Present: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and
Millette, JJ., and Lacy, S.J.
JUDSON JEFFREY HARRIS
v. Record No. 091177 OPINION BY SENIOR JUSTICE
ELIZABETH B. LACY
COMMONWEALTH OF VIRGINIA FEBRUARY 25, 2010
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the trial court erred
in imposing the terms of a plea agreement executed in
conjunction with the defendant’s participation in a drug
treatment court program.
Judson Jeffrey Harris was charged with possession of heroin
in violation of Code § 18.2-250. He entered a plea agreement in
which he pled guilty to the charge of possession of heroin and
waived his right to trial by jury and to appeal. The
Commonwealth agreed to recommend three years incarceration with
all but six months suspended conditioned upon good behavior for
five years, with active, supervised probation and payment of
court costs. The plea agreement also provided that Harris would
seek admission to the Rappahannock Area Regional Drug Treatment
Court Program (“drug treatment court program”) and, if admitted
to the program, the finding of guilt and imposition of sentence
would be deferred. Upon successful completion of the drug
treatment court program, the charge would be dismissed. The
agreement also provided that violations of the conditions “may
result in my dismissal from the program and the imposition of
the sentence” contained in the agreement.
The circuit court for the City of Fredericksburg accepted
the plea agreement by entering an order consistent with the plea
agreement. That order recited that the court advised Harris
that “if he fail[ed] to successfully complete the Rappahannock
Area Regional Drug Treatment Court Program, . . . he may be
found guilty of possession of a controlled substance, as charged
in the [i]ndictment and be sentenced . . . in accordance with
the plea agreement.” On August 27, 2007, an order was entered
in the circuit court reciting that Harris was terminated from
the drug treatment court program and setting a sentencing
hearing.
At the sentencing hearing, Harris argued that he was a
“different person” and had rehabilitated himself. He also
argued that the trial court should consider the reasons he was
terminated from the drug treatment court program before
sentencing him to incarceration. 1 Harris argued that he had a
liberty interest in his continued freedom under the drug
treatment court program and he did not receive notice or an
opportunity to be heard regarding the termination decision.
1
The circuit court judge that accepted the plea agreement
recused himself from presiding in Harris’ sentencing hearing
because he had participated in the termination decision as the
drug court judge.
2
According to Harris, he was terminated because he was “poking
fun” at persons working in the drug treatment court program
through internet postings.
The Commonwealth argued again that substantial compliance
with the plea agreement terms was insufficient and that once a
plea agreement is accepted by the court, the disposition must be
in accord with the agreement.
The trial court concluded that the drug court judge
“presided over a hearing at which [Harris] was deemed not to
have completed the program” and “for that reason” the trial
court entered an order imposing the terms of the plea agreement.
The Court of Appeals affirmed the judgment of conviction and
sentence. Harris v. Commonwealth, Record No. 0208-08-2 (May 12,
2009). We awarded Harris an appeal.
DISCUSSION
The plea agreement and proceedings involved in this appeal
were undertaken pursuant to the Rappahannock Area Regional Drug
Treatment Court Program. This is the first instance in which we
have considered the procedures utilized in a drug treatment
court program.
In 2004, the General Assembly enacted the Drug Treatment
Court Act, Code § 18.2-254.1, to enhance effective treatment
programs for reducing drug use and its impact on families and
drug-related crimes. As part of this program, the General
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Assembly designated “drug treatment courts” as “specialized
court dockets within the existing structure of Virginia’s court
system offering judicial monitoring of intensive treatment and
strict supervision of addicts in drug and drug-related cases.”
Code § 18.2-254.1(D). The legislation provided that drug
treatment court programs could be created by localities under
the administrative implementation oversight of this Court,
pursuant to standards created by a state drug treatment court
advisory committee. Code § 18.2-254.1(E),(F). A local
jurisdiction creating this program must also have an advisory
committee that sets policies and procedures for the operation of
the program. Code § 18.2-254.1(G),(H),(I). Potential
participants are screened according to eligibility criteria
established by the local program. No defendant is entitled to
participate in the program and it is not available to every
defendant. Code § 18.2-254.1(M). The Drug Treatment Court Act
does not mandate specific procedures for the operation of the
drug treatment court program.
In his appeal, Harris raises a number of assignments of
error; however, the dispositive issue is whether the trial court
erred in refusing to consider the reasons that Harris was
terminated from the drug treatment court program before making a
decision regarding the imposition of the plea agreement terms
and sentencing him to incarceration. Harris argues that the
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trial court erred because he had acquired and enjoyed a liberty
interest when he was admitted to and participated in the drug
treatment court program pursuant to the plea agreement terms.
Harris contends that the only opportunity he had to maintain his
liberty was at the hearing before the trial court because he had
no notice or opportunity to be heard in conjunction with the
decision to terminate him from the drug treatment court program.
The Commonwealth, acknowledging at oral argument that
Harris had “some sort” of liberty interest while in the drug
treatment court program, contends that the record is
insufficient in this case to determine what transpired at the
meeting at which the decision to terminate Harris from the
program was made, and therefore, we cannot address Harris’
claim.
We agree with Harris and the Commonwealth that Harris had a
liberty interest while he was participating in the drug
treatment court program as part of the plea agreement accepted
by the trial court. Over 30 years ago, the United States
Supreme Court declared that persons on parole or probation
enjoyed a conditional liberty interest. Morrissey v. Brewer,
408 U.S. 471, 482 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 782
(1973). Continuation of that liberty interest depends on
compliance with certain conditions. This conditional liberty
interest is entitled to the protection of the 14th Amendment to
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the United States Constitution and its “termination calls for
some orderly process” in which the defendant has notice and
opportunity to be heard. Morrissey, 408 U.S. at 782. Like a
person on probation or parole, Harris enjoyed a conditional
liberty interest dependant on his observing certain conditions
and, like the probationer or parolee, before that interest can
be revoked, Harris was entitled to an orderly process providing
him notice and an opportunity to be heard. Although the United
States Supreme Court has not addressed the nature of the liberty
interest under these circumstances, virtually every jurisdiction
that has addressed the issue has concluded that a liberty
interest exists and is entitled to the protection of the 14th
Amendment. See, e.g., People v. Bishop, 7 P.3d 184, 188 (Colo.
Ct. App. 1999); State v. Rogers, 170 P.3d 881, 884-85 (Idaho
2007); People v. Anderson, 833 N.E.2d 390, 393-94 (Ill. App. Ct.
2005); Hopper v. State, 546 N.E.2d 106, 108 (Ind. Ct. App.
1989); Hager v. State, 990 P.2d 894, 898 (Okla. Crim. App.
1999).
We now turn to the Commonwealth’s contention that
regardless of Harris’ liberty interest, the lack of a sufficient
record in this case precludes our consideration of Harris’
claims. In doing so, we are mindful that Harris is not arguing
here that the trial court should have reversed the termination
decision made by the drug court judge. Rather he is asserting
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only that the trial court should have considered the reasons for
the termination thereby giving him the opportunity to “present
his side of the story.”
In this case, there is no transcript or other record of
what specifically transpired when the decision to terminate
Harris from the drug treatment court program was made. As the
trial court noted, the circuit court judge designated as the
“drug court judge” made the final decision terminating Harris
from the program. Nothing in the record suggests, however, that
the process was a formal hearing before the drug court judge in
which Harris had the opportunity to address the issue. There is
no doubt in this record that Harris was neither present nor had
an opportunity to participate in that process.
The drug treatment court program termination decision
itself, however, did not constitute a revocation of the liberty
interest created pursuant to acceptance of the plea agreement.
Harris’ liberty interest could be revoked only by order of the
circuit court. Nevertheless, under the terms of the plea
agreement accepted by the court, termination of the drug
treatment court program would be a very significant factor in a
decision of the circuit court to impose the terms of the
agreement and revoke Harris’ liberty. Consequently, because
Harris had no opportunity to participate in the termination
decision, the trial court’s refusal to consider evidence of the
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reasons for termination from the program when deciding whether
to revoke Harris’ liberty and impose the terms of the plea
agreement deprived Harris of the opportunity to be heard
regarding the propriety of the revocation of his liberty
interest. That decision was error. 2
Accordingly, for the reasons stated, we will reverse the
judgment of the Court of Appeals, vacate the conviction and
sentencing order of the trial court, and remand the case to the
Court of Appeals with instructions that the case be remanded to
the trial court for further proceedings consistent with this
opinion.
Reversed and remanded.
2
The Court of Appeals held that this issue was not preserved
because Harris did not proffer the evidence that he intended to
offer. Harris, Record No. 0208-08-2, slip op. at 3-4. The trial
court’s decision deprived Harris of his right to be heard, and
was not dependent on the substance of the evidence.
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