COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Russell and AtLee
UNPUBLISHED
Argued at Fredericksburg, Virginia
J.K.N.
MEMORANDUM OPINION* BY
v. Record No. 0455-15-4 JUDGE RICHARD Y. ATLEE, JR.
AUGUST 23, 2016
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Louise M. DiMatteo, Judge
Elizabeth Tuomey (Tuomey Law Firm, PLLC, on brief), for
appellant.
Katherine Quinlan Adelfio, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
J.K.N., a juvenile, pled guilty in the Juvenile and Domestic Relations District Court of
Arlington County (“the juvenile court”) to misdemeanor computer harassment. The juvenile
court found the evidence sufficient to adjudicate her delinquent, but withheld entry of such a
finding. Instead, it deferred disposition of the case and placed J.K.N. on supervised probation
pending disposition. The juvenile court indicated that it intended to dismiss the case eventually,
assuming J.K.N.’s compliance with the juvenile court’s requirements. Before the petition could
be disposed of, however, J.K.N. violated her probation. Instead of dismissing J.K.N.’s computer
harassment charge, the juvenile court adjudicated her as delinquent of the petition, and found her
in violation of her probation as well. J.K.N. appealed to the Circuit Court of Arlington County
(“the circuit court”), where she was again found in violation of her probation and found guilty of
computer harassment.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
J.K.N. now appeals her adjudication of guilt for computer harassment and the finding that
she violated her probation. She assigns three errors. First, “she was not on probation by the
plain terms of the sentencing order.” Second, “general good behavior does not include a curfew
violation; rather, curfew was a specific term of probation and is not illegal conduct.” Third, “due
process requires that she be given notice of the probation and good behavior requirements.” We
find that J.K.N. was on probation at the time she engaged in the behavior alleged to have violated
her probation. As a result, we affirm her convictions without addressing her second and third
assignments of error.
BACKGROUND
In 2012, J.K.N. pled guilty in the juvenile court to misdemeanor computer harassment, in
violation of Code § 18.2-152.7:1. The juvenile court found the evidence sufficient to convict
her, but withheld entry of a finding of guilt. On January 10, 2013, the juvenile court continued
the case “for further disposition and consideration of a deferred disposition.” The order from
that date stated, in pertinent part, as follows:
Disposition is continued and defendant is placed on supervised
probation pending disposition[.] A[)] general good behavior
B) individual and family counseling C) substance abuse evaluation
and follow all recommendations D) referral to Girls Outreach
E) no unsupervised use of the internet F) no social media G) no
threats, violence, bullying or intimidating H) 40 hours of
community service and I) cooperate with school[.]
(Capitalization altered).1 On the same day, J.K.N. signed a document entitled “Rules of
Probation.” Rule three stated: “Your curfew is: Friday and Saturday nights 9 P.M. All other
1
Code § 16.1-278.8 authorizes a court to defer disposition of a deliquency charge and to
place a juvenile on probation pending such disposition. Specifically, Code § 16.1-788.8(A)(5)
describes the action taken by the juvenile court in this case:
Without entering a judgment of guilty and with the consent of the
juvenile and his attorney, [a court may] defer disposition of the
delinquency charge for a specific period of time established by the
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nights 7 P.M. You are expected to be at home at these times unless the Court extends or restricts
the curfew.” Rule seven stated: “You must not run away from your home or placement.”
On March 19, 2013, the juvenile court entered a “Probation Order”2 recognizing that
J.K.N. had appeared before that court on January 10, 2013, and that it was in her best interests to
be on probation. The order stated further:
[T]he Court places the said juvenile o[n] Probation on the charge
of Harassment by Computer for an indeterminate period with
direction that the said [probation] officer use all suitable
methods . . . to aid and encourage such juvenile and bring about
improvement in the juvenile’s conduct and condition, and the said
[probation] officer is further directed . . . to furnish the said
juvenile and it[]s parents . . . with a written statement of the
conditions of Probation, together with instructions regarding the
same . . . .
The order also included the conditions from the January 10, 2013 order. It provided that the case
would be “[c]ontinued for further disposition and consideration of deferred disposition on July
15, 2013.”3
Eventually, the juvenile court entered an order on July 25, 2014, which stated:
Defendant has done very well living with her mother[.] Mother
has been ill but has been able to make sure defendant received
services and father has also been helping[.] Defendant’s motion
for a deferred disposition is GRANTED[.] Disposition is
deferred[.] Disposition is continued for three (3) months
conditioned on A) general good behavior and B) write paper on
court with due regard for the gravity of the offense and the
juvenile’s history, and place the juvenile on probation under such
conditions and limitations as the court may prescribe. Upon
fulfillment of the terms and conditions, the court shall discharge
the juvenile and dismiss the proceedings against him.
2
Although the juvenile court signed the order on March 19, 2013, the record does not
indicate that any party appeared in the juvenile court that day.
3
It is not clear from the record whether J.K.N. returned to the juvenile court on July 15,
2013. After the juvenile court’s probation order (signed on March 19, 2013), the next order in
the record is dated July 25, 2014.
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South Africa and submit to the Court within 30 days.
Continued for ex-parte dismissal if complian[t.]
(Capitalization altered). J.K.N. and her attorney were present in court on July 25, 2014, at which
time the case was continued to October 27, 2014.
In the meantime, on August 29, 2014, the Commonwealth filed a petition in the juvenile
court alleging that J.K.N. had violated rules three and seven of her probation when she was
absent from her mother’s home from August 24, 2014 until August 26, 2014, without permission
and without reporting her whereabouts.4 On October 27, 2014, instead of dismissing the
computer harassment charge as previously contemplated, the juvenile court found J.K.N. guilty
of computer harassment and found her in violation of her probation. On appeal, the circuit court
found J.K.N. guilty of the computer harassment charge and sentenced her to ten days in
detention, all suspended. It also found her in violation of probation, but imposed no penalty as a
result of that finding.
ANALYSIS
In her first assignment of error, J.K.N. asserts: “The [circuit court] erred in finding
J.K.N. guilty of violating probation and of Computer Harassment, because she was not on
probation by the plain terms of the sentencing order dated July 25, 2014, and courts speak only
through written orders.” She argues that nothing in the juvenile court’s order of July 25, 2014
stated explicitly that she remained on probation, points out that she was only on probation
“pending disposition” of the computer harassment charge,5 and claims that, because the juvenile
4
J.K.N. does not dispute that she left home without permission and without reporting her
whereabouts. She does dispute the legal ramifications of her actions.
5
J.K.N. also asserts that the January 2013 order conflicts with the March 2013 order
because the January order placed her on probation “pending disposition” whereas the March
order placed her on probation for “an indeterminate period.” Because we conclude that the
juvenile court’s July 25, 2014 order was not a “disposition,” we need not address this argument.
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court’s July 25, 2014 order was a “disposition,” she was no longer on probation. For those
reasons, J.K.N. argues, the probation violation should be dismissed, and the computer
harassment conviction, which would have been dismissed in the juvenile court but for the
wrongful finding that she violated her probation, should be dismissed as well. We disagree with
J.K.N.’s argument, and thus find that she is not entitled to the relief she requests.
At the outset, we observe that while “[w]e defer to the trial court’s interpretation of its
own order,” Leitao v. Commonwealth, 39 Va. App. 435, 438, 573 S.E.2d 317, 319 (2002), here
the circuit court was interpreting the juvenile court’s orders. Accordingly, we review de novo
the language of the juvenile court’s orders. Burwell’s Bay Improvement Ass’n v. Scott, 277 Va.
325, 329, 672 S.E.2d 847, 849 (2009) (“The legal effect of a court order is a question of law, and
we review such issues de novo on appeal.”). Furthermore, “[u]nder well-settled principles of
appellate review, we consider the evidence presented at trial in the light most favorable to the
Commonwealth, the prevailing party below. We also accord the Commonwealth the benefit of
all inferences fairly deducible from the evidence.” Wilkins v. Commonwealth, __ Va. __, __,
786 S.E.2d 156, 159 (2016) (citations omitted).
J.K.N. acknowledges that the January 10, 2013 order placed her on probation and that the
conditions of that probation included a curfew and a requirement that she not run away from
home. She also concedes that her probation was in effect “pending disposition” of her case. The
flaw in J.K.N.’s argument is her misunderstanding and mislabeling of the July 25, 2014 order. It
was not a “sentencing order” as she asserts, nor was it a “disposition.” To the contrary, the
juvenile court stated clearly: “Disposition is deferred.”
Title 16.1 of the Code uses the phrase “deferred disposition” without defining it.
Webster’s Third New International Dictionary 591 (2002) defines “defer” as “to put off (a matter
or person to be dealt with) deliberately to a future time.” J.K.N. points to the checked box next
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to the words “Dispositional Hearing” on the July 25, 2014 order as support for her argument that
such order announced a disposition. However, a hearing is not dispositional simply because a
box is checked; it is dispositional if the court disposes of the matter at hand. J.K.N. asserts that
“[t]he sentence, according to the order, was a three month deferred disposition.” This
declaration on its face misunderstands the procedure at issue. The juvenile court did not
“sentence” J.K.N. to a deferred disposition, because that would be tantamount to the court
declaring, nonsensically, “Today, this Court disposes of the charge by agreeing not to dispose of
the charge today.” The “disposition” J.K.N. urges this Court to recognize was no disposition at
all, rather the juvenile court ruled that the case was “[c]ontinued for . . . dismissal if
complian[t].” The juvenile court’s order of July 25, 2014 was nothing more than an order
deferring, or postponing until a later time, disposition of the matter before the court.
Furthermore, the juvenile court’s order of July 25, 2014 did not remove the probation
conditions previously in place; it placed additional conditions upon J.K.N. The juvenile court
continued the case for three more months, and ruled that the computer harassment charge would
be dismissed if J.K.N. was “complian[t].” The juvenile court’s failure to restate the
previously-imposed conditions of deferral did not operate to release J.K.N. from compliance
with those conditions. Contrary to the understanding of court orders J.K.N. would have us adopt,
the juvenile court’s silence left prior obligations in place, it did not remove them.6
6
J.K.N. cites White v. Commonwealth, 276 Va. 725, 667 S.E.2d 564 (2008), to support
her argument. In that case, appellant was on a deferred disposition for possession of cocaine,
pursuant to Code § 18.2-251. The trial court ordered her to comply with various conditions and
placed her on probation “until . . . December 21, 2005.” Id. at 728, 667 S.E.2d at 565. On
December 21, 2005, the Commonwealth reported that appellant had not paid her court costs, but
was otherwise compliant with her probation, so the trial court ordered the matter continued for an
additional six months. Appellant subsequently admitted using cocaine during this six-month
period, and the trial court revoked her first offender status because she had “violated the terms of
[her] probation.” Id. at 732, 667 S.E.2d at 567 (alteration in original). The Supreme Court
reversed. It held that appellant was no longer on probation after December 21, 2005, and
rejected the Commonwealth’s argument that there had been “a ‘de facto’ extension of
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Having corrected J.K.N.’s misconception about the nature of the juvenile court’s July 25,
2014 order, we conclude that the circuit court did not err in finding that J.K.N. remained on
probation following entry of that order. Thus J.K.N. was on probation at the time she left and
remained away from home, and her actions violated the terms of her probation. Based upon the
juvenile court’s order of January 10, 2013, probation continued “pending disposition” of the
computer harassment charge, i.e., until the final disposition of the case. Thus, the circuit court
did not err in finding her in violation of her probation or in convicting her of the computer
harassment charge.
CONCLUSION
The conditions of probation contained in the juvenile court’s order of January 10, 2013
were still in effect at the time J.K.N. left and remained away from her mother’s home, in
violation of those probation conditions. For that reason, we need not reach the argument in her
second assignment of error that the good behavior condition imposed by the trial court in the July
25, 2014 order did not encompass a curfew violation. Similarly, because we conclude J.K.N.
remained on probation by virtue of the January 10, 2013 order, we need not address the assertion
in her third assignment of error that she was deprived of due process because she had no notice
of the “indefinite” probation imposed in the March 19, 2013 order.
Affirmed.
probation.” Id. at 733, 667 S.E.2d at 568. White is distinguishable and does not help J.K.N.’s
cause. In White, the duration of probation was linked to a specific date. Once that date arrived,
and the trial court had not contemporaneously ordered otherwise, probation lapsed. Here, by
contrast, J.K.N.’s probation was linked to an event: the disposition of her case. At the time
J.K.N. left and remained away from her mother’s home in violation of the rules of her probation,
disposition had not yet occurred, therefore she remained on probation.
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