                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges McCullough, Chafin and Russell
UNPUBLISHED


              Argued at Richmond, Virginia


              ANDRE CORDELL MASON, JR.
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0312-15-2                                  JUDGE WESLEY G. RUSSELL, JR.
                                                                                DECEMBER 29, 2015
              COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
                                               Nathan C. Lee, Judge

                               James T. Maloney (Joseph D. Morrissey; James T. Maloney, PC;
                               Morrissey & Goldman, LLC, on brief), for appellant.

                               Aaron J. Campbell, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     Andre Cordell Mason, Jr., appellant, appeals the revocation of his suspended sentence

              stemming from his conviction on two counts of distributing cocaine. On appeal, appellant contends

              that the circuit court erred in allowing the Commonwealth to present evidence during the revocation

              hearing regarding allegations for which he had not received written notice. For the reasons that

              follow, we agree with appellant. Accordingly, we reverse the decision of the circuit court and

              remand the case for further proceedings if the Commonwealth be so advised.

                                                        BACKGROUND

                     Appellant was convicted on October 27, 2010, of two counts of distribution of cocaine and

              received a total sentence of ten years incarceration with eight years and eleven months suspended,

              subject to conditions. After serving the initial term of confinement, appellant was released on



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
probation. On May 23, 2014, a probation officer wrote a letter to the Hopewell Commonwealth’s

Attorney regarding appellant’s probationary status:

                      A Record Check investigation conducted reveals
               [appellant] was convicted on January 10, 2013 in Prince George
               County Circuit Court for Possession of Cocaine. He received ten
               (10) years with nine (9) years suspended for ten (10) years of good
               behavior. [Appellant] was placed on supervised [probation] to
               begin after his release from incarceration.

                      It is noted a detainer was placed on [appellant’s] release as
               he has pending charges for 1st Degree Murder, Malicious
               Wounding, Non-violent Felon Possession of Gun within 10 years
               of Offense and two counts of Use Firearm in Felony 1st Offense in
               Hopewell Circuit Court. The offense date for these charges is
               December 3, 2012.

       Based on this letter, the Commonwealth’s Attorney requested the circuit court to issue a

capias for appellant and to conduct a revocation hearing. The letter from the probation officer

was attached to the request.1 The circuit court ordered the issuance of a capias, directing

appellant to “show cause if any he can why he has failed to comply with the term and conditions

of his suspended sentence.”

       On January 21, 2015, the circuit court held a hearing to determine whether appellant had

violated the terms of his suspended sentence. As a preliminary matter, appellant objected to the

Commonwealth presenting any evidence of the details of appellant’s pending charges in Hopewell.2

While appellant agreed that the factual content of the probation violation letter was accurate and that

the charges were pending, he argued that the letter provided no details of the conduct underlying the

charges, and therefore, appellant did not receive proper notice of the allegations against him. As a


       1
        It is undisputed that appellant received a copy of the probation officer’s letter well in
advance of the revocation proceeding.
       2
          At the time of the hearing, the Hopewell charges had resulted in two mistrials and a
retrial was pending. In addition to the objection regarding an alleged lack of notice, appellant
also argued that the circuit court should “await a [final] disposition on [the Hopewell charges]
before going forward” with the Hopewell charges as a basis for revoking appellant’s probation.
                                                -2-
result, he argued, the Commonwealth should be prevented from presenting the specific bad acts

establishing the basis of the new charges.3

        In addition, the Commonwealth introduced copies of appellant’s arrest warrants from

Petersburg for offenses allegedly occurring on January 10, 2013. Specifically, the Commonwealth

introduced arrest warrants charging appellant with felony eluding and attempted capital murder.

The prosecutor stated his intent to introduce testimony from a detective and video evidence

regarding the incidents giving rise to the warrants.4

        Appellant objected, arguing that neither the warrants nor any behavior giving rise to the

warrants were mentioned in the notice of violation letter. Specifically, he argued that the Petersburg

charges were “not mentioned at all in the probation letter. . . . [The letter references] the conviction

in Prince George and . . . the pending charges in Hopewell.” Appellant contended this lack of

written notice of the Petersburg charges violated his due process rights and that he was not prepared

to address the Petersburg allegations that day.

        The Commonwealth responded by stating that it “[d]oesn’t matter whether it was mentioned

in that letter. That letter is not the totality of bad behavior the Commonwealth is about to

produce to the Court.” The Commonwealth also argued that appellant suffered no prejudice

from a lack of written notice because appellant’s counsel in the revocation proceeding was also




        3
         Appellant did not object to the Commonwealth introducing a copy of his conviction
order from Prince George Circuit Court for possession of cocaine. Although the trial was held
on January 10, 2013, the court entered its written order on January 28, 2013, and therefore, the
transcript refers to Exhibit One as the January 28, 2013 conviction.
        4
            The charges in Petersburg had been nolle prosequied prior to the revocation hearing.

                                                  -3-
his counsel on the Petersburg charges5 and that the Commonwealth previously had raised the

possibility that the Petersburg charges would be utilized during the revocation proceeding in a

conversation with appellant’s counsel.

        Having heard the arguments of the parties, the circuit court allowed the Commonwealth to

proceed on the allegations related to the Prince George conviction, the Hopewell charges, and the

Petersburg charges. The circuit court noted appellant’s exception to the ruling. Although the circuit

court never offered to continue the matter, it did state that “we’re going to proceed and I guess if I

get to the end and you convince me you need additional time to respond to some of this, I can

consider that.” Appellant never requested a continuance.

        During the presentation of the evidence, the Commonwealth called two inmates from

Riverside Regional Jail. Each witness testified that, while incarcerated, appellant admitted to

committing the murder that was the basis for the Hopewell charges. The Commonwealth also

called Detective B.W. Chester, who had investigated a shooting that occurred in Petersburg on

January 10, 2013. Detective Chester testified regarding appellant’s involvement in that incident and

that appellant eventually was charged with attempted capital murder, use of a firearm, and felony

eluding as a result of the investigation.

        At the close of the hearing, the court found appellant violated the terms and conditions of his

suspended sentence and imposed the eight years and eleven months that previously had been

suspended. In doing so, the circuit court detailed what it deemed a pattern of “violence” since the

original convictions, making specific reference to the Hopewell and Petersburg charges.



        5
          The Commonwealth recognized at oral argument that the fact that appellant’s counsel
for the revocation proceeding was the same as his counsel for the Petersburg charges did not
mean that appellant was not prejudiced by the lack of notice. The Commonwealth correctly
conceded that, despite a general familiarity with all of his cases, an attorney is likely better
prepared to argue those cases for which he has received notice that the case will, in fact, be
argued on that day.
                                                -4-
                                             ANALYSIS

       “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.’” Price v. Commonwealth, 51 Va. App. 443, 448, 658 S.E.2d 700, 703 (2008)

(quoting Pierce v. Commonwealth, 48 Va. App. 660, 667, 633 S.E.2d 755, 758 (2006)). Because

a probationer already has been convicted, a revocation proceeding “is not part of a criminal

prosecution and thus the full panoply of rights due a defendant in such a proceeding does not

apply . . . .” Morrissey v. Brewer, 408 U.S. 471, 481 (1971) (referencing parole proceedings); 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”).

       Although a probationer is not entitled to all of the protections afforded criminal defendants,

due process requires that certain protections be provided. Relevant here, the Virginia Supreme

Court has recognized that due process requires that the subjects of revocation proceedings be

provided (among other things) “written notice of the claimed violations of [probation] . . . .”

Henderson v. Commonwealth, 285 Va. 318, 326, 736 S.E.2d 901, 905 (2013) (emphasis added)

(quoting Morrissey, 408 U.S. at 489).

       Appellant argues that the circuit court neither should have admitted evidence regarding nor

considered the Hopewell and Petersburg charges/incidents at the revocation proceeding. Normally,

‘“the determination of the admissibility of relevant evidence is within the sound discretion of the

trial court subject to the test of abuse of that discretion.’” Holloman v. Commonwealth, 65

Va. App. 147, 168, 775 S.E.2d 434, 445 (2015) (quoting Beck v. Commonwealth, 253 Va. 373,

384-85, 484 S.E.2d 898, 905 (1997)). Here, however, appellant contends that the admission of

evidence regarding the Hopewell and Petersburg charges/incidents constituted a denial of due

process. “The application of the abuse of discretion standard of review is inappropriate when

                                                 -5-
considering [a] due process issue.” Henderson, 285 Va. at 329, 736 S.E.2d at 907. “[W]hether a

defendant’s due process rights are violated by the admission of evidence is a question of law, to

which we apply a de novo standard of review.” Id.

                                      Sufficiency of the Notice

       Appellant argues that he did not receive constitutionally sufficient notice regarding either

the Hopewell or Petersburg charges/incidents. We review each in turn.

       With respect to the Hopewell charges/incident, appellant concedes the charges are

referenced in the written notice that he received. He argues that, without an express statement that

the Hopewell incident would be a part of the revocation proceeding, the notice’s reference to the

existence of a detainer on those charges was insufficient to place him on notice that the incident in

Hopewell would be raised at the revocation proceeding. We disagree.

       Although due process requires that written notice be provided in post-conviction

proceedings, such notice is not to be equated with the notice requirements of a formal charging

document in a criminal proceeding. See Hines v. State, 358 So.2d 183, 185 (Fla. 1978) (The

written notice in revocation proceedings “need not be set forth with the specificity required in

criminal indictments and informations. The primary goal is notice comporting with minimal due

process rights.”). Rather, the due process protection is based primarily on concerns that the

administrative proceeding be conducted with basic fairness to the parolee or probationer.

Copeland v. Commonwealth, 14 Va. App. 754, 756, 419 S.E.2d 294, 295-96 (1992) (citing

Howie v. Commonwealth, 222 Va. 625, 283 S.E.2d 197 (1981)) (finding that due process

requirements for notice in post-conviction proceedings were satisfied by substantial compliance);

Logan v. Commonwealth, 50 Va. App. 518, 525-26, 651 S.E.2d 403, 406 (2007), rev’d on other

grounds, 276 Va. 533, 666 S.E.2d 346 (2008).




                                                 -6-
       Here, by way of the circuit court’s capias order, appellant had written notice that the

Commonwealth had initiated a revocation proceeding based on his alleged failure “to comply

with the term[s] and conditions of his suspended sentence.” Furthermore, from his receipt of the

probation officer’s letter that was the genesis of the proceeding, appellant knew that the

document initiating the revocation proceeding referenced both the Prince George conviction and

the circumstances leading to the Hopewell charges, either of which, if true, constituted violations

of the conditions of his suspended sentence. Although the better practice would have been for

the Commonwealth to provide expressly in the written notice that it intended to seek revocation

based on both the Prince George conviction and the incident in Hopewell, we find that,

considering all of the circumstances, appellant received sufficient notice regarding the Hopewell

charges/incident to satisfy the requirements of due process.

       The Petersburg charges/incident, however, are a different matter. None of the writings

provided to appellant referenced, in any way, the Petersburg charges. Confined to the writings

provided, no one would have anticipated that the Commonwealth would seek to admit evidence

about the events in Petersburg. At oral argument, the Commonwealth conceded this point,

stating that the notice regarding the Petersburg charges/incident was “probably inadequate.”

Although we are not bound by this concession,6 we concur that the complete absence of any

written notice even suggesting that the Petersburg incident might be raised at the revocation

proceeding fails to satisfy the limited due process interests a probationer has regarding notice.7


       6
        “[W]e are not bound by concessions of law by the parties.” Epps v. Commonwealth, 47
Va. App. 687, 703, 626 S.E.2d 912, 919 (2006) (en banc), aff’d on other grounds, 273 Va. 410,
641 S.E.2d 77 (2007).
       7
         In the proceeding below, the Commonwealth indicated that verbal notice had been
given to appellant’s counsel, stating that he had “mentioned this” to appellant’s counsel.
Assuming without deciding that there might be a circumstance in which verbal notice would be
sufficiently specific and detailed to render the failure to provide the required written notice
harmless error, we find this is not such a case.
                                                 -7-
Accordingly, it was error for the circuit court to admit and consider evidence related to the

Petersburg charges/incident.

                                          Harmless Error

       Having determined that the circuit court erred, we must determine whether that error was

harmless. “A due process violation at a revocation proceeding is subject to harmless error

analysis.” United States v. Verduzco, 330 F.3d 1182, 1184 (9th Cir. 2003) (internal quotation

marks and citations omitted). See also Code § 8.01-678.8

       Appellant candidly concedes that the circuit court could have revoked his suspended

sentence and imposed all of the previously suspended period of incarceration based on the new

conviction from Prince George alone. The Commonwealth, however, extensively argued that the

Petersburg charges/incident made revocation appropriate, and the circuit court did not limit the

basis for its imposition of the entire suspended sentence to the new conviction. Rather, in

imposing the previously suspended sentence in its entirety, the circuit court detailed what it

deemed a pattern of “violence” since the original convictions, making specific reference to the

events that formed the basis of the Petersburg charges. Thus, argues appellant, we cannot find that

the circuit court would have imposed the same sentence absent the improper consideration of the

Petersburg charges/incident; we agree.9



       8
          We need not decide if traditional harmless error review, see Kotteakos v. United States,
328 U.S. 750 (1946) (defining harmless error review as determining whether an error had a
“substantial and injurious effect or influence in determining the” outcome), or federal
constitutional harmless error review, see Chapman v. California, 386 U.S. 18, 23 (1967)
(“[B]efore a federal constitutional error can be held harmless, the court must be able to declare a
belief that it was harmless beyond a reasonable doubt.”), applies in this case because the error
was not harmless under either standard.
       9
          We note that, although the concession is not binding upon us, the Commonwealth
candidly conceded that, if consideration of the Petersburg incident were error, it was not
harmless because the circuit court’s comments made clear that the Petersburg incident was at
least part of the reason that all of the previously suspended sentence was imposed.
                                                  -8-
       The Virginia Supreme Court was faced with a similar scenario in Turner v. Commonwealth,

278 Va. 739, 685 S.E.2d 665 (2009). In Turner, the Court acknowledged that there was sufficient

admissible evidence before the circuit court to support the revocation of the suspended sentence, id.

at 744, 698 S.E.2d at 668, but recognized that such a finding did not render the erroneous admission

of evidence harmless. Specifically, the Court held that

               [w]e cannot, however, say that the error of receiving evidence [that
               should not have been considered] was harmless because we cannot
               ascertain from the record the extent, if any, to which the error may
               have contributed to the punishment imposed. The court had before
               it a spectrum of available penalties ranging from “Probation/No
               incarceration” . . . to revocation of the entire period of suspension,
               the penalty the court decided upon. From the argument of counsel
               and the court’s remarks at the revocation hearing, it appears likely
               that the evidence erroneously admitted was at least a contributing
               factor in the court’s decision.

Id. Based on the rationale of Turner, we cannot say that the circuit court’s erroneous

consideration of the Petersburg incident was harmless.

                                      Need for a Continuance

       Having conceded that the notice was “probably inadequate” and that appellant suffered at

least some prejudice from the lack of notice, the Commonwealth argues that reversal is

inappropriate because appellant failed to request a continuance. In essence, the Commonwealth

argues that appellant had a duty to save the Commonwealth from itself.




                                                -9-
       The Commonwealth relies heavily on our initial decision in Logan.10 In Logan, Logan

“claim[ed that] he was never given written notice of the nature of this alleged violation . . . ,” 50

Va. App. at 525, 651 S.E.2d at 406, and thus, argued that the proceedings failed to comport with

due process. We rejected his argument for two reasons. First, we found that the record “belie[d]

this argument” for Logan, in fact, had “received written notice from the Commonwealth and he

knew what probation violations were lodged against him.” Id. at 525-26, 651 S.E.2d at 406.

       Additionally, we noted that Logan effectively had waived his notice objection by his

conduct at the revocation proceeding. Specifically, we noted that Logan

               was given the opportunity to cure the purported defect in the
               notice. Appellant three times declined the trial court’s offer to
               continue this matter in order that he be properly served with notice.
               Indeed, no litigant, even a defendant in a criminal case, will be
               permitted to approbate and reprobate -- to invite error and then to
               take advantage of the situation created by his own wrong.
               Accordingly, appellant cannot now complain that the trial court
               erred in revoking his suspended sentence without notice when he
               himself refused to accept the court’s invitation to remedy any
               defect in service by continuing the matter to a later date.

Id. at 526, 651 S.E.2d 406-07 (internal quotation marks, alterations, and citations omitted).

       Unlike Logan, appellant never received written notice that even suggested that the

underlying events from Petersburg would be raised at the revocation hearing. Furthermore,

although he repeatedly argued before the circuit court that he was not prepared to go forward




       10
           As noted above, our initial decision in Logan (“Logan I”) was reversed by the Virginia
Supreme Court, which remanded the case to this Court for further proceedings. Logan v.
Commonwealth, 276 Va. 533, 666 S.E.2d 346 (2008). On remand, this Court issued another
published opinion, Logan v. Commonwealth, 53 Va. App. 520, 673 S.E.2d 496 (2009) (“Logan
II”). In turn, the Virginia Supreme Court affirmed the result in Logan II, but expressly overruled
this Court’s opinion “insofar as it may be read to suggest that [the Virginia Supreme Court’s]
holding in Anderson [v. Commonwealth, 251 Va. 437, 470 S.E.2d 862 (1996),] is in any way
altered.” Logan v. Commonwealth, 279 Va. 288, 294, 688 S.E.2d 275, 279 (2010). Because the
portion of Logan I related to a probationer’s rejection of an offered continuance was not
addressed in the case’s subsequent history, we continue to adhere to that portion of Logan I.
                                                - 10 -
regarding the Petersburg incident, appellant was never offered a continuance by the circuit court.

Thus, unlike Logan, appellant did not approbate and reprobate.

       Conceding that appellant was never affirmatively offered a continuance, the Commonwealth

contends that appellant was required to ask for one and points to a statement from the circuit court

that it would consider a request for a continuance, if one were made, after the evidentiary portion of

the proceeding was completed. An offer to continue a case and an offer to consider a request to

continue a case are different. Under the circumstances of this case, the difference is significant

enough that we decline to read Logan as requiring a litigant in appellant’s position to request a

continuance. Absent an actual offer of a continuance from the circuit court, appellant’s repeated

objections to the lack of notice and the resultant prejudice described above are sufficient to preserve

the issue for our review.

                                               Remedy

       Although appellant on brief requested that we reverse and dismiss the matter, appellant

conceded at oral argument that remand was appropriate. Accordingly, we remand the matter to

the circuit court for further proceedings consistent with this opinion if the Commonwealth be so

advised.

                                           CONCLUSION

       Because due process required the Commonwealth to provide appellant written notice of its

intention to seek revocation based on the Petersburg charges/incident, it was error for the circuit

court to consider the same. Accordingly, the judgment of the circuit court is reversed and the matter

remanded for further proceedings consistent with this opinion if the Commonwealth be so advised.

                                                                             Reversed and remanded.




                                                 - 11 -
