                                           COURT OF APPEALS OF VIRGINIA


            Present: Chief Judge Huff, Judge Humphreys and Senior Judge Bumgardner
PUBLISHED


            Argued at Salem, Virginia


            LESLIE HERMANED GREEN, JR.
                                                                               OPINION BY
            v.     Record No. 0174-15-3                                 JUDGE ROBERT J. HUMPHREYS
                                                                             DECEMBER 1, 2015
            COMMONWEALTH OF VIRGINIA


                            FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
                                         Marcus H. Long, Jr., Judge

                           Wade M. McNichols for appellant.

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


                   Leslie Hermaned Green, Jr. (“Green”) appeals the January 7, 2015 ruling of the Circuit

            Court of Montgomery County (the “circuit court”) finding him guilty of violating the terms and

            conditions of his probation and revoking the remaining two years of his suspended sentence.

            Green’s single assignment of error is that the circuit court “erred by denying the appellant’s

            motions to strike the evidence where said motions argued that the court was punishing the

            appellant for behavior that had already been punished in a previous probation violation

            proceeding.”

                                                     I. BACKGROUND

                   On December 19, 2012, Green was convicted of indecent liberties with a child under the

            age of fifteen in violation of Code § 18.2-370(A) pursuant to a plea agreement in the circuit

            court. He was sentenced to five years in prison, with four years and five months suspended, and

            five years’ supervised probation. The circuit court order contained a special condition

            prohibiting Green from having contact with the victim, K.R., or any member of the victim’s
family and to register as a sex offender with the Virginia State Police. Green received credit for

time served, and his supervised probation began on December 19, 2012.

       A circuit court revocation order, dated October 9, 2013, found Green in violation of his

probation. The October 2013 revocation order stated that “having heard a report from the

probation officer and any additional facts bearing upon this matter” the court “imposes the 4

years and 5 months that was previously suspended and re-suspends 2 years.” This meant Green

must be incarcerated for two years and five months. Green was also placed on five years’

supervised probation after his release from incarceration.

       On January 7, 2015, the circuit court entered a second revocation order against Green,

which is the subject of this appeal. The January 2015 revocation order stated that “having heard

a report from the probation officer and any additional facts bearing upon this matter” the court

“imposes the 2 years that was previously suspended [by the October 2013 revocation order].”

       During the January 2015 revocation hearing, Green introduced into evidence the

September 30, 2013 probation violation report (the “September 2013 report”) prepared by

Probation and Parole Officer J.C. Castillo (“Castillo”) that was associated with the October 2013

revocation hearing. The September 2013 report alleged that Green violated three conditions of

his supervised release. First, that he did not follow “the Probation and Parole Officer’s

instructions and will be truthful, cooperative, and report as instructed.” Second, that Green had

contact with the victim, K.R., which violated the specific condition that he must have no contact

with the victim, K.R., or any member of the victim’s family. Third, that Green failed to abide by

all sex offender special instructions.

       The support contained in the September 2013 report for the first probation violation

condition is that Green was instructed to enter a sex offender treatment group on June 24, 2013.

On July 10, 2013, his next report date, Green had yet to enter a sex offender group and was

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reminded that he must enter the group. By August 5, 2013, Green still had not entered a sex

offender group.

              Regarding the second violation condition, the September 2013 report stated that, on

August 5, 2013, Green “was arrested on charges of sexual battery, indecent liberties and

contributing to the delinquency of a minor.” The September 2013 report contains a written

summary of an investigative report by the Blacksburg Police Department that was provided to

the Probation and Parole office. This investigative report summary stated that on August 5,

2013, the Blacksburg police responded to a call that “Green was attempting to kiss a minor

female K.R.” According to the September 2013 report’s summary, “Green had approached

[K.R.] near lot #146 at the trailer park and began rubbing his hand up and down her left arm, he

then moved his hand down to her buttocks and asked her ‘[w]hen are me and you going to have a

baby together?’” Further, the summary of the investigative report stated that the victim could

smell alcohol on Green’s breath.

              The support contained in the September 2013 report for the third violation condition is

that Green failed to abide by the sex offender special instructions he signed on December 21,

2012. Under Section C of his special instructions, Green was not to purchase, consume, or

possess alcohol.1 Section D restricted Green from having “any contact with any minors and it

defined contact as physical, verbal, written or via third party.” The September 2013 report

incorporates its earlier allegations of the contact with the victim, K.R., as support for violating

Section D.

              At the January 2015 revocation hearing, the Commonwealth introduced into evidence the

December 31, 2014 probation violation report (the “December 2014 report”) prepared by

Castillo. The December 2014 report alleged that Green violated one condition of his supervised
                                                            
              1
         There is no direct allegation contained in the report that Green violated Section C other
than that the victim could smell alcohol on Green’s breath.
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release; that he would obey all federal, state and local laws and ordinances. According to the

December 2014 report, on May 5, 2014, Green was convicted in the circuit court on one count of

indecent liberties against a minor, of misdemeanor sexual battery, and one count of misdemeanor

contributing to the delinquency of a minor. The offense date for all charges was August 5,

2013.2 Green was sentenced to ten years for the felony count and twenty-four months for the

misdemeanors, with seven years and five months suspended on the felony and twenty-four

months suspended for the misdemeanors. Also, Green was placed on seven years of supervised

probation upon his release.

              During the January 2015 revocation hearing, Castillo testified that Green was in violation

of his probation in October 2013 because he did not attend “treatment as instructed and he was in

violation for having contact with the specific victim of his original case.” In response to the

Commonwealth’s question, “Green is before this court now because he has a new conviction; is

that correct?” Castillo responded, “[t]hat is correct . . . Mr. Green has a conviction for indecent

liberties against a minor.”

              During cross-examination, Green asked Castillo, “[a]nd that indecent liberties charge and

the associated misdemeanors, those were pending in October 2013, is that right?” Green also

asked “[a]nd, in fact, those are specifically addressed in your probation violation report, dated

September 30, 2013 . . . ?” Castillo replied “[t]hat is correct,” to both questions. Additionally,

Green asked, “[s]o you have no information about, there’s nothing in your [December 31, 2014]

report about any more contact with the victim since August 2013?” In response, Castillo

testified, “[n]o, he has been incarcerated.”

              On redirect, the Commonwealth asked a series of questions. The exchange between the

prosecutor and Castillo went as follows:
                                                            
              2
       These are the convictions of the August 5, 2013 charges that were included in the
September 2013 report.
                                            -4-
               Q.      It looks like for the first probation violation from 2013 you
               noted several conditions where [Green] allegedly violated his
               probation. Those conditions appear to be failure to follow your
               instructions regarding the sex offender treatment; is that correct?

               A.      That is correct.

               Q.      Another condition is to have no contact with his victim for
               the original crime; is that correct?

               A.      That is correct.

               Q.      And the last condition is abide by all sex offender special
               instructions; is that correct?

               A.      That is correct.

       At the close of the Commonwealth’s evidence, Green made a motion to strike the

evidence stating that “the Commonwealth has . . . essentially already attempted to punish []

Green for these violations that he was convicted of in May [2014] and that this is basically an

attempt to punish him again for essentially the same behavior.” The circuit court overruled

Green’s motion to strike the evidence. The circuit court stated, “there are different levels of

violations too. This is a Number 1 violation for a conviction. In the prior one, that wasn’t set

forth as evidenced by the guidelines. So I do believe there is a difference and there is a

conviction presently so your motion is overruled.” Green renewed his motion to strike the

evidence. The circuit court held that sufficient evidence existed to find Green in violation of his

probation. The circuit court’s reasoning at the second revocation hearing was that Green does

“have a conviction where before [he was] found guilty of a number of things, and the conviction

was not present at that time. And there is a difference.”

                                           II. ANALYSIS

                                      A. Standard of Review

       This Court views “the evidence in a light most favorable to [the appellee], the prevailing

party below, and we grant all reasonable inferences fairly deducible from that evidence.”
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Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991) (citation

omitted). “In reviewing a double jeopardy claim, or a claim based on statutory interpretation,

this Court shall conduct a de novo review.” Tharrington v. Commonwealth, 58 Va. App. 704,

710, 715 S.E.2d 388, 390 (2011) (quoting Davis v. Commonwealth, 57 Va. App. 446, 455, 703

S.E.2d 259, 263 (2011)). Yet, in appeals from revocation proceedings, the trial court’s “findings

of fact and judgment 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). This Court evaluates

whether a trial court abused its discretion not by substituting its judgment for that of the trial

court, rather it considers “only whether the record fairly supports the trial court’s action.”

Grattan v. Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009) (quoting Beck v.

Commonwealth, 253 Va. 373, 385, 484 S.E.2d 898, 906 (1997)). An abuse of discretion occurs

only when reasonable jurists could not differ. Thomas v. Commonwealth, 44 Va. App. 741, 753,

607 S.E.2d 738, 743, adopted upon reh’g en banc, 45 Va. App. 811, 613 S.E.2d 870 (2005).

                            B. Double Jeopardy in Probation Hearings

       Green asks that we consider as a matter of first impression in the Commonwealth whether

his constitutional right not to be placed in jeopardy more than once for the same offense was

violated by the manner in which the trial court determined that he had violated the terms and

conditions of probation and activated portions of his suspended sentence.

       The Fifth Amendment guarantee against double jeopardy consists of three separate

constitutional protections. North Carolina v. Pearce, 395 U.S. 711, 717 (1969). “It protects

against a second prosecution for the same offense after acquittal. It protects against a second

prosecution for the same offense after conviction. And it protects against multiple punishments

for the same offense.” Id. However, the clause in the Fifth Amendment which prohibits double

jeopardy “is not properly invoked to bar a second prosecution unless the ‘same offen[s]e’ is

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involved in both the first and the second trials.” United States v. Ewell, 383 U.S. 116, 124

(1966). Protections against double jeopardy provided under the United States Constitution are

“identical with those embodied in Article I, section 8 of Virginia’s Constitution.” Bennefield v.

Commonwealth, 21 Va. App. 729, 739, 467 S.E.2d 306, 311 (1996). Accordingly, Virginia

courts have “consistently held that the protections afforded under the Virginia Constitution are

co-extensive with those in the United States Constitution.” Id. at 739-40, 467 S.E.2d at 311.

       However, as the Supreme Court of the United States has observed, “[t]he Double

Jeopardy Clause does not provide the defendant with the right to know at any specific moment in

time what the exact limit of his punishment will turn out to be.” United States v. Difrancesco,

449 U.S. 117, 137 (1980). While it is without doubt that some minimal procedural safeguards

attach in a probation hearing setting, “[t]here is no double jeopardy protection against revocation

of probation and the imposition of imprisonment.” Id. at 137. A revocation of a suspended

sentence does not involve multiple punishments for the same offense but rather the single

punishment already imposed for the offense or offenses convicted of and the degree to which

that punishment will be executed at a later time. Green’s assignment of error assumes that the

protections of the Fifth Amendment apply in a probation violation proceeding. However,

Difrancesco makes it clear that they do not. Therefore, the circuit court did not err by denying

Green’s motion to strike based on any former jeopardy.

                                             C. Due Process

       While double jeopardy does not apply in the probation setting, certain due process rights

do attach. In the case of a probation violation proceeding, the revocation hearing is not “a stage

of criminal prosecution,” and 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.”

Price v. Commonwealth, 51 Va. App. 443, 446, 658 S.E.2d 700, 702 (2008) (quoting Logan v.

                                               -7-
Commonwealth, 50 Va. App. 518, 525, 651 S.E.2d 403, 406 (2007)). Nevertheless, a

probationer is entitled to 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.” Price, 51 Va. App. at 446-47, 658 S.E.2d at 702 (quoting Gagnon v. Scarpelli, 411

U.S. 778, 786 (1973) (citation omitted)). In this case, Green did not provide a sufficient record

for this Court to review in order to reach a decision regarding any possible due process

violations.

               [O]n appeal the judgment of the lower court is presumed to be
               correct and the burden is on the appellant to present to us a
               sufficient record from which we can determine whether the lower
               court has erred in the respect complained of. If the appellant fails
               to do this, the judgment will be affirmed.

Smith v. Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6 (1993).

       According to Green, the sole reason he was found to be in violation of his probation at

the October 2013 revocation hearing is because he had contact with K.R. in violation of a special

condition of his probation. The contact occurred on August 5, 2013, the same day Green was

charged with indecent liberties, sexual battery, and contributing to the delinquency of a minor.

He further claims the sole reason for the circuit court’s January 2015 revocation was that he was

convicted of new crimes which all stem from the same required element of proof—that he had

contact with the victim, K.R., on August 5, 2013.

       We cannot reach the merits of Green’s assignment of error because, as the appellant, he

failed to provide this Court with a sufficient record that would enable us to do so. The record is

clear that there were three possible probation conditions that were alleged to have been violated

that the circuit court could have relied on to revoke Green’s suspended sentence at the October

2013 revocation hearing. The three possible grounds for violation were 1) that Green did not

follow the Probation and Parole officer’s instructions and would be truthful, cooperative, and

                                               -8-
report as instructed, 2) that Green had contact with the victim, K.R., which violated the specific

condition that he must have no contact with the victim, K.R., or any member of the victim’s

family, and 3) that Green failed to abide by all sex offender special instructions.

              A court acts only through written, signed orders. Bennett v. Commonwealth, 33

Va. App. 335, 344, 533 S.E.2d 22, 27 (2000). The October 2013 revocation order does not

provide this Court with any indication of which allegations the circuit court based its revocation

decision upon. The order only states that it revoked Green’s suspended sentence “having heard a

report from the probation officer and any additional facts bearing upon this matter.” No

transcript was provided by Green for this Court to even infer which among the three possible

violations the circuit court found sufficient as the basis for its decision. See Justis v. Young, 202

Va. 631, 632, 119 S.E.2d 255, 256 (1961). Without an adequate record, this Court cannot

determine whether or not Green was not provided his minimal due process rights required in a

probation violation hearing. 3

                                                               III. Conclusion

              Double jeopardy protections do not apply in probation violation hearings. While

minimum due process rights do apply at probation violation hearings, Green failed to provide




                                                            
              3
         Green’s assignment of error did not address the statute that controls probation
revocations. See Code § 19.2-306. Virginia has codified the protection of double jeopardy for
probation revocation hearings.
                             If any court has, after hearing, found no cause to impose a sentence
                             that might have been originally imposed, or to revoke a suspended
                             sentence or probation, then any further hearing to impose a
                             sentence or revoke a suspended sentence or probation, based solely
                             on the alleged violation for which the hearing was held, shall be
                             barred.
Code § 19.2-306(D). Since the statute was not raised as an assignment of error, this Court will
not address the merits of a statutory argument.
                                                                    -9-
this Court with a sufficient record in order to determine if any violation of due process occurred.

Accordingly, we affirm the circuit court’s judgment.

                                                                                         Affirmed.




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