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The Court of Appeals Issues One Published Opinion – But why?

by | May 18, 2021 | The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog |

Today the Court of Appeals released one published opinion.  The question to my mind is “Why?”  Richard Roosevelt Hill v. Commonwealth of Virginia addresses what I thought was an issue of settled law – whether a circuit court retains jurisdiction to revoke a suspended sentence for violation of the terms of probation until the period of probation ends.  Well, the answer is it does, despite the creative effort of Hill’s attorney to assert that a court can have jurisdiction over a probation violation, but lack jurisdiction to do anything about it.

For those unfamiliar with the criminal process, allow me to provide a brief explanation.  When a court imposes a criminal sentence it often (but not always) suspends all or a portion of the sentence.  In doing so, it will usually impose terms on the defendant, which must be followed — this what we usually thing of a “probation.”  When a defendant fails to abide by the terms, the probation office can inform the Commonwealth, which can issue a show cause requiring the defendant to court and, if the court finds a violation has occurred, it can revoke the suspended sentence and send the defendant off to the iron-bar hotel (typically, courts will resuspend a portion of the sentence or sometimes simply give the defendant a strong admonition to return to the straight and narrow).  A famous judge of the Roanoke Valley called this the “‘splain why docket” as in “‘splain why I shouldn’t send you back to jail.”

In Hill’s case, he was convicted in March of 2015 of attempted unlawful wounding and sentenced to 3 years with all but six months suspended.  He was also placed on supervised probation for three years from the date released from confinement, which turned out to be December 16, 2016.  Wait.  What?  How did a six months to serve stretch into more than a year-and-half?  Well, it so happens that Hill had already “served” his six months while awaiting trial and, had in fact been released from jail a week before his sentencing.  Released, however, is not quite accurate, because he was turned over to federal authorities to serve a sentence imposed in another case (the opinion does not provide details).

After his release from federal prison, Hill ran afoul of the terms of his probation in 2018 before the three years were up and was sent back to jail for another year (leaving one-and-a-half years still suspended) and was placed on probation for two years after his release. Hill got out again and violated the terms of his probation again in 2020.  This time the court ordered Hill to serve the remaining full stretch – 18 months.

Well, Hill was having none of that, because, applying what the Court of Appeals refers to as a “creative interpretation” of the original sentencing order, in Hill’s view the term of suspension was shorter than the term of probation.  Hill argued in the circuit court and again in the Court of Appeals that the three years term of probation began to run on the date of the order, not the date of his release from the federal poky.  Moreover, he contended that the order failed to state the length of the period suspension (that is, for how long the two-and-a-half years of the suspended sentence would be hanging over his head).  Hill is technically correct that the length of the probation and the length of the suspension are not necessarily concurrent (and if not expressly stated, the length of the suspension is set by statute).  Because the 2015 order was silent as to the latter and the 2018 order likewise did not expressly state an additional period of suspension in addition to the additional period of probation, by the time of his 2020 violation of probation, Hill contended that the period of suspension had ended (actually back in 2018 while he was serving the additional year).

Reviewing the statutory authority of circuit courts to suspend sentences and impose terms of probation, the Court of Appeals rejects Hill’s “novel argument” by finding that the 2018 order plainly extended the time of probation and, therefore, the time of suspension as well.  The Court also rejected Hill’s assertion that the 2015 order went into effect on being entered and not upon his release from federal custody but noted that this did not impact its analysis of the issue since the 2018 order was timely under either theory.

Now here is where we reach the “why publish” part of the opinion.  In its concluding section of analysis, the Court notes that it is settled law that “[t]o be effective, probation must be concurrent with a coordinate term of suspension of sentence. Hartless v. Commonwealth, 29 Va. App. 172, 175 (1999).”  This is so because “[p]robation [is] meaningless if no sentence remain[s] for the court to impose if the defendant violate[s] the terms imposed.” Leitao v. Commonwealth, 39 Va. App. 435 (2002).

So why did the Court publish this case if the issue raised was already a matter of settled law?  Well, there could be several reasons.  Let’s start with the process for deciding whether to publish a decision.  In the Court of Appeals, the panel decides whether to publish, and usually the “writing judge” will make the call.  So, Judge Humphries, writing for Chief Judge Decker and Judge AtLee, may have simply thought that it was time to reiterate the rule.  It is also possible that the panel was of opinion that the case was sufficiently different from prior precedent because it relied on the combination of Hartless and Leitao.  This is the more likely reason, as the Court noted that there was a prior unpublished opinion that address a nearly identical set of fact – so with the possibility that the “novel argument” would make another appearance, the Court wanted to be sure there was a published opinion addressing it.