Timothy Wayne Gurley v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Bray, Clements and Senior Judge Hodges
Argued at Chesapeake, Virginia
TIMOTHY WAYNE GURLEY
OPINION BY
v. 	Record No. 1634-99-1 	JUDGE WILLIAM H. HODGES
DECEMBER 19, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Everett A. Martin, Jr., Judge
Allan D. Zaleski (Weisberg & Zaleski, P.C.,
on brief), for appellant.
Pamela A. Rumpz, Assistant Attorney General
(Mark L. Earley, Attorney General; Robert H.
Anderson, III, Assistant Attorney General, on
brief), for appellee.
Timothy Wayne Gurley (appellant) contends the trial court
erred in denying his motion to have the trial judge who initially
sentenced him and imposed a suspended sentence preside at his
revocation hearing. 	For the reasons that follow, we affirm.
BACKGROUND
On March 23, 1998, appellant pled guilty to grand larceny
before Judge Poston of the Norfolk Circuit Court. 	After hearing
evidence and argument, Judge Poston found appellant guilty. 	He
imposed a four-year sentence but suspended all four years on
condition appellant be of good behavior.
On January 26, 1999, appellant's probation officer notified
the trial judge that appellant had been convicted of an offense on

November 12, 1998. 	As a result, the probation officer requested
that a probation violation capias be issued.
On February 24, 1999, the trial judge issued the capias.
On April 29, 1999, the trial court, Judge Martin presiding,
conducted a revocation hearing. 	At the beginning of the
hearing, appellant's attorney stated the following:
On today's docket on the probation violation
Timothy Wayne Gurley, I talked to Mr. Gurley
about the situation. 	This is Judge Poston's
case, and Mr. Gurley has asked that I
request that the matter be postponed so that
Judge Poston can hear the case. 	It's a
little bit unusual and I would ask that be
done.
In support of his request, defense counsel indicated that
appellant "feels that he encountered you . . . as a judge in
Norfolk Juvenile Court on several occasions, evidently when you
served in that capacity." 	Judge Martin denied having "any
recollection of him." 	Judge Martin stated that "Judge Poston's
position is that any judge in this court can handle any
probation violation," and he denied appellant's motion.
DISCUSSION
The Issue on Appeal
Appellant initially pointed out that "this is Judge
Poston's case" and requested a continuance so Judge Poston "can
hear the case." 	He then explained "one of the reasons" for
requesting Judge Poston was because Judge Martin "encountered"
appellant in juvenile court "on several occasions."
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The record thus shows that appellant advanced two reasons
for requesting Judge Poston to preside. 	First, appellant argued
that this was "Judge Poston's case"; therefore, he should
preside. 	Appellant also argued that he knew Judge Martin from
juvenile court. 	However, on appeal, appellant limits his
argument to the authority of a circuit court judge to preside at
a revocation hearing where that judge did not preside at the
guilt and sentencing phases of trial.
Preservation of the Issue on Appeal
The Commonwealth contends the issue was not preserved for
appellate review. 	We disagree.
An alleged error is preserved for consideration on appeal
if "at the time the ruling or order of the court is made or
sought, [a party] makes known to the court the action which he
desires the court to take or his objections to the action of the
court and his grounds therefor." 	Code § 8.01-384. 	The purpose
of this rule is "to avoid unnecessary appeals, reversals and
mistrials by allowing the trial judge to intelligently consider
an issue and, if necessary, to take corrective action."
Campbell v. Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d 1, 2
(1991) (en banc).
Appellant clearly asked for Judge Poston, the sentencing
judge, to preside. 	Relying on Judge Poston's position that "any
judge in this court can handle any probation violation," Judge
Martin denied the request. 	By referring to Judge Poston's
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"position" in his ruling, the trial judge recognized but
disagreed with appellant's argument that the original sentencing
judge should preside. 	The fact that the appellant did not cite
the statutory authority upon which he relies in his brief does
not affect the determination whether he preserved the issue on
appeal.
ANALYSIS
Appellant contends that Judge Martin's reliance on "Judge
Poston's position . . . that any judge in this court can handle
any probation violation" violated Code § 17.1-503. 	Code
§ 17.1-503 authorizes the Supreme Court to "formulate rules of
practice and procedure for the circuit courts." 	It provides
that
[n]o rule shall hereafter be promulgated
under the limitations of § 8.01-4 or
otherwise which would avoid or preclude the
judge before whom an accused is arraigned in
criminal cases from hearing all aspects of
the case on its merits, or to avoid or
preclude any judge in any case who has heard
any part of the case on its merits, from
hearing the case to its conclusion.
Id.1
1 In his brief, appellant misquoted Code § 17.1-503 to read
"no local rule may preclude a Judge of a Circuit Court from
hearing all aspects of the case on its merits." 	As explained in
the body of this opinion, Code § 8.01-4 is the section that
addresses the circuit court's authority to prescribe certain
rules.
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Code § 8.01-4 provides, in pertinent part:
[C]ircuit courts may, from time to time,
prescribe rules for their respective . . .
circuits. 	Such rules shall be limited to
those rules necessary to promote proper
order and decorum and the efficient and safe
use of courthouse facilities and clerks'
offices. 	No rule of any such court shall be
prescribed or enforced which is inconsistent
with this statute or any other statutory
provision, or the Rules of Supreme Court or
contrary to the decided cases, or which has
the effect of abridging substantive rights
of persons before such court. 	Any rule of
court which violates the provisions of this
section shall be invalid.
Thus, appellant's argument is that Judge Poston's expressed
"position" amounted to a local rule that improperly precluded
the original sentencing judge, Judge Poston, from "hearing all
aspects of the case on its merits . . . to its conclusion," in
violation of Code § 17.1-503 as it relates to Code § 8.01-4.
The practice of allowing any circuit judge to handle any
probation violation does not violate Code § 17.1-503 as it
pertains to Code § 8.01-4. 	Judge Poston's "position" did not
prevent the circuit judge who presides at trial from presiding
at a subsequent revocation hearing. 	Instead, the statement
merely explained that any circuit judge, even the original
sentencing judge, could preside at a revocation proceeding.
Moreover,
"[w]hen interpreting a statute, the courts
have a duty to give full force and effect to
every word thereof." 	"A construction which
would . . . enervate, impede and paralyze
the administration of the criminal laws of
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the State should not be adopted unless the
legislative intent to produce such a result
is clearly indicated." 	Clearly, the
legislature intended to grant broad
discretion to judges to revoke suspensions
of sentences for cause. 	Thus, the statutes
"should be liberally construed to provide
trial courts a valuable tool for
rehabilitation of criminals."
Carbaugh v. Commonwealth, 19 Va. App. 119, 124, 449 S.E.2d 264,
267 (1994) (citations omitted).
"[T]he revocation of parole is not part of a criminal
prosecution and thus the full panoply of rights due a defendant
in such a proceeding does not apply to parole revocations."
Morrissey v. Brewer, 408 U.S. 471, 481 (1971); see also Gagnon
v. Scarpelli, 411 U.S. 778, 782 (1972) (holding that
"[p]robation revocation, like parole revocation is not a stage
of a criminal prosecution"). 	In setting forth the minimum due
process requirements for a revocation hearing, the Supreme Court
"emphasize[d] there is no thought to equate this [hearing] to a
criminal prosecution in any sense." 	Morrissey, 408 U.S. at 489
(explaining "[i]t is a narrow inquiry" and the process should be
flexible). 	The Supreme Court purposely avoided prescribing "an
inflexible structure for parole revocation procedures," and
noted that "[t]he few basic [due process] requirements . . .
should not impose a great burden on any State's parole system."
Id. at 490. 	Similarly, we have adopted that view of probation
revocation hearings.
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Both the United States Supreme Court and
this Court have previously indicated
probation revocation hearings are not a
stage of criminal prosecution and therefore
a probationer is not entitled to the same
due process protections afforded a defendant
in a criminal prosecution. 	Specifically,
the United States Supreme Court has stated
that in revocation hearings "formal
procedures and rules of evidence are not
employed," and that the process of
revocation hearings "should be flexible
enough to consider evidence . . . that would
not be admissible in an adversary criminal
trial."
Davis v. Commonwealth, 12 Va. App. 81, 84, 402 S.E.2d 684, 686
(1991) (citations omitted) (emphasis added).
Furthermore, when discussing the authority to revoke a
suspended sentence, our revocation statute and case law ascribe
that authority to "the court," "a court" and, using the
indefinite article, to "a judge," without specifying which trial
judge. 	See, e.g., Code § 19.2-306 ("the court may, for any cause
deemed by it sufficient within the probation period, . . . revoke
the suspension of sentence" (emphasis added)); Griffin v.
Cunningham, 205 Va. 349, 354, 136 S.E.2d 840, 844 (1964) ("[a]
court which has ordered a suspension of sentence undoubtedly has
the power to revoke it" (emphasis added)); Carbaugh, 19 Va. App.
at 123, 449 S.E.2d at 266 ("under Virginia law once a defendant
receives a suspended sentence, a judge's power to revoke the
suspension is governed by statute" (emphasis added)).
In Hess v. Commonwealth, 17 Va. App. 738, 742, 441 S.E.2d
29, 32 (1994), we reversed the trial court's decision to revoke
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Hess' suspended sentence because the trial judge presiding at
the revocation proceeding improperly based his decision to
revoke Hess' suspended sentence on unspecified evidence he
allegedly heard while presiding at Hess' earlier trial. 	In that
case, we explained:
If the presiding judge at the probation
revocation hearing also presided at the
probationer's criminal prosecution and the
judge deems it necessary or desirable to
consider evidence or aspects of the earlier
criminal proceeding as a basis for revoking
probation, the judge may in the exercise of
sound discretion consider such evidence,
provided that the judge delineates during
the evidentiary portion of the revocation
proceeding precisely the evidence that is
being considered.
Id. at 742, 441 S.E.2d at 32 (emphasis added). 	Hess
contemplates that the sentencing judge may or may not preside at
the revocation proceeding.
CONCLUSION
We find that the trial court did not promulgate a local rule
preventing the original judge from presiding at a revocation
proceeding. 	Accordingly, the trial court committed no statutory
violation.
We further hold that, because a revocation proceeding "is not
a stage of criminal prosecution," see Davis, 12 Va. App. at 84,
402 S.E.2d at 686, because such a proceeding may or may not take
place depending on future contingencies involving a probationer's
conduct, because our code and case law have consistently referred
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to the authority of "the court" rather than a specific judge to
conduct a revocation hearing, and because no statute or rule
places any restriction on a different trial judge presiding at a
subsequent revocation hearing, the same circuit court judge who
presides at a defendant's original trial is not required to
preside at a later revocation hearing. 	Accordingly, we affirm the
trial court.
Affirmed.
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