COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys
Argued at Alexandria, Virginia
MARK ANTHONY LAWRENCE
MEMORANDUM OPINION * BY
v. Record Nos. 0716-01-4 and CHIEF JUDGE JOHANNA L. FITZPATRICK
1385-01-4 DECEMBER 3, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge
Vanessa Antoun, Senior Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General;
H. Elizabeth Shaffer, Assistant Attorney
General, on brief), for appellee.
Mark Anthony Lawrence (appellant) contends the trial court
violated his due process rights when it revoked his probation and
imposed the full term of his three-year suspended sentence.
Finding no due process violation, we affirm.
I. BACKGROUND
The essential facts are not in dispute. In November 1995,
appellant was convicted of attempted abduction. He was sentenced
to five years in the penitentiary, followed by three years of
active probation. On March 9, 2000 the trial court issued a bench
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
warrant charging that appellant had violated the terms of his
probation. Specifically the bench warrant charged:
MARK ANTHONY LAWRENCE has violated the terms
of his probation:
Condition #6: To follow my Probation and
Parole Officer's instruction and be truthful
and cooperative;
On February 7, 2000 subject was transported
to the Kennedy Shelter, 9155 Richmond
Highway, Alexandria, VA., and instructed to
obey all of the shelter's rules and to
conduct himself in a manner so as not to be
removed from the shelter. On February 22,
2000, Mr. Joe Boodie, Case Manager, Kennedy
Shelter reported that about 5:30 pm on
February 21, 2000, subject made unwanted
sexual advances toward Ms. Lisa Jones, Night
Manager at the shelter. He said words to
the effect that, I need some loving or I
need some sex. Subject was immediately
removed from the shelter.
And the Defendant has not been of good
behavior and there is good reason to believe
his suspended sentence should be revoked.
Appellant was arrested on the bench warrant February 1, 2001
and on February 16, 2001 at the resulting revocation hearing
denied that he "[was] removed from the shelter for non-compliance
with the rules there." At this hearing, appellant objected to the
Commonwealth presenting evidence concerning his failure to
maintain contact with the probation office because the bench
warrant did not list that as a basis for a violation.
Notwithstanding his objection, appellant presented evidence as
part of his case that he and others on his behalf had attempted to
contact his probation officer on several occasions after his
- 2 -
termination from the Kennedy Shelter. The Commonwealth then
called a probation officer who testified about the facts
surrounding his removal from the shelter and his failure to keep
in contact with the probation office. At the conclusion of that
hearing, the trial court revoked appellant's probation and stated:
I'm convinced that the condition was given
to you that you were to abide by all the
rules of the Kennedy Shelter. I'm convinced
you failed to do that. And I am also
convinced that you absconded from probation
after that.
On May 18, 2001 the trial court granted appellant's motion to
rehear and allowed appellant to present additional evidence of his
attempts to contact his probation officer after being removed from
the shelter. At the close of the reconsideration hearing, the
trial court again found appellant to be in violation and sentenced
him to three years incarceration. The sole issue presented in
these combined appeals is whether the trial court violated
appellant's due process rights by considering evidence on
"absconding" from probation when that information was not
specifically noticed as a basis for revocation on the bench
warrant. 1
1
Appellant noted an appeal to the March 2, 2001 order
revoking his probation on March 19, 2001. However, appellant
then sought reconsideration in the trial court. When the trial
court denied reconsideration by order dated May 22, 2001,
appellant again noted an appeal. There is only one issue to be
resolved by this Court.
- 3 -
II. ANALYSIS
"No person shall be . . . deprived of life, liberty, or
property, without due process of law." U.S. Const. amend V.;
Va. Const. art. 1, § 11. "In general, due process requires that
individuals have notice of those acts which may lead to a loss
of liberty." Holden v. Commonwealth, 27 Va. App. 38, 45, 497
S.E.2d 492, 495 (1998) (citing Marks v. United States, 430 U.S.
188, 191 (1977)). In the context of revocations
minimum due process requirements include:
(1) written notice; (2) disclosure of the
evidence against the accused; (3) an
opportunity to be heard and to present
evidence and witnesses; (4) an opportunity
to confront and cross-examine adverse
witnesses; (5) a "neutral and detached"
hearing body; and (6) a written statement as
to the evidence relied on and reasons for
revoking parole.
Copeland v. Commonwealth, 14 Va. App. 754, 756, 419 S.E.2d 294,
295 (1992) (citing Morrissey v. Brewster, 408 U.S. 471 (1972)).
An order requiring the defendant to appear to show cause why his
suspension of sentence should not be revoked satisfies the
notice requirement. See id. at 756, 419 S.E.2d at 296.
In the instant case, the bench warrant expressly stated
that appellant had been removed from the Kennedy Shelter for
inappropriate conduct. The record supports the trial court's
finding that appellant was terminated from his shelter placement
for cause. This was clearly the issue outlined in the language
- 4 -
of the bench warrant and provides an adequate basis for the
trial court's revocation of appellant's suspended sentence.
"In any case in which the court has suspended the execution
or imposition of sentence, the court may revoke the suspension
of sentence for any cause the court deems sufficient that
occurred at any time within the probation period, or within the
period of suspension fixed by the court." Code § 19.2-306(A).
"A trial court has broad discretion to revoke a suspended
sentence and probation based on Code § 19.2-306, which allows a
court to do so for any cause deemed by it sufficient." Davis v.
Commonwealth, 12 Va. App. 81, 86, 402 S.E.2d 684, 687 (1991)
(citing Hamilton v. Commonwealth, 217 Va. 325, 326, 228 S.E.2d
555, 556 (1976); Slayton v. Commonwealth, 185 Va. 357, 365, 38
S.E.2d 479, 483 (1946)). "'The court's findings of fact and
judgment will not be reversed unless there is a clear showing of
abuse of discretion.'" Keselica v. Commonwealth, 34 Va. App.
31, 35, 537 S.E.2d 611, 613 (2000) (quoting Davis, 12 Va. App.
at 86, 402 S.E.2d at 687). The trial court found as a fact that
appellant failed to abide by the rules of the Kennedy Shelter as
set out in the bench warrant, and this alone provides a
sufficient basis for the revocation. Credible evidence supports
this finding.
Moreover, appellant waived his due process objection to the
trial court's consideration of evidence that he "absconded" from
his probation when he presented evidence on absconding.
- 5 -
Appellant "is confronted by a substantive rule of law which
renders irreversible the action of the trial court" in receiving
evidence on absconding. Hubbard v. Commonwealth, 243 Va. 1, 9,
413 S.E.2d 875, 879 (1992). "The rule is that 'where an accused
unsuccessfully objects to evidence which he considers improper
and then on his own behalf introduces evidence of the same
character, he thereby waives his objection, and we cannot
reverse for the alleged error.'" Id. (quoting Saunders v.
Commonwealth, 211 Va. 399, 401, 177 S.E.2d 637, 638 (1970)); see
also Combs v. Norfolk and Western Rwy. Co., 256 Va. 490, 499,
507 S.E.2d 355, 360 (1998). Initially, appellant presented
evidence on this issue at the February 16, 2001 revocation
hearing. He also requested and received permission to present
additional evidence of this nature at the hearing on his motion
to reconsider. The record reflects that appellant had notice
and ample opportunity to be heard on all issues and, thus, no
due process violation occurred. The trial court is affirmed.
Affirmed.
- 6 -