835 S.E.2d 918
Va. Ct. App.2019Background:
- Jenkins was convicted in 2003 of obtaining money by false pretenses and uttering a forged check, sentenced to 20 years with 14 years suspended and supervised probation.
- Probation officer Susan Sokol’s 2009–2010 report alleged three probation violations: a positive cocaine test (admitted use), absconding from supervision, and new misdemeanor charges.
- In 2010 Jenkins admitted violating his suspension; court revoked then resuspended 13 years and imposed one year to serve. Additional revocations occurred in 2014 and 2018.
- At the 2018 revocation hearing Jenkins conceded the current violation; the Commonwealth offered Jenkins’s criminal history and the 2010 probation report expressly for sentencing.
- Jenkins objected that admitting the 2010 report violated his confrontation/due process rights and improperly relitigated prior behavior; the trial court admitted the report for sentencing, relying in part on Jenkins’s 2010 acknowledgment and the report’s governmental sources, then imposed four years and resuspended the remainder.
- On appeal the central question was whether admitting the 2010 probation report in the sentencing phase of the 2018 revocation hearing violated due process by admitting testimonial hearsay without confrontation.
Issues:
| Issue | Jenkins' Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Whether admitting the 2010 probation report in the sentencing phase of the 2018 revocation hearing violated due process/Confrontation Clause | The 2010 report is testimonial hearsay; Jenkins had a limited right to confrontation and his 2010 admission alone was insufficient to establish the report’s reliability for admission in 2018 | Hearsay is admissible in sentencing if it bears some indicia of reliability; the 2010 plea, the probation officer’s personal contacts, criminal-history information, and minimal hearsay layers suffice | Admission was proper. The report was offered in the sentencing phase and met the lower "some indicia of reliability" standard, so revocation affirmed |
| Which evidentiary standard governs hearsay introduced in the sentencing portion of a revocation proceeding: the higher Henderson/Morrissey standard for assessment-of-wrongdoing or the lower sentencing standard (Moses) | Due-process protections governing revocation hearings should require more confrontation (argues Henderson protections apply broadly) | The sentencing phase is distinct from the assessment-of-wrongdoing phase and should be governed by the lower sentencing hearsay standard requiring "some indicia of reliability" | Court held revocation hearings have two phases; when evidence is introduced in the penalty/sentencing phase, the lower sentencing standard applies. Henderson governs the assessment-of-wrongdoing phase |
Key Cases Cited
- Henderson v. Commonwealth, 285 Va. 318 (2013) (establishes heightened review for admission of testimonial hearsay in the assessment-of-wrongdoing phase of revocation)
- Morrissey v. Brewer, 408 U.S. 471 (1972) (due process framework for parole/probation revocation proceedings)
- Moses v. Commonwealth, 27 Va. App. 293 (1998) (sentencing hearsay admissible if it bears some indicia of reliability)
- Blunt v. Commonwealth, 62 Va. App. 1 (2013) (distinguishes standards for guilt/assessment and penalty phases in revocation contexts)
- Wolfe v. Commonwealth, 37 Va. App. 136 (2001) (probation officer testimony with multilayer hearsay met indicia-of-reliability at sentencing)
- Cox v. Commonwealth, 65 Va. App. 506 (2015) (probation violation reports are testimonial hearsay for assessment-of-wrongdoing)
- Saunders v. Commonwealth, 62 Va. App. 793 (2014) (hearsay from one government official to another can possess reliability)
- Thomas v. Commonwealth, 18 Va. App. 656 (1994) (sentencing may rely on unadjudicated activity and hearsay in probation reports)