                                             COURT OF APPEALS OF VIRGINIA

              Present: Chief Judge Felton, Judges Humphreys and Kelsey
UNPUBLISHED


              Argued by teleconference

              JOSEPH WILEY
                                                                              MEMORANDUM OPINION* BY
              v.   Record No. 1136-12-4                                        JUDGE D. ARTHUR KELSEY
                                                                                     JULY 9, 2013
              COMMONWEALTH OF VIRGINIA

                                 FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                                              Joanne F. Alper, Judge

                                   Helen Randolph, Assistant Public Defender (Office of the
                                   Public Defender, on briefs), for appellant.

                                   David M. Uberman, Assistant Attorney General (Kenneth T.
                                   Cuccinelli, II, Attorney General, on brief), for appellee.

                     After the trial court revoked Joseph Wiley’s suspended sentences at his third probation

              violation hearing, Wiley requested permission to “say something.” App. at 122. The trial court

              explained that it had already ruled and ended the proceeding without hearing further from Wiley.

              On appeal, Wiley contends the court violated his right to allocute. He also challenges the

              imposition of his suspended sentences as an abuse of discretion. We hold the trial court erred in

              neither regard.

                                                                I.

                     In 2007, Wiley pled guilty to felony shoplifting in violation of Code § 18.2-103 and

              possession of burglary tools in violation of Code § 18.2-94. The trial court sentenced him to

              concurrent terms of three years in prison, of which all but four months were suspended. Within

              four months of the sentencing hearing, Wiley was again arrested for felony shoplifting from the




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
same store he had previously been convicted of shoplifting from. In 2008, Wiley pled guilty and

the trial court sentenced him to five years with all but twelve months suspended on the new

charge. The court revoked and resuspended the previous sentences imposed in 2007.

       In 2010, the trial court found Wiley had violated the terms of his probation by not

keeping in regular contact with his probation officer. At the revocation hearing, the court

engaged Wiley in a lengthy colloquy concerning the court’s expectations. At the end of this

colloquy, the court sought to confirm Wiley’s understanding of his responsibilities:

                 Court:   So you understand -- but let me ask you this, Mr. Wiley:
                          You do understand once you are released what you need to
                          do to avoid coming back here?

                 Wiley:   I know exactly what I need to do.

                 Court:   Because one misunderstanding --

                 Wiley:   I know, exactly.

                 Court:   -- but next time, you know --

                 Wiley:   Right.

                 Court:   -- it’s going to be a lot harder.

                 Wiley:   I know, exactly.

                 Court:   Okay. That’s all I need to know.

App. at 106. The trial court then entered an order revoking and resuspending his several terms of

incarceration.

       In 2011, Wiley’s probation officer reported that Wiley failed to keep in contact with his

probation officer, moved out of state without the permission of the probation officer, failed to

appear on outstanding warrants issued by the Arlington County General District Court, and failed

to provide proof that he attended substance abuse counseling. “This is Mr. Wiley’s third




                                                 -2-
violation of probation,” the probation officer stated. Id. at 2. The probation officer concluded

that Wiley’s “disregard for supervision makes him a risk to public safety” because he “is not

amenable to Community Supervision.” Id.

       At the revocation hearing in May 2012, the court heard extensive proffers from Wiley’s

counsel and the prosecutor. Wiley’s counsel did not ask to present evidence or to call Wiley to

testify on his own behalf. After hearing the proffers, the court stated:

                 I’ve been dealing with this case for a number of years now, and it
                 seems like we keep getting the same issue with Mr. Wiley. That is,
                 you know, basically catch me if you can. . . . [B]ased upon his
                 entire history with this case, and the probation officer’s concerns
                 as well, I do not think he’s amenable for supervision. I think if I
                 sent him out of here with a stern warning, as I did the last time; and
                 I’m sure I said for the second violation, one more violation and
                 that’s it. The bottom line is the same thing would happen again,
                 and I’m not going to take any more of the probation officer’s time
                 or taxpayers’ expenses for that.

Id. at 119-21. The court then revoked Wiley’s remaining suspended sentences and ordered that

they be served in full. Immediately after the court ruled, Wiley asked, “Can I say something?”

Id. at 122. The court responded, “I’ve already made my decision, sir.” Id. Wiley’s counsel did

not object to the court’s response, nor did he proffer what Wiley would have said if he had been

allowed speak.

                                                  II.

       On appeal, Wiley makes two arguments. He first contends that both constitutional due

process principles and Code § 19.2-298 guarantee him a right to allocution in probation

revocation hearings. See Appellant’s Br. at 3. The trial court violated that right, Wiley asserts,

when it refused to allow him to “say something,” App. at 122, after the court ruled on his

probation violation. Second, Wiley asserts that the court abused its discretion by revoking the

balance of his suspended sentences for violating the terms of probation. See Appellant’s Br. at 3.



                                                 -3-
                           A. ALLOCUTION & PROBATION REVOCATION

       Allocution permits a criminal defendant an opportunity to speak his peace just before a

court imposes his sentence. The common law right of allocution developed in England during an

era in which a criminal defendant could not testify in his own behalf. See McGautha v.

California, 402 U.S. 183, 217 n.20 (1971). In 18th century common law courts, “[a]llocution

therefore afforded a convicted defendant with his only opportunity to address the court.” Green

v. French, 143 F.3d 865, 881 (4th Cir. 1998), abrogated on other grounds by Williams v. Taylor,

529 U.S. 362 (2000). The ameliorating purpose of allocution has far less impact today given a

defendant’s right to testify in his own behalf, both during the trial and sentencing stages of a

criminal proceeding.1 But even if “the common law reasons or uses for allocution have long

since disappeared,” Paul W. Barrett, Allocution, 9 Mo. L. Rev. 232, 254 (1944), the right of

allocation survives in many states either in its common law form or by statute.

       Under settled law, a trial judge’s failure to invite a presentence allocution “is an error

which is neither jurisdictional nor constitutional. It is not a fundamental defect which inherently

results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary

demands of fair procedure.” Hill v. United States, 368 U.S. 424, 428 (1962). Like a multitude

of other courts, we have taken the point further by concluding “there is no constitutional right to



       1
         See Rock v. Arkansas, 483 U.S. 44, 49 (1987) (“At this point in the development of our
adversary system, it cannot be doubted that a defendant in a criminal case has the right to take
the witness stand and to testify in his or her own defense.”); McGautha, 402 U.S. at 218-19
(“Assuming, without deciding, that the Constitution does require such an opportunity” for the
accused “to present evidence or argument presumably relevant to the issues involved in
sentencing.”); see also Code § 19.2-268 (“In any case of felony or misdemeanor, the accused
may be sworn and examined in his own behalf . . . .); Code § 19.2-295.1 (“After the
Commonwealth has introduced in its case-in-chief of the sentencing phase such evidence of prior
convictions or victim impact testimony, or both, or if no such evidence is introduced, the
defendant may introduce relevant, admissible evidence related to punishment.”).



                                                -4-
an allocution before sentencing.” Montgomery v. Commonwealth, 56 Va. App. 695, 700, 696

S.E.2d 261, 263 (2010) (citing Hill, 368 U.S. at 428); see also United States v. Hoffman, 707

F.3d 929, 937 (8th Cir. 2013) (holding allocution “is not a constitutional right”); Green, 143 F.3d

at 880-81 (citing “many lower courts” which reject the claim of a “constitutional right to

allocution”).2

       Thus, to the extent a defendant has a right to allocute, it must arise either under the

common law or by statute. Wiley says it arises under both and applies to a probation revocation

proceeding. We are skeptical of these assertions.

       Suspended sentences did not exist under English common law at the time of the Founding

of our Commonwealth, Taylor v. Commonwealth, 58 Va. App. 435, 444-45, 710 S.E.2d 518,

522-23 (2011), and, of course, neither did probation revocation proceedings. The common law

recognized the right of allocution only at the time of the initial sentencing.3 Perhaps the common


       2
         Green acknowledged that a panel of the Fourth Circuit had stated in 1978, without any
precedential or analytical support, that the denial of a request for allocution “is a denial of due
process” rights, presumably under the Federal Constitution. Green, 143 F.3d at 882 (citing Ashe
v. North Carolina, 586 F.2d 334, 336 (4th Cir. 1978)). Green rejected this unsupported assertion,
as do we, as non-binding dicta and found it inconsistent with the consensus view of the majority
of “other state and federal courts.” Id.
       3
           Some courts and scholars have even suggested that the historic common law right of
allocution applied only to cases involving capital punishment. See McGrady v. Cunningham,
296 F.2d 600 (4th Cir. 1961) (“It was indispensably necessary at common law in capital cases
that a defendant should be asked before sentence if he had anything to say why sentence of death
should not be pronounced against him.” (internal quotation marks and citation omitted)); Shelton
v. State, 744 A.2d 465, 491 (Del. 1999) (“Allocution is a historic common-law right of a
defendant in a capital case.”); Tomlinson v. State, 647 P.2d 415, 416 (N.M. 1982) (“Historically
. . . the common law doctrine of allocutus provided the defendant an opportunity to speak on why
the sentence of death should not be imposed.”); Thomas J. Sullivan, The Capital Defendant’s
Right to Make a Personal Plea for Mercy: Common Law Allocution and Constitutional
Mitigation, 15 N.M. L. Rev. 41, 56-57 (1985) (“As applied in capital cases, the right of
allocution afforded a capital defendant forced to proceed without the benefit of counsel the
opportunity to express any reason why the court should not pronounce sentence after
conviction.”). Historical sources seem to support this limitation. See Anonymous, 87 Eng. Rep.
175, 3 Mod. 265 (1689) (reversing an attainder after “it [did] not appear that the party was asked


                                               -5-
law context could still could be analogized to modern revocation hearings, but the analogy would

be weak at best. A revocation proceeding is hybrid in nature. While it has some attributes of a

criminal proceeding, it “is not a trial for the commission of a new criminal offense,” Slayton v.

Commonwealth, 185 Va. 357, 366, 38 S.E.2d 479, 483 (1946), and thus “not entitled to the same

due process protections afforded a defendant in a criminal trial,” Downey v. Commonwealth, 59

Va. App. 13, 20, 716 S.E.2d 472, 475 (2011) (internal quotation marks and citation omitted).

       Maybe so, Wiley counters, but he still can claim a statutory right of allocution under

Code § 19.2-298. That statute requires allocution before “pronouncing the sentence” in criminal

cases in which the defendant has been found guilty. By its own terms, however, Code

§ 19.2-298 does not mention probation violation hearings. On the contrary, Code § 19.2-306,

entitled “Revocation of suspension of sentence and probation,” does mention probation violation

hearings, but makes no reference to allocution. Wiley argues the general language of Code

§ 19.2-298, recognizing allocution, trumps the more specific language of Code § 19.2-306,

which is silent on the subject. The Commonwealth, on the other hand, contends Code

§ 19.2-306’s silence, given its role as the more specific statute governing revocations, trumps the

express grant of allocution rights recognized by the general language of Code § 19.2-298.

       While these issues are interesting and important, we need not resolve them in this case.

We prefer instead to adhere to our traditional practice of relying upon “‘the best and narrowest



what he could say why the sentence of death shall not pass upon him”); Rex & Regina v. Geary,
91 Eng. Rep. 532, 2 Salk. 630 (K.B. 1689-1712) (same); The King v. Speke, 91 Eng. Rep. 872, 3
Salk. 359 (K.B. 1689-1712) (same); 4 William Blackstone, Commentaries of the Laws of
England *375 (1753) (“For when, upon a capital charge, the jury have brought in their verdict
guilty, in the presence of the prisoner, he is, either immediately, or at a convenient time soon
after, asked by the court if he has any thing to offer why judgment should not be awarded against
him.” (emphasis added)); 1 Joseph Chitty, Criminal Law *699-700 (1819) (“It is now
indispensably necessary, even in clergyable felonies, that the defendant should be asked by the
clerk if he has any thing to say why judgment of death should not be pronounced on him . . . .”).


                                               -6-
ground available’ for our decision,” Morris v. City of Va. Beach, 58 Va. App. 173, 180, 707

S.E.2d 479, 482 (2011) (quoting Armstead v. Commonwealth, 56 Va. App. 569, 576, 695 S.E.2d

561, 564 (2010)), and of resolving cases “on what we conceive to be the determinative points,”

id. (quoting Justice Herbert B. Gregory, Shorter Judicial Opinions, 34 Va. L. Rev. 362, 365

(1948)). “This approach encourages judicial self-restraint by avoiding the resolution of broad,

reasonably debatable legal issues when narrower, less debatable legal issues fully dispose of the

appeal before the court.” Foltz v. Commonwealth, 58 Va. App. 107, 114, 706 S.E.2d 914, 918

(2011) (en banc), aff’d on other grounds, 284 Va. 467, 732 S.E.2d 4 (2012).

       This principle is particularly important here because — even if Wiley had a common law

or statutory right to allocution — we must nevertheless determine whether any alleged violation

would be harmless. Code § 8.01-678 makes “harmless-error review required in all cases.”

Ferguson v. Commonwealth, 240 Va. ix, ix, 396 S.E.2d 675, 675 (1990) (emphasis in original

and text in parenthetical to statutory citation). The harmless error doctrine “puts a limitation on

the powers of this court to reverse the judgment of the trial court — a limitation which we must

consider on every application for an appeal and on the hearing of every case submitted to our

judgment.” Walker v. Commonwealth, 144 Va. 648, 652, 131 S.E. 230, 231 (1926); see also

Kirby v. Commonwealth, 50 Va. App. 691, 699, 653 S.E.2d 600, 604 (2007); Tynes v.

Commonwealth, 49 Va. App. 17, 23 n.3, 635 S.E.2d 688, 690 n.3 (2006).

        In this case, we cannot determine error — much less harmful error — without first

knowing what Wiley wanted to say when he asked to “say something.” App. at 122. It is

possible that he could have made his situation worse by saying something impertinent in

response to the court’s ruling. Cf. In re Pers. Restraint of Benn, 952 P.2d 116, 129 (Wash. 1998)

(“The only legitimate purpose for the allocution was for the defendant to express remorse and




                                                -7-
ask for mercy.”). He may have wanted to say he accepted the court’s ruling and had resigned

himself to the possibility that only incarceration would allow him to address his long history of

substance abuse. Perhaps, too, he sought to move the court’s conscience with a plea for mercy

with the kind of “halting eloquence” that bespeaks sincerity. Green v. United States, 365 U.S.

301, 304 (1961) (plurality opinion). Experienced trial judges have heard all of these responses

and more.

          We do not know which version of allocution, if any, Wiley intended to give. Neither

Wiley nor his counsel proffered what he wanted to say, either at the revocation hearing or in any

post-hearing motion. Thus, we can “only speculate as to the contents of appellant’s allocution.

Without a proffer, we have no indication whether any statement would tend to be mitigating or

aggravating.” Montgomery, 56 Va. App. at 704, 696 S.E.2d at 265. “Though sometimes

thought of as a mere waiver principle, the proffer requirement serves the higher purpose of

safeguarding our duty under Code § 8.01-678 to reverse only when the trial court error actually

prejudiced the defense.” Ray v. Commonwealth, 55 Va. App. 647, 650, 688 S.E.2d 879, 881

(2010).

          “Absent a proffer showing ‘harm was done,’ we are ‘forbidden to consider the

question.’” Montgomery, 56 Va. App. at 703, 696 S.E.2d at 264 (quoting Scott v.

Commonwealth, 191 Va. 73, 79, 60 S.E.2d 14, 16 (1950)).4 This principle tracks the proffer

requirement generally applicable to arguments on appeal that allege the trial court erroneously



          4
          We reject Wiley’s suggestion that the proffer requirement discussed in Montgomery
does not apply to his case because, there unlike here, the trial court invited a proffer. We find the
distinction immaterial. The question posed in Montgomery, and the answer we gave to it, was
clear: “The Commonwealth contends that appellant’s appeal cannot succeed because he did not
proffer his allocution statement for the record. We agree.” Montgomery, 56 Va. App. at 702,
696 S.E.2d at 264. It was not the absence of an invited proffer — but the absence of any proffer
at all — that precluded an appellate finding of prejudicial error in Montgomery.


                                                -8-
refused to consider testimony or evidence or improperly sustained objections. See id. (citing

Tynes v. Commonwealth, 49 Va. App. 17, 21, 635 S.E.2d 688, 689-90 (2006)).

       In short, Wiley’s failure to proffer what he would have said precludes appellate review of

his claim that the trial court erred by refusing to hear him out. It is as unnecessary as it is

impossible for us to resolve on appeal whether the “something” Wiley wanted to say, App. at

122, was something the trial court erroneously refused to hear.5

                              B. REVOCATION & ABUSE OF DISCRETION

       Wiley also challenges the trial court’s decision to revoke his suspended sentences and to

impose them in full. We find no merit in this assertion.

       On appeal, a revocation decision “will not be reversed unless there is a clear showing of

abuse of discretion.” Price v. Commonwealth, 51 Va. App. 443, 448, 658 S.E.2d 700, 702

(2008) (citation omitted). “Only when reasonable jurists could not differ can we say an abuse of

discretion has occurred.” Henderson v. Commonwealth, 59 Va. App. 641, 649, 722 S.E.2d 275,

279 (2012) (en banc) (citation omitted), aff’d, 285 Va. 318, 736 S.E.2d 901 (2013). In other

words, this deferential standard of review

               necessarily implies that, for some decisions, conscientious jurists
               could reach different conclusions based on exactly the same facts
               — yet still remain entirely reasonable. This bell-shaped curve of
               reasonability governing our appellate review rests on the venerable
               belief that the judge closest to the contest is the judge best able to
               discern where the equities lie.

Hamad v. Hamad, 61 Va. App. 593, 607, 739 S.E.2d 232, 239 (2013). When applying this

standard, we recognize the trial court “has a range of choice, and its decision will not be disturbed

as long as it stays within that range and is not influenced by any mistake of law.” Lawlor v.


       5
        Given our ruling, we need not address the Commonwealth’s related argument that Rule
5A:18 also precludes Wiley’s appellate challenge to the trial court’s decision.


                                                 -9-
Commonwealth, 285 Va. 187, 212-13, 738 S.E.2d 847, 861 (2013) (citation and internal

punctuation omitted).

       Code § 19.2-306 authorizes a circuit court to revoke a suspended sentence “for any cause

the court deems sufficient . . . .” A court “undoubtedly has the power to revoke” when the

defendant violates the conditions of his suspended sentence. Price, 51 Va. App. at 448, 658

S.E.2d at 702 (citation omitted). “The power of the court to revoke for breach of the terms and

conditions of probation should not be restricted beyond the limitations fixed by the statutes.” Id.

(quoting Rease v. Commonwealth, 227 Va. 289, 294, 316 S.E.2d 148, 151 (1984)).

       When coupled with a suspended sentence, probation represents “an act of grace” to the

criminal defendant. Id. at 448, 658 S.E.2d at 703. In doing so, the trial court “does not make a

contract with the accused, but only extends to him the opportunity which the State affords him to

repent and reform.” Marshall v. Commonwealth, 202 Va. 217, 219, 116 S.E.2d 270, 273 (1960)

(quoting Richardson v. Commonwealth, 131 Va. 802, 810, 109 S.E. 460, 462 (1921)). It is a

“free gift” intended to spur the defendant into turning his life around. Richardson, 131 Va. at

810, 109 S.E. at 462. In this case, Wiley received that grace on three occasions:

                   first, when the trial court in 2007 suspended nearly all active
                    incarceration after being convicted of felony shoplifting and
                    possession of burglary tools;

                   second, when the court in 2008 suspended most of his
                    sentence arising out of a second felony shoplifting incident
                    at the same store, while revoking and resuspending the 2007
                    sentences; and

                   third, when the court in 2010 again revoked and
                    resuspended Wiley’s several sentences after finding him in
                    violation of probation.

When Wiley appeared at his third revocation hearing in 2012, it was well within the trial court’s

discretion to agree with Wiley’s probation officer that Wiley’s “disregard for supervision” made



                                               - 10 -
him “a risk to public safety.” App. at 2. Wiley’s failure to keep in contact with his probation

officer — the most basic of probation conditions — fully warranted this regrettable conclusion.

                                               III.

       In sum, Wiley’s failure to proffer what he now claims to have been a belated attempt at

allocution precludes us from determining whether the trial court erred by refusing to hear it. We

also hold the trial court did not abuse its discretion by revoking Wiley’s suspended sentences.6

                                                                                         Affirmed.




       6
       The record reflects that Wiley’s notice of appeal identified Circuit Court No.
CR07-482(-04) but not Nos. CR07-483(-04) and CR07-1417(-02).


                                               - 11 -
