COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Elder and Kelsey
Argued at Chesapeake, Virginia
VINCENT PRICE
OPINION BY
v. Record No. 2287-06-1 JUDGE D. ARTHUR KELSEY
APRIL 8, 2008
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Charles D. Griffith, Jr., Judge
Lenita J. Ellis for appellant.
Karri B. Atwood, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Vincent Price appeals two orders finding him in violation of the conditions of his
supervised probation. He claims the circuit court failed to give him proper written notice of the
grounds for the alleged violations prior to the revocation hearing. Price also contends the court
abused its discretion by imposing active incarceration in one of the two revocation orders. We
disagree and affirm.
I.
Price was convicted in 1996 for possessing cocaine with intent to distribute. In 2001,
Price was found guilty of statutory burglary. He received partially suspended sentences on each
of these convictions, coupled with concurrent periods of suspension and supervised probation.
The 2001 conviction caused Price to be in violation of the terms of his 1996 suspended sentence,
resulting in a partial revocation and the imposition of eighteen months of incarceration. Within a
week or so after being released from jail in 2005, Price tested positive for cocaine use. About a
month later he failed to report as ordered for a meeting with his probation officer. Shortly
thereafter he was arrested again, this time for burglary and grand larceny.
Price’s probation officer advised the circuit court of the new arrests and recommended a
hearing to determine whether the court should revoke Price’s suspended sentences. The court
issued a capias ordering the arrest of Price and directing that he be brought before the court for a
probation violation hearing. The capias listed Price’s recent arrests as the basis for the probation
violation charge. The probation officer later forwarded to the court a major violation report
identifying the new charges against Price. The report, however, also alleged that Price violated
the conditions of probation due to his use of cocaine and his failure to report.
Price went to trial on his two new charges and was acquitted of both. After trial, the
probation officer wrote a letter to the court suggesting that the probation violation proceeding be
dismissed. At the revocation hearing, Price endorsed this view and added that due process
principles required the court to dismiss because the capias listed only the new charges as the
basis for the alleged probation violation. The additional allegations in the major violation report,
Price argued, could not be considered. 1
The court rejected Price’s argument and held that the major violation report should be
considered. Finding that Price violated the terms of probation by using cocaine and by failing to
report, the court revoked a portion of the remaining suspended sentence on the 1996 conviction
and imposed three years of active incarceration. The court also revoked and resuspended in full
the sentence on Price’s 2001 conviction.
1
The context of counsel’s remarks at the hearing suggested she received the report prior
to the hearing, though she made no outright concession on the subject. At oral argument on
appeal, however, Price’s counsel conceded without qualification that she received the report
prior to the hearing. See Logan v. Commonwealth, 47 Va. App. 168, 172, 622 S.E.2d 771, 773
(2005) (en banc) (accepting appellant’s concessions of fact made on appeal). Price made no
claim of lack of actual notice in the trial court and makes no such claim on appeal.
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II.
A. WRITTEN NOTICE OF PROBATION VIOLATION
On appeal, Price correctly points out that the capias mentioned his recent arrests but not
the other two probation violations alleged in the probation officer’s major violation report. From
that premise, Price contends due process principles required the circuit court to dismiss the
probation violation proceeding. Like the trial court, we see no merit in this argument.
Because a revocation proceeding is not “a stage of criminal prosecution,” a probationer
accused of violating the conditions of probation “is not entitled to the same due process
protections afforded a defendant in a criminal prosecution.” Logan v. Commonwealth, 50
Va. App. 518, 525, 651 S.E.2d 403, 406 (2007). Instead, a probationer receives certain
“minimum procedural safeguards,” Black v. Romano, 471 U.S. 606, 611 (1985), which include,
among other basic protections, “written notice of the claimed violations,” Gagnon v. Scarpelli,
411 U.S. 778, 786 (1973) (citation omitted).
Show-cause orders can satisfy the written notice requirement, see, e.g., Howie v.
Commonwealth, 222 Va. 625, 630, 283 S.E.2d 197, 200 (1981), as can correspondence from
prosecutors, see, e.g., Logan, 50 Va. App. at 525, 651 S.E.2d at 406. The important thing is not
the form, but the fact, of notice. See, e.g., Copeland v. Commonwealth, 14 Va. App. 754, 756,
419 S.E.2d 294, 296 (1992) (finding due process violation when the probationer received no
notice of the “time” or the “grounds” for the hearing or any “notice that the trial court would
consider revocation of his suspended sentence”).
In this case, Price received a major violation report from the probation officer prior to the
hearing. The report stated that Price violated the conditions of probation by testing positive for
cocaine, by failing to report, and by receiving new charges. The report listed each as a separate
violation. The circuit court based its holding on Price’s use of cocaine and his failure to report.
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Prior to his hearing, therefore, Price received written notice of both grounds relied upon by the
court for its conclusion that he violated the conditions of probation.
Unlike Price, we fail to see any constitutional significance in the fact that the capias
noted only one of the three alleged probation violations. A capias is simply a bench warrant of
arrest — not a charging document or some form of judicially-issued notice pleading. The
function of a capias is to authorize a law enforcement officer to take the probationer into
custody. See Black’s Law Dictionary 221 (8th ed. 2004). Certainly a capias can and sometimes
does serve as a means of itemizing the allegations underlying a claimed probation violation. But
due process does not require that it do so when other written notices suffice. 2
B. IMPOSITION OF ACTIVE INCARCERATION
Price also argues the circuit court abused its discretion by imposing a period of active
incarceration upon finding that he violated the conditions of probation. We again disagree.
Code § 19.2-306 authorizes a circuit court to revoke a suspended sentence “for any cause
deemed by it sufficient . . . .” On appeal, a revocation decision “will not be reversed unless there
is a clear showing of abuse of discretion.” Davis v. Commonwealth, 12 Va. App. 81, 86, 402
S.E.2d 684, 687 (1991) (citations omitted). A court “‘undoubtedly has the power to revoke [the
suspension of a sentence] when the defendant has failed to comply with the conditions of the
suspension.’” Russnak v. Commonwealth, 10 Va. App. 317, 321, 392 S.E.2d 491, 493 (1990)
(citation omitted). “The power of the court to revoke for breach of the terms and conditions of
2
We accept, at least in principle, that confused notice is no better than no notice at all.
The same can be said for untimely notice. Price, however, raised neither of these concerns in the
circuit court. He did not claim to be unprepared to defend himself or suggest the need for
additional due diligence. Instead, in the circuit court as on appeal, Price claimed only that the
failure of the capias to list all of the grounds for the probation violation charge constituted a “per
se violation” of due process. Appellant’s Reply Br. at 2.
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probation should not be restricted beyond the limitations fixed by the statutes.” Rease v.
Commonwealth, 227 Va. 289, 294, 316 S.E.2d 148, 151 (1984).
When coupled with a suspended sentence, probation represents “an act of grace on the
part of the Commonwealth to one who has been convicted and sentenced to a term of
confinement.” Pierce v. Commonwealth, 48 Va. App. 660, 667, 633 S.E.2d 755, 758 (2006).
Price twice received that grace: first, when the circuit court in 1996 suspended nearly all of his
sentence after being convicted of possessing cocaine with intent to distribute and, second, when
the court in 2001 revoked only a portion of his suspended sentence after finding Price in
violation of the terms of probation.
Price squandered his conditional liberty when, within days of leaving his jail cell in 2005,
he tested positive for cocaine use and, about a month later, failed to report for a required meeting
with the probation officer. The circuit court did not abuse its discretion by responding to these
circumstances with an active period of incarceration. For probation to have a deterrent effect on
recidivism, real consequences must follow a probationer’s willful violation of the conditions of
probation. By imposing an active period of incarceration in this case, the circuit court did
nothing more than confirm that the conditions of probation were in fact conditions of probation.
III.
Finding no violation of due process or any abuse of discretion, we affirm the circuit
court’s revocation orders.
Affirmed.
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