Wiley v. Commonwealth

JOSEPH WILEY

v.COMMONWEALTH OF VIRGINIA

Record No. 1136-12-4

COURT OF APPEALS OF VIRGINIA

JULY 9, 2013

UNPUBLISHED

Present: Chief Judge Felton, Judges Humphreys and Kelsey

Argued by teleconference

MEMORANDUM OPINION^* BY

JUDGE D. ARTHUR KELSEY

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY

Joanne F. Alper, Judge

Helen Randolph, Assistant Public Defender (Office of the Public Defender, on briefs), for appellant.

David M. Uberman, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

After the trial court revoked Joseph Wiley's suspended sentences at his third probation violation hearing, Wiley requested permission to "say something." App. at 122. The trial court explained that it had already ruled and ended the proceeding without hearing further from Wiley. On appeal, Wiley contends the court violated his right to allocute. He also challenges the imposition of his suspended sentences as an abuse of discretion. We hold the trial court erred in neither regard.

I.

In 2007, Wiley pled guilty to felony shoplifting in violation of Code § 18.2-103 and possession of burglary tools in violation of Code § 18.2-94. The trial court sentenced him to concurrent terms of three years in prison, of which all but four months were suspended. Within four months of the sentencing hearing, Wiley was again arrested for felony shoplifting from thesame store he had previously been convicted of shoplifting from. In 2008, Wiley pled guilty and the trial court sentenced him to five years with all but twelve months suspended on the new charge. The court revoked and resuspended the previous sentences imposed in 2007.

In 2010, the trial court found Wiley had violated the terms of his probation by not keeping in regular contact with his probation officer. At the revocation hearing, the court engaged Wiley in a lengthy colloquy concerning the court's expectations. At the end of this colloquy, the court sought to confirm Wiley's understanding of his responsibilities:

Court: So you understand -- but let me ask you this, Mr. Wiley: You do understand once you are released what you need to do to avoid coming back here?

Wiley: I know exactly what I need to do.

Court: Because one misunderstanding --

Wiley: I know, exactly.

Court: -- but next time, you know --

Wiley: Right.

Court: -- it's going to be a lot harder.

Wiley: I know, exactly.

Court: Okay. That's all I need to know.

App. at 106. The trial court then entered an order revoking and resuspending his several terms of incarceration.

In 2011, Wiley's probation officer reported that Wiley failed to keep in contact with his probation officer, moved out of state without the permission of the probation officer, failed to appear on outstanding warrants issued by the Arlington County General District Court, and failed to provide proof that he attended substance abuse counseling. "This is Mr. Wiley's thirdviolation of probation," the probation officer stated. Id. at 2. The probation officer concluded that Wiley's "disregard for supervision makes him a risk to public safety" because he "is not amenable to Community Supervision." Id.

At the revocation hearing in May 2012, the court heard extensive proffers from Wiley's counsel and the prosecutor. Wiley's counsel did not ask to present evidence or to call Wiley to testify on his own behalf. After hearing the proffers, the court stated:

I've been dealing with this case for a number of years now, and it seems like we keep getting the same issue with Mr. Wiley. That is, you know, basically catch me if you can. . . . [B]ased upon his entire history with this case, and the probation officer's concerns as well, I do not think he's amenable for supervision. I think if I sent him out of here with a stern warning, as I did the last time; and I'm sure I said for the second violation, one more violation and that's it. The bottom line is the same thing would happen again, and I'm not going to take any more of the probation officer's time or taxpayers' expenses for that.

Id. at 119-21. The court then revoked Wiley's remaining suspended sentences and ordered that they be served in full. Immediately after the court ruled, Wiley asked, "Can I say something?" Id. at 122. The court responded, "I've already made my decision, sir." Id. Wiley's counsel did not object to the court's response, nor did he proffer what Wiley would have said if he had been allowed speak.

II.

On appeal, Wiley makes two arguments. He first contends that both constitutional due process principles and Code § 19.2-298 guarantee him a right to allocution in probation revocation hearings. See Appellant's Br. at 3. The trial court violated that right, Wiley asserts, when it refused to allow him to "say something," App. at 122, after the court ruled on his probation violation. Second, Wiley asserts that the court abused its discretion by revoking the balance of his suspended sentences for violating the terms of probation. See Appellant's Br. at 3.

A. ALLOCUTION & PROBATION REVOCATION

Allocution permits a criminal defendant an opportunity to speak his peace just before a court imposes his sentence. The common law right of allocution developed in England during an era in which a criminal defendant could not testify in his own behalf. See McGautha v. California, 402 U.S. 183, 217 n.20 (1971). In 18th century common law courts, "[a]llocution therefore afforded a convicted defendant with his only opportunity to address the court." Green v. French, 143 F.3d 865, 881 (4th Cir. 1998), abrogated on other grounds by Williams v. Taylor, 529 U.S. 362 (2000). The ameliorating purpose of allocution has far less impact today given a defendant's right to testify in his own behalf, both during the trial and sentencing stages of a criminal proceeding.¹ But even if "the common law reasons or uses for allocution have long since disappeared," Paul W. Barrett, Allocution, 9 Mo. L. Rev. 232, 254 (1944), the right of allocation survives in many states either in its common law form or by statute.

Under settled law, a trial judge's failure to invite a presentence allocution "is an error which is neither jurisdictional nor constitutional. It is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428 (1962). Like a multitude of other courts, we have taken the point further by concluding "there is no constitutional right toan allocution before sentencing." Montgomery v. Commonwealth, 56 Va. App. 695, 700, 696 S.E.2d 261, 263 (2010) (citing Hill, 368 U.S. at 428); see also United States v. Hoffman, 707 F.3d 929, 937 (8th Cir. 2013) (holding allocution "is not a constitutional right"); Green, 143 F.3d at 880-81 (citing "many lower courts" which reject the claim of a "constitutional right to allocution").²

Thus, to the extent a defendant has a right to allocute, it must arise either under the common law or by statute. Wiley says it arises under both and applies to a probation revocation proceeding. We are skeptical of these assertions.

Suspended sentences did not exist under English common law at the time of the Founding of our Commonwealth, Taylor v. Commonwealth, 58 Va. App. 435, 444-45, 710 S.E.2d 518, 522-23 (2011), and, of course, neither did probation revocation proceedings. The common law recognized the right of allocution only at the time of the initial sentencing.³ Perhaps the commonlaw context could still could be analogized to modern revocation hearings, but the analogy would be weak at best. A revocation proceeding is hybrid in nature. While it has some attributes of a criminal proceeding, it "is not a trial for the commission of a new criminal offense," Slayton v. Commonwealth, 185 Va. 357, 366, 38 S.E.2d 479, 483 (1946), and thus "not entitled to the same due process protections afforded a defendant in a criminal trial," Downey v. Commonwealth, 59 Va. App. 13, 20, 716 S.E.2d 472, 475 (2011) (internal quotation marks and citation omitted).

Maybe so, Wiley counters, but he still can claim a statutory right of allocution under Code § 19.2-298. That statute requires allocution before "pronouncing the sentence" in criminal cases in which the defendant has been found guilty. By its own terms, however, Code § 19.2-298 does not mention probation violation hearings. On the contrary, Code § 19.2-306, entitled "Revocation of suspension of sentence and probation," does mention probation violation hearings, but makes no reference to allocution. Wiley argues the general language of Code § 19.2-298, recognizing allocution, trumps the more specific language of Code § 19.2-306, which is silent on the subject. The Commonwealth, on the other hand, contends Code § 19.2-306's silence, given its role as the more specific statute governing revocations, trumps the express grant of allocution rights recognized by the general language of Code § 19.2-298.

While these issues are interesting and important, we need not resolve them in this case. We prefer instead to adhere to our traditional practice of relying upon "'the best and narrowestground available' for our decision," Morris v. City of Va. Beach, 58 Va. App. 173, 180, 707 S.E.2d 479, 482 (2011) (quoting Armstead v. Commonwealth, 56 Va. App. 569, 576, 695 S.E.2d 561, 564 (2010)), and of resolving cases "on what we conceive to be the determinative points," id. (quoting Justice Herbert B. Gregory, Shorter Judicial Opinions, 34 Va. L. Rev. 362, 365 (1948)). "This approach encourages judicial self-restraint by avoiding the resolution of broad, reasonably debatable legal issues when narrower, less debatable legal issues fully dispose of the appeal before the court." Foltz v. Commonwealth, 58 Va. App. 107, 114, 706 S.E.2d 914, 918 (2011) (en banc), aff'd on other grounds, 284 Va. 467, 732 S.E.2d 4 (2012).

This principle is particularly important here because — even if Wiley had a common law or statutory right to allocution — we must...