                                                                      COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Chafin and O’Brien
              Argued at Williamsburg, Virginia
UNPUBLISHED




              DANNY ANGELO MASSEY
                                                                                            MEMORANDUM OPINION* BY
              v.            Record No. 1670-17-1                                             JUDGE TERESA M. CHAFIN
                                                                                                 MARCH 5, 2019
              COMMONWEALTH OF VIRGINIA


                                                FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                                                              Mary Jane Hall, Judge

                                           J. Barry McCracken, Assistant Public Defender, for appellant.

                                           Leah A. Darron, Senior Assistant Attorney General (Mark R.
                                           Herring, Attorney General, on brief), for appellee.


                            On September 22, 2017, the Circuit Court of the City of Norfolk determined that Danny

              Angelo Massey violated the conditions of his probation by having contact with children and

              revoked his previously suspended sentence on that basis. On appeal, Massey contends that the

              circuit court erred by revoking his suspended sentence because his probation officer did not have

              the authority to impose the probation condition that he allegedly violated. Upon review, we

              conclude that Massey’s probation officer impermissibly imposed a probation condition that

              contradicted an express term of probation previously imposed by the circuit court.1 As the

                                                                          
                            *
                                Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                            1
                       In light of this determination, we do not address the additional arguments that Massey
              presents on appeal. Specifically, we decline to address Massey’s argument that the probation
              condition at issue was imposed “based on an ultra vires delegation of judicial discretion,” or his
              argument that he did not violate the condition imposed by his probation officer. While we
              acknowledge that Massey’s primary appellate argument focused on the delegation of authority to
              his probation officer, “[t]he doctrine of judicial restraint dictates that we decide cases on the best
              and narrowest grounds available.” Commonwealth v. White, 293 Va. 411, 419 (2017) (quoting
              Commonwealth v. Swann, 290 Va. 194, 196 (2015)).
revocation of Massey’s suspended sentence was based on his alleged violation of the improper

probation condition, we reverse the circuit court’s decision to revoke Massey’s suspended

sentence.

                                                               I. BACKGROUND

              Under standards analogous to those governing the appellate review of evidence presented

in criminal trials, we “view the evidence received at [probation revocation hearings] in the light

most favorable to the Commonwealth, as the prevailing party, including all reasonable and

legitimate inferences that may properly be drawn from it.” Henderson v. Commonwealth, 285

Va. 318, 329 (2013). So viewed, the evidence is as follows.

              On December 7, 2015, Massey was convicted of taking indecent liberties with a child in

violation of Code § 18.2-370. The circuit court held a sentencing hearing regarding the

conviction on April 8, 2016, and entered an order memorializing its sentencing decision on April

11, 2016.2 The circuit court sentenced Massey to four years of incarceration for the offense and

suspended two years of the sentence, resulting in an active two-year term of incarceration. The

circuit court suspended the unserved portion of Massey’s sentence for six years and placed him

on supervised probation for three years upon his release from custody.

              The circuit court expressly imposed several conditions of Massey’s probation. Among

other things, the circuit court prohibited Massey from having “any unsupervised contact with

minors including his grandchildren and other extended family members that are under the age of

[eighteen].” The circuit court then explained that any contact between Massey and children

“should be directly supervised by an adult who is aware of his conviction.” The circuit court




                                                            
              2
         While Judge Mary Jane Hall presided over the revocation proceedings at issue in this
appeal, Judge John R. Doyle, III, presided over the sentencing hearing pertaining to Massey’s
2015 indecent liberties conviction.
                                              -2-
also ordered Massey to “comply with all the rules and requirements set by [his] Probation

Officer.”

       Massey was placed on supervised probation on June 27, 2017, following his release from

incarceration. Theodore Harden, Massey’s probation officer, discussed the conditions of

Massey’s probation with him at that time. As Massey was a sex offender, Harden provided him

with twenty-six special sex offender instructions. One of these instructions stated “you will not

have any contact with anyone under the age of [eighteen]. Contact is defined as physical, verbal,

written or third party.” After discussing this instruction with Harden in more detail, Massey

indicated that he understood the conditions of his probation and signed a written version of the

conditions imposed by Harden.

       As Harden was driving home from work on August 9, 2017, he saw Massey playing with

two children in a church parking lot. The children appeared to be less than ten years old.

Harden noted that an adult was “maybe five steps away” from Massey and the children. Based

on his observations, Harden took Massey into custody. He later filed a “Major Violation Report”

alleging that Massey violated the conditions of his probation by having contact with children.  

       Catherine Baldwin, a pastor of the church where Harden saw Massey playing with the

children, testified at Massey’s probation revocation hearing. Baldwin testified that she went to

the church with her two grandchildren on August 9, 2017. Baldwin explained that Massey was

staying at the church on that day because he was homeless and that he did not know that she and

her grandchildren would be there. Baldwin testified that Massey spoke to her when she was at

the church, and she implicitly acknowledged that he was in close physical proximity to her

grandchildren. Baldwin explained, however, that she was “always close by” when Massey was

around the children and that she never left them alone with him. Baldwin also testified that she




                                               -3-
knew that Massey was a “convicted sex offender” due to a prior conviction based on his

“inappropriate behavior . . . with a child.”

       In his closing argument, Massey contended that Harden did not have the authority to

impose the probation condition prohibiting him from having any contact with minor children.

Citing several probation statutes, including Code § 19.2-304, Massey maintained that only the

circuit court had the “right to set the terms of probation” and the authority “to change and modify

probation” conditions. While Massey acknowledged that the circuit court previously ordered

him to comply with all of the rules set by his probation officer, he argued that his probation

officer could not impose a more restrictive probation condition “than what the court had already

specifically ordered.” Massey also argued that Harden “exceeded the court’s delegation . . . by

saying he [could have] no contact with children.”

       Massey noted that the circuit court previously imposed a probation condition allowing

him to have contact with children under the supervision of an adult who knew about his prior

conviction and that the circuit court had not modified that condition. He then argued that his

conduct on August 9, 2017, complied with the condition set by the circuit court. Therefore,

Massey maintained that he had not violated the terms of his probation, and he requested the

circuit court to refrain from revoking his suspended sentence on that ground.

       The circuit court disagreed with Massey’s argument, concluding that Massey’s prior

sentencing order required him to “first and foremost” follow the rules and requirements set by

his probation officer. As Harden told Massey that he could not have any contact with children,

the circuit court determined that Massey was bound by that condition. Notably, the circuit court

explained,




                                               -4-
                             I don’t think your probation officer could let you do something that
                             the court told you not to do, but I think the [converse]3 of that is
                             true. The probation officer can prohibit you from doing something
                             that the court didn’t say anything about and I think that’s where
                             this case falls.

              Ultimately, the circuit court concluded that Massey violated the conditions of his

probation by having contact with children, revoked his suspended sentence, and resuspended “all

but time served for the violation.” The circuit court also “restore[d] the balance of [Massey’s]

unexpired probationary period.” This appeal followed.

                                                               II. ANALYSIS

              On appeal, Massey contends that Harden did not have the authority to impose the

probation condition that he allegedly violated. Massey emphasizes that this probation condition

contradicted a specific condition previously imposed by the circuit court. While the circuit court

allowed Massey to have supervised contact with children, Harden prohibited Massey from

having any contact with them. Citing Code § 19.2-304, Massey argues that Harden could not set

the probation condition at issue “without judicial intervention.”

              To the extent that Massey’s argument raises an issue of statutory interpretation, it

presents “a question of law reviewed de novo on appeal.” Grimes v. Commonwealth, 288 Va.

314, 318 (2014). Upon reviewing Massey’s argument under this legal standard, we agree that

Harden did not have the authority to impose the probation condition at issue. Harden could not

contradict or otherwise modify an express condition of probation imposed by the circuit court in

Massey’s April 11, 2016 sentencing order.




                                                            
              3
         Although this term is transcribed as “congress” in the transcript of Massey’s revocation
hearing, the additional comments surrounding the term and the context of the overall discussion
imply that the circuit court judge likely said “converse” and that the transcription of the term as
“congress” was erroneous.
                                                 -5-
       In general, only courts can modify court orders, and then, they can only do so in limited

circumstances. Pursuant to Rule 1:1, “[a]ll final judgments, orders, and decrees, irrespective of

terms of court, shall remain under the control of the trial court and subject to be modified,

vacated, or suspended for twenty-one days after the date of entry, and no longer.” (Emphasis

added). Thus, in the absence of an exception to Rule 1:1, a court order may not be modified

more than twenty-one days after it has been entered.

       Code § 19.2-304 provides an exception to Rule 1:1 that allows a court to modify a

probation condition set forth in an otherwise final court order. In pertinent part, Code § 19.2-304

states that “[t]he court . . . may revoke or modify any condition of probation, but only upon a

hearing after reasonable notice to both the defendant and the attorney for the Commonwealth.”

Code § 19.2-304 does not expressly allow a probation officer to modify a probation condition

contained in a court order. Rather, it only allows a “court” to modify a probation condition more

than twenty-one days after a final order has been entered, following both reasonable notice to the

parties and a hearing regarding the proposed modification. See Code § 19.2-304.

       We acknowledge that Harden had some authority to define the conditions of Massey’s

probation pursuant to the April 11, 2016 sentencing order. In that order, the circuit court

expressly required Massey to “comply with all the rules and requirements set by [his] Probation

Officer.” (Emphasis added). Assuming without deciding that this delegation of authority was

permissible, we conclude that it did not allow Harden to modify the specific probation conditions

set forth in the April 11, 2016 sentencing order. Pursuant to Rule 1:1 and Code § 19.2-304, only

a court could modify the conditions expressly stated in that order.

       While the circuit court correctly noted that Harden could prohibit Massey from doing

something that was not addressed in the April 11, 2016 sentencing order, the circuit court

incorrectly determined that the sentencing order failed to address Massey’s contact with children.

                                                -6-
In that order, the circuit court expressly allowed Massey to have contact with children under the

supervision of an adult who knew about his prior conviction. Despite this express term, Harden

prohibited Massey from having any contact with children. Harden did not have the authority to

modify the April 11, 2016 sentencing order by imposing this condition. As Harden unilaterally

imposed the condition without obtaining judicial approval or following the procedure provided in

Code § 19.2-304, the condition was ineffective. Thus, Massey remained subject to the probation

condition originally imposed by the circuit court in the April 11, 2016 sentencing order.

       The circuit court’s decision to revoke Massey’s suspended sentence was based on his

alleged violation of the ineffective probation condition set by Harden. Specifically, the circuit

court concluded that Massey violated the conditions of his probation by having contact with

children. The evidence presented at Massey’s revocation hearing, however, failed to establish

that he violated the condition imposed by the circuit court in the April 11, 2016 sentencing order.

Although Massey had contact with children in the church parking lot on August 9, 2017, this

contact was supervised by an adult who was aware of Massey’s prior conviction. At the

revocation hearing, Harden candidly admitted that an adult was “five steps away” from Massey

and the children, and Baldwin testified that she never left the children alone with Massey.

       We are mindful that “‘[t]he sufficiency of the evidence to sustain an order of revocation

is a matter within the sound discretion of the trial court’” and that “‘[i]ts findings of fact and

judgment thereon are reversible only upon a clear showing of abuse of discretion.’” Alsberry v.

Commonwealth, 39 Va. App. 314, 320 (2002) (quoting Hamilton v. Commonwealth, 217 Va.

325, 327 (1976)). Nevertheless, we conclude that the circuit court abused its discretion by

revoking Massey’s suspended sentence in this case. The circuit court based its decision on an

ineffective probation condition, and the evidence presented at the revocation hearing failed to

establish that Massey violated the binding term of his probation.

                                                 -7-
                                       III. CONCLUSION

       In summary, we conclude that Harden did not have the authority to impose the probation

condition that Massey allegedly violated. Harden could not modify a specific probation

condition expressly set forth in the April 11, 2016 sentencing order without obtaining approval

from the circuit court pursuant to the requirements of Code § 19.2-304. As the probation

condition imposed by Harden that prohibited Massey from having any contact with children was

ineffective, the circuit court erred by revoking Massey’s suspended sentence based on his

violation of that condition. For these reasons, we reverse the circuit court’s decision and dismiss

the revocation proceeding.

                                                                          Reversed and dismissed.




                                               -8-
