Charles McKinley Washington v. Commonwealth of Virginia, 0710161

Background

In 2012 Washington pleaded guilty on condition that successful completion of a drug treatment court program would lead the Commonwealth to recommend resuspension of a remaining two-year sentence; failure to complete would trigger imposition of the two years.
On September 15, 2015 the drug court terminated Washington from the program after positive drug tests; the transcript and order show he was present and listed counsel as representing him at that hearing.
The drug court termination did not itself revoke Washington’s suspended sentence; revocation could occur only in the circuit court in a revocation proceeding.
The circuit court held a revocation proceeding (Dec. 2015) where Washington testified and admitted multiple positive tests; the court found sufficient evidence of noncompliance and continued for sentencing with a presentence report waived, later ordered, and completed.
At sentencing (Apr. 2016) Washington argued he was denied due process (lack of notice/disclosure, no opportunity to cross-examine, no written reasons regarding drug court termination); the court found he had notice and an opportunity to be heard and imposed the agreed two-year sentence.
On appeal Washington argued the circuit court improperly failed to consider reasons/evidence for his drug-court termination and thus violated his Fourteenth Amendment due process rights; the Court of Appeals affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether circuit court violated due process by revoking suspended sentence without considering evidence/reasons for drug court termination	Washington: he was deprived of Morrissey protections (written notice, disclosure, confrontation, evidence, written reasons) and thus denied due process	Commonwealth: Washington had notice and opportunity to be heard in circuit court; drug-court termination is not itself revocation; any additional procedural complaints were not preserved	Held: No due process violation; Washington received required notice and hearing in circuit court and failed to preserve objections to any additional process
Whether termination by drug court alone revokes the liberty interest created by plea agreement	Washington: relied on Harris to argue he needed the circuit court to consider termination reasons; sought more process	Commonwealth: Harris requires circuit-court revocation hearing; drug-court termination is not final revocation and does not substitute for circuit court process	Held: Drug-court termination is not a revocation of the liberty interest; revocation occurs only by circuit court order (Harris controls)
Whether Washington waived right to additional process by failing to object/seek continuance or present requested evidence	Washington: claimed he never received discovery/lab reports and thus lacked evidence to defend	Commonwealth: he did not pursue remedies (no contemporaneous objections, no continuance, did not call probation officer) and failed to preserve issues	Held: Court found waiver/default of more specific Morrissey claims for failure to contemporaneously object
Whether record supported circuit court finding that Washington had counsel and was present at drug-court termination	Washington: disputed that he had counsel at drug-court hearing	Commonwealth: court orders and transcript list counsel; orders presumed accurate	Held: Record supports circuit court’s finding that counsel represented Washington at the drug-court hearing

Key Cases Cited

Harris v. Commonwealth, 279 Va. 541 (Va. 2010) (liberty interest from plea-based drug court participation; drug-court termination does not itself revoke that interest; circuit court must consider termination in revocation)
Morrissey v. Brewer, 408 U.S. 471 (U.S. 1972) (minimum due process for revocation proceedings: notice, disclosure, opportunity to be heard, confrontation, neutral decisionmaker, written statement)
Saunders v. Commonwealth, 62 Va. App. 793 (Va. Ct. App. 2014) (articulating Morrissey-derived minimum due process protections in Virginia revocation proceedings)
Peyton v. Commonwealth, 268 Va. 503 (Va. 2004) (circuit court may revoke a suspended sentence when defendant fails to comply with conditions tied to alternative programs; revocation hearing is not an appeal of program termination)