campbell included a rape charge. The trial court concluded that, through Condition 6 of the probation contract, it delegated to the probation and parole office the authority to impose sex offender conditions if the conditions were reasonable. The trial court postponed any decision about whether imposing sex offender conditions was reasonable under the circumstances.

Campbell also asked the trial court to expunge his criminal record of "everything except for the things for which he was convicted." Thus, the record of conviction would be only for the two domestic assault and battery, third or subsequent offense, convictions. The trial court granted Campbell's petition to expunge his record of any reference to the charges that were amended or nolle prossed because "he should [not] be saddled with" such charges on his record. Subsequently, the record in the case, other than the Commonwealth's version of events in the pre-sentence investigation report,^[4] was redacted to remove references to the unadjudicated charges.

At the hearing to determine the reasonableness of the sex offender probation conditions, the Commonwealth introduced evidence that on April 7, 2020, Probation and Parole Officer Andrea McDowell presented Campbell with "Sex Offender Special Instructions," which included conditions that he have no contact with anyone under the age of 18, refrain from use of social networking, complete a sex offender treatment program, and inform those with whom he has a significant relationship of his "sexual offending behavior as directed by" his supervising officer. Campbell did not sign the document setting forth the special instructions for his probation.^[5] As noted above, the document McDowell presented to Campbell had the box marked for every condition listed on the pre-printed form.

Taylor testified that she was Campbell's supervising probation officer for about three months in 2020 after she took over his supervision from McDowell. Taylor visited Campbell's home on September 16, 2020, to meet with him. Due to restrictions related to the COVID-19 pandemic, Taylor phoned Campbell to have him come out of the house to verify his address. Campbell agreed to come outside, but then did not appear. Concerned for Campbell's safety as well as her own, Taylor waited outside in her vehicle, but spoke with Campbell by phone.

Eventually, Campbell appeared in a truck, got out of the vehicle, and fell against the side of the cab. He made a series of statements indicating he did not need supervision but that he wanted to talk to Taylor. He said he was not "flirting with" Taylor and asked her to move her car into the driveway. Campbell's conduct made Taylor "extremely uneasy, given the fact that he was trying to disarm [her] with saying nice things." Taylor remained on the phone with Campbell for a period of time until she drove away and ended the contact. From his demeanor and comments, Taylor was concerned that Campbell was intoxicated or "having some kind of a stroke." She contacted the police to perform a welfare check on Campbell. When Taylor called Campbell the following day, he said that he did not recall her visit to the home.

Taylor stated that the probation office's standard procedure was to assess probationers for sex offender treatment if there was "a sexual allegation in the series of events of the crime" even if there was no conviction for a sex offense. The purpose of this...