COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Haley and Beales
Argued at Chesapeake, Virginia
JAMES DERRELL SMITH
OPINION BY
v. Record No. 0395-07-1 JUDGE D. ARTHUR KELSEY
MAY 20, 2008
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Wilford Taylor, Jr., Judge
Ben Pavek (Office of the Public Defender, on briefs), for appellant.
Eugene Murphy, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
James Derrell Smith pled guilty to various charges of burglary and grand larceny. At his
sentencing hearing, the Commonwealth presented written statements from victims stating their opinion
on the value of the property stolen by Smith. On appeal, Smith argues that the sentencing court erred
by relying on these statements in setting the amount of restitution. We disagree and affirm.
I.
During a three-month crime spree, Smith burglarized multiple homes and stole various items
of personal property from homeowners. He pled guilty to twenty-one burglary and larceny offenses
in exchange for the nolle prosequi dismissal of nine additional charges. Prior to the sentencing
hearing, the Assistant Commonwealth Attorney asked the victims to estimate the value of their
stolen property. 1 Many of the victims provided this information. Victim loss statements were
prepared for each of the participating victims.
1
The items included cameras, a camcorder, rings, a lamp, pillowcases, computers, a printer,
a phone, Playstation consoles, a debit card, cash, jewelry, coins, video games, baseball caps, stereo
The probation officer also prepared a presentence report identifying the victims, their
addresses, and the specific items stolen from each. The presentence report recommended a
restitution plan requiring monthly payments. Attached to the presentence report was a single loss
statement seeking $7,794.30 in restitution for one of the victims.
At the start of the sentencing hearing, the court noted that it had been provided a presentence
report and an “attached victim witness impact statement and restitution amount” seeking $7,794.30.
The Assistant Commonwealth Attorney advised the court that she had submitted a “packet” of
additional victim loss statements and requested $27,256.57 in total restitution. The court found the
“packet” in the court’s file. The “packet” contained a cover letter, a loss itemization for the victims
seeking restitution, and fourteen victim loss statements.
Smith’s counsel acknowledged that the presentence report, its attached victim loss
statement, and the “packet” of additional statements had been provided to him “well in advance” of
the sentencing hearing. “My only concern,” Smith’s counsel stated, was the amount and method of
calculating the restitution. Counsel noted that the restitution value placed on some of the items
could be new-for-old replacement value. “I just don’t know simply by looking at the list if that’s an
actual amount of restitution,” counsel argued, “and that’s my only point on that, Judge.”
The Assistant Commonwealth Attorney proffered to the court that her office prepared the
victim loss statements based upon information provided directly from the victims. “[T]he victims in
each individual case were asked the amount, the value of the items at the time that they were stolen.
And that’s the information that was provided before the court and we would ask the court to accept
the restitution amounts.” The Assistant Commonwealth Attorney added that she provided the
systems, speakers, compact discs, a computer monitor, a DVD recorder, a DVD player, pistols,
shotguns, rifles, black powder replicas, ammunition, shoes, luggage, a Blackberry, vodka, wine,
steaks, milk, juice, a military issued bulletproof vest, gift cards, and various other personal items.
-2-
victim loss statements to Smith’s counsel prior to the sentencing hearing, thus giving him an
opportunity to present evidence or witnesses to contest the restitution values claimed by the victims.
Relying on the presentence report and the victim loss statements, the sentencing court found
the amounts reasonable and ordered Smith to cooperate with a restitution plan coordinated by the
probation officer. The court then reduced the term of Smith’s active incarceration to give him an
opportunity to get a quick start on reimbursing the victims for their losses. “That’s part of why I’m
going with the lower end of the guidelines,” the judge explained, “because I do want him to get out
to start repaying these individuals because that would help with their peace of mind.”
After the court ruled, Smith’s counsel again objected to the restitution amount because the
victims did not specify their method of valuation. Before imposing the restitution itemized in the
victim loss statements, counsel argued, the court should conduct a “formal hearing” in which the
victims can testify and be subject to cross-examination. The sentencing court rejected Smith’s
argument, stating: “We had that hearing today. . . . I accept this list. This is the amount. This is
the evidence that I’m basing it on . . . .”
II.
On appeal, Smith argues the sentencing court erred by ordering restitution based on the
victim loss statements. These statements, Smith contends, should have been disregarded as hearsay
proffers of out-of-court declarants who could not be cross-examined. 2 We disagree.
A sentencing hearing before a judge is not a criminal trial. When exercising the wide
discretion inherent in sentencing, a judge should “not be denied an opportunity to obtain pertinent
information by a requirement of rigid adherence to restrictive rules of evidence properly applicable
2
Smith does not contest the settled principle that a victim of theft may offer his own opinion
on the value of the stolen property, see Crowder v. Commonwealth, 41 Va. App. 658, 664 n.3, 588
S.E.2d 384, 387 n.3 (2003), or that the sentencing court should employ a preponderance-of-the-
evidence standard when determining the amount of restitution, see Bazemore v. Commonwealth, 25
Va. App. 466, 468, 489 S.E.2d 254, 255 (1997).
-3-
to the trial.” Williams v. New York, 337 U.S. 241, 247 (1949). For this reason, the rule against
hearsay does not apply to sentencing hearings. See Wolfe v. Commonwealth, 37 Va. App. 136,
142, 554 S.E.2d 695, 698 (2001); Alger v. Commonwealth, 19 Va. App. 252, 258, 450 S.E.2d 765,
768 (1994); see also 6 Wayne R. LaFave, Criminal Procedure § 26.5(a), at 802 (3d ed. 2007)
(observing that “the sentencing court can consider other types of hearsay, whether contained in the
presentence report or offered by the prosecution or defense”). A sentencing court, therefore, may
consider hearsay “to establish an appropriate amount of restitution.” McCullough v.
Commonwealth, 38 Va. App. 811, 816, 568 S.E.2d 449, 451 (2002).
Given the narrow focus of a sentencing hearing, the defendant’s inability to cross-examine a
hearsay declarant does not undermine the fundamental fairness of the proceeding:
[O]nce the guilt of the accused has been properly established, the
sentencing judge, in determining the kind and extent of punishment to be
imposed, is not restricted to evidence derived from the examination and
cross-examination of witnesses in open court but may, consistently with
the Due Process Clause of the Fourteenth Amendment, consider
responsible unsworn or “out-of-court” information relative to the
circumstances of the crime . . . .
Williams v. Oklahoma, 358 U.S. 576, 584 (1959) (emphasis added) (quoted in Harris v.
Commonwealth, 26 Va. App. 794, 807, 497 S.E.2d 165, 171 (1998)). This principle has deep
historical roots:
Tribunals passing on the guilt of a defendant always have been hedged in
by strict evidentiary procedural limitations. But both before and since
the American colonies became a nation, courts in this country and in
England practiced a policy under which a sentencing judge could
exercise a wide discretion in the sources and types of evidence used to
assist him in determining the kind and extent of punishment to be
imposed within limits fixed by law.
McClain v. Commonwealth, 189 Va. 847, 859-60, 55 S.E.2d 49, 55 (1949) (quoting Williams, 337
U.S. at 246). “This broad rule of inclusion is tempered by the requirement that the information bear
-4-
some indicia of reliability.” Moses v. Commonwealth, 27 Va. App. 293, 302, 498 S.E.2d 451, 456
(1998) (citing Alger, 19 Va. App. at 258, 450 S.E.2d at 768).
The question we must answer, then, is whether the victim loss statements could be
considered “responsible unsworn or ‘out-of-court’ information relative to the circumstances of the
crime,” Williams, 358 U.S. at 584, bearing sufficient “indicia of reliability,” Alger, 19 Va. App. at
258, 450 S.E.2d at 768 (citation omitted), to be considered by the sentencing court.
We think the answer can be found in Harris, 26 Va. App. at 794, 497 S.E.2d at 165. In that
case, a prosecutor proffered to a sentencing court evidence presented by several witnesses against
the defendant in another case involving an unrelated, pending charge. The defendant objected to the
proffer because it was not “admissible testimony” at the sentencing hearing and because permitting
the proffer effectively deprived him of any “opportunity to confront and cross-examine those
witnesses during the sentencing hearing.” Id. at 809, 497 S.E.2d at 172. We disagreed and held:
Consistent with due process, a sentencing court “is not restricted to
evidence derived from the examination and cross-examination of
witnesses in open court” and is permitted to consider “responsible
unsworn or ‘out-of-court’ information relative to the circumstances of
the crime and to the convicted person’s life and characteristics.”
Williams v. Oklahoma, 358 U.S. at 584, 79 S. Ct. at 426 (emphasis
added) . . . .
* * * * * * *
Although appellant argued that the witnesses at this trial were not
credible, he did not disagree with the Commonwealth’s attorney’s
representations regarding the substance of their testimony and the other
evidence at the trial. As such, we cannot say the trial court violated the
Due Process Clause when it chose to rely upon the Commonwealth’s
attorney’s “responsible unsworn” proffer regarding this evidence. See
id. at 583-84, 79 S. Ct. at 426 (holding that the prosecuting attorney’s
statement of the details of the crime and of the defendant’s criminal
record at a sentencing hearing following a guilty plea did not “deprive
[the defendant] of fundamental fairness or of any right of confrontation
or cross-examination” (emphasis added)).
Id. at 809-10, 497 S.E.2d at 172-73 (emphasis in original).
-5-
For the same reasons, we hold the sentencing court did not err by relying on the victim loss
statements and fashioning a restitution award based upon them. The Assistant Commonwealth
Attorney advised the court that “the victims in each individual case were asked the amount, the
value of the items at the time that they were stolen.” The victim loss statements reported their
answers. Smith did not challenge the factual accuracy of the proffer. Nor did he present any
evidence contradicting the valuations or, for that matter, make any effort to compel the victims to
take the stand and submit to cross-examination as adverse witnesses. Smith had an adequate
opportunity to do so, having received the statements well in advance of the hearing.
In short, a sentencing court, “in determining the appropriate amount of restitution, may
consider hearsay evidence that bears ‘minimal indicia of reliability’ so long as the defendant is
given an opportunity to refute that evidence.” United States v. Bourne, 130 F.3d 1444, 1447 (11th
Cir. 1997) (citation omitted). 3 Smith had that opportunity and did not take advantage of it.
III.
Because the sentencing court did not err by relying on the victim loss statements to
determine a reasonable amount of restitution, we affirm.
Affirmed.
3
See also United States v. Reese, 998 F.2d 1275, 1282 (5th Cir. 1993) (holding that a
sentencing court may determine restitution based upon “hearsay evidence that bears minimal indicia
of reliability so long as the defendant is given an opportunity to refute that evidence” (citing United
States v. Rochester, 898 F.2d 971, 982 (5th Cir. 1990), and United States v. Rodriguez, 765 F.2d
1546, 1555 (11th Cir. 1985))); United States v. Hairston, 888 F.2d 1349, 1353 (11th Cir. 1989)
(“Hearsay evidence may be considered” in determining restitution, “so long as the defendant is
given an opportunity to refute the evidence,” and it “bears ‘minimal indicia of reliability.’”); United
States v. Florence, 741 F.2d 1066, 1069 (8th Cir. 1984) (allowing restitution to be based on
“hearsay evidence that the defendant has had an opportunity to explain or rebut”); United States v.
Ciambrone, 602 F. Supp. 563, 566 (S.D.N.Y. 1984) (noting that disclosure prior to sentencing gives
the defendant “the opportunity to refute or supplement the information on which the court will rely
in making a restitution determination”).
-6-