Lead Opinion
James Carroll (“Carroll”) argues that 1) the trial court erred in finding that he violated the conditions of his probation by refusing to admit that he committed the crime charged during court-ordered sex offender treatment because he had entered his guilty plea while asserting his innocence pursuant to North Carolina v. Alford,
FACTS
On September 6, 2007, pursuant to a plea agreement with the Commonwealth, Carroll entered a guilty plea to rape in violation of Code § 18.2-61 while asserting his innocence pursuant to the United States Supreme Court’s decision in Alford,
During Carroll’s guilty plea hearing, the trial court asked him several questions about whether he understood his Alford plea.
THE COURT: What is an Alford plea?
[DEFENDANT]: It’s a plea where you’re pleading guilty, sir, and—
THE COURT: No, you’re not pleading guilty.
[DEFENDANT]: Well, what the plea is, it says that the prosecutor feels he has enough evidence to convict me even though I don’t think I’m guilty of the crime.
*734 THE COURT: And you don’t want to take that chance.
[DEFENDANT]: Correct.
THE COURT: In other words, you didn’t want to roll the bones.
[DEFENDANT]: I don’t play the lottery.
THE COURT: Excuse me?
[DEFENDANT]: I don’t play the lottery.
THE COURT: Okay. Now, do you realize—do you understand that the legal consequences of an Alford plea are the same as a guilty plea or a finding of guilt?
[DEFENDANT]: That’s what I’m told.
THE COURT: But do you understand that?
[DEFENDANT]: I understand as best that I have from what my attorney has told me, yes, sir.
THE COURT: Did you need more time to talk to your attorney?
[DEFENDANT]: No, sir. I mean, he’s explained.it to me.
THE COURT: Well, then, do you understand what he’s saying to you?
[DEFENDANT]: Yes, sir.
THE COURT: I have to be convinced that you know what you’re doing.
[DEFENDANT]: Yes, sir. I know what I’m doing.
(Emphasis added).
The trial court then accepted Carroll’s plea and continued the case to September 14, 2012. One provision of the trial court’s order was that: “The Defendant shall comply with all the rules and requirements set by the Probation Officer. Probation shall include any substance abuse counseling, testing, and/or treatment as prescribed by the Probation Officer.” On October 9, 2007, Carroll again appeared in court for a hearing on his motion to amend provisions of the sentencing order. Carroll’s motion asked the court for an order that his probation be administered and supervised by the Arlington County probation office, that his travel within the Commonwealth be unrestricted to accommodate his work as a realtor,
After this hearing, Carroll enrolled at the Center for Clinical and Forensic Services, Inc. (CCFS) for sex offender treatment. On May 7, 2008, Cynthia Urick, of CCFS, wrote a letter to Carroll’s probation officer. According to the letter:
When Mr. Carroll began treatment at CCFS, he was placed in Phase 1 of the process. During this component of treatment, offenders are introduced to foundational concepts associated with sex offender treatment (e.g. Denial and Consent) and are required to present full disclosure of their referral offense and sexual history. In addition, the polygraph is used as a treatment tool to verify the offender’s self-reported history. When Mr. Carroll began services at CCFS, he denied all accounts of the offense he was convicted of and indicated that he was “set up” by his ex-wife. Efforts to engage him in discussions about the offense did not produce a change in his position. In fact, he became hostile and resistant when asked about the specific details. As a result, he was referred for an instant offense polygraph, which he took on March 28, 2008. On the exam, he denied questions related to ever having sexual intercourse or sexual contact with his stepdaughter and the result was “deception indicated.” Subsequent to the exam, Mr. Carroll was again presented with several opportunities to take responsibility for the offense but he failed to do so.
Mr. Carroll has been in treatment for approximately two months and has made no forward progress regarding accepting responsibility for the crime for which he was convicted. Insofar as there is no indication that he will make*736 the needed change, Mr. Carroll is being unsuccessfully discharged for lack of amenability.
The court issued a bench warrant for Carroll’s arrest for violating the conditions of his probation and, on June 13, 2008, held a hearing on the allegations. Carroll’s attorney denied that he was in violation, and the court heard evidence from the probation office, including the letter from CCFS describing the reasons for Carroll’s discharge from the program. The court announced that it did not consider the part of the letter referring to polygraph testing. At the close of the evidence, Carroll argued that he was not in violation of his probation because of the trial court’s acceptance of his Alford plea. He did not argue that the court could not find him in violation because of the terms of any plea agreement. The trial court found Carroll in violation of his probation, convicted him of the rape charge, sentenced him to five years in prison, with all five years suspended, and ordered him to complete five years of supervised probation and to successfully complete sex offender treatment.
Carroll also argued that the court should order individual therapy. His attorney proffered that Dr. Stan Saminov, who holds a Ph.D and has dealt with sex offense cases before, would be willing to provide treatment for Carroll. Instead of ordering individual therapy, the court’s order requires Carroll to “enter and complete sex offender treatment as required by his Probation Officer.”
ANALYSIS
I.
Scope of the Issues Presented for Review
The greater part of the dissent’s criticism of our decision concerns the terms of the plea agreement Carroll made with the Commonwealth. This agreement was recorded in a written document, signed by the parties, that includes an integration clause stating that “I understand that the judge will not enforce any agreement not written down here.” Sex
The reason we may not consider the plea agreement terms is that they are not a basis for reversal permitted by our Rules of Court. According to Rule 5A: 12(c): “Only questions presented in the petition for appeal will be noticed by the Court of Appeals.” Carroll petitioned for, and was granted, an appeal on the following two questions:
1) Whether the trial court erred in finding Appellant in violation of probation based solely on Appellant’s refusal to admit to rape during sex offender therapy given the fact that the Commonwealth agreed to and the court accepted an Alford plea?
2) Whether the trial court erred in not considering a reasonable alternative treatment modality (sex offender treatment with an expert forensic psychologist) in lieu of probation revocation coupled with the condition of successfully completing the same program from which appellant was terminated?
Neither question asks us to consider whether the trial court’s decision finding that Carroll was in violation of his probation was a breach of the terms of the plea agreement Carroll made with the Commonwealth. Accordingly, the dissent’s emphasis on the general rule that plea agreements are enforced under contract principles, while correct as a statement of the law, see Wright v. Commonwealth,
The dissenting opinion’s discussion of the plea agreement suggests, however, that its terms are necessarily connected to our resolution of the first of Carroll’s questions presented. Specifically, the dissent adduces “two important reasons” for disagreeing with our conclusion:
*738 (1) there is a fundamental inconsistency between appellant’s claim of innocence implicit in his making a plea agreement to the underlying charge pursuant to Alford and a subsequently and unilaterally imposed probation condition requiring that appellant admit to the same charge during sex offender treatment; and (2) the plea agreement in the instant case, which by its very nature is a contract entered into by the Commonwealth and appellant and approved by the trial court, contained no probation condition that the appellant sacrifice his contractual prerogatives under his Alford plea and admit to the underlying charge in sex offender treatment.
Infra at 751-58,
We agree that the dissent presents two separate arguments: (1) that the trial court’s finding that Carroll was in violation of his probation was error because Carroll’s Alford plea gave him an enforceable prerogative to maintain his innocence; and (2) that the same finding was error because the terms of Carroll’s plea agreement gave him an enforceable prerogative to maintain his innocence. The dissent describes these separate arguments in successive clauses, each of which assigns importance both to the Alford plea and the plea agreement. Thus, the dissent reasons that these arguments are logically intertwined and legally inseparable, that is, that one cannot reach the merits of the Alford plea question narrowly raised on appeal without first resolving the merits of the plea agreement question, which is,' simply stated, not before us for resolution. Our analysis follows.
We know the plea agreement’s terms have no necessary connection to the issue of Carroll’s Alford plea because, under the contract principles relied upon by the dissent, the argument—1) that the agreement was recorded in a written document; 2) that the document included an integration clause stipulating that all the terms of the agreement were in the document; and 3) that the document contained no specific requirement that Carroll undergo sex offender treatment or admit his guilt during that treatment—would be an equally valid argument, even if Carroll had entered a standard, non-
In Clifford, the defendant objected in the trial court to its refusal to allow him to cross-examine the complaining witness about a prior complaint of sexual abuse against another person, not the defendant. At trial, the defendant argued such questioning should be permitted, despite the Rape Shield statute, because such questioning tended to show the complaining witness had access to law enforcement, and yet did not make a contemporaneous complaint about the defendant’s conduct. Id. at 23,
However, the application of Rule 5A:12(c) is not uniformly rigid. See Moore v. Commonwealth,
Even if we assume that the Moore dissent correctly analyzed the 5A: 12(c) issue, an issue apparently not reached by the Supreme Court decision that is binding on us, the Rule would still bar our consideration of the terms of Carroll’s plea agreement. In distinguishing Clifford and Selph v. Commonwealth,
Here, the question whether reasonable suspicion for the stop existed was subsumed within the probable cause assignment of error because the same evidence was involved and the only difference in the legal analysis was whether that evidence met the “lesser” legal standard of reasonable suspicion rather than the “greater” legal standard of probable cause.
Moore,
The dissent raises two other arguments that should be addressed before proceeding to the merits. Neither, we respectfully submit, can be considered under Rules 5A:12(c) and 5A:18. First, there is the argument that, because Carroll did not know he would be required to admit to the offense in sex offender treatment at the time he entered his Alford plea, his plea was not “intelligently and voluntarily made” as required by the United States Supreme Court’s decision in Boykin v. Alabama,
Moreover, Rule 5A:18 provides that: “No ruling of the trial court or the Virginia Workers’ Compensation Commission will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling....” Carroll did not argue at his probation violation
Did Entering an Alford Plea Give Carroll an Enforceable Prerogative to Maintain His Innocence During Sex Offender Treatment?
“[W]e have held consistently that ‘revocation of a suspended sentence lies in the discretion of the trial court and that discretion is quite broad.’ ” Peyton v. Commonwealth,
Carroll’s argument is that it was not the offense of conviction, but the fact that he was convicted of that offense via an Alford plea, that made his later violation of probation for refusing to admit to the offense unreasonable as a matter of law. At its core, Carroll’s argument is that an Alford plea, by its nature, contains an implicit promise that the defendant will never be required to admit his guilt. And that is the precise issue before us for resolution. Because Carroll’s argument depends heavily on the correctness of his interpretation of Alford, and also because this appears to be a question of first impression in Virginia, we must examine the Supreme Court’s Alford opinion in some detail.
The defendant in Alford was indicted for first-degree murder, a capital offense, and entered a plea of guilty to second-degree murder, which carried a maximum penalty of thirty years imprisonment. Alford,
After the summary presentation of the State’s case, Alford took the stand and testified that he had not committed the murder but that he was pleading guilty because he faced the threat of the death penalty if he did not do so. In response to the questions of his counsel, he acknowledged that his counsel had informed him of the difference between second- and first-degree murder and of his rights in case he chose to go to trial. The trial court then asked appellee if, in light of his denial of guilt, he still desired to plead guilty to second-degree murder and appellee answered, “Yes, sir. I plead*744 guilty on—from the circumstances that he [Alford’s attorney] told me.”
Id. at 28-29,
The Supreme Court began its analysis by announcing that Jackson did not create any new test for the validity of guilty pleas. Alford,
After summarizing the conflicting state and lower federal court cases on the question, the Court reviewed its own prior cases, Lynch v. Overholser,
These cases would be directly in point if Alford had simply insisted on his plea but refused to admit the crime. The fact that his plea was denominated a plea of guilty rather than a plea of nolo contendere is of no constitutional significance with respect to the issue now before us, for the Constitution is concerned with the practical consequences, not the formal categorizations, of state law. Thus, while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.
Alford,
Carroll argues that his probation violation for making claims of innocence during sex offender therapy was inconsistent with his Alford plea. At least two courts in other jurisdictions have agreed with him, holding that a defendant did not violate probation by refusing to admit guilt during sex offender treatment. People v. Walters,
We find the latter set of cases more persuasive, not because they form a longer list, but because their analysis is more faithful to the reasoning of the Supreme Court’s opinion in Alford. Recall that Alford did not announce any new standard for the validity of guilty pleas. Alford,
*747 Nor can we perceive any material difference between a plea that refuses to admit commission of the criminal act and a plea containing a protestation of innocence when, as in the instant case, a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt.
Alford,
Q: [Do] you understand that the legal consequences of an Alford plea are the same as a guilty plea or a finding of guilt?
(Emphasis added).
Walters and Birchler. on the other hand, do not review the reasoning of Alford, and they contain propositions with no basis in the text of that decision. See Birchler,
Of course there is an inconsistency between any defendant’s protestations of innocence and the probation con
A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless. In North Carolina v. Alford,400 U.S. 25 , 37 [91 S.Ct. 160 ,167,27 L.Ed.2d 162 ] (1970), the United States Supreme Court treated such guilty pleas as the functional equivalent of a plea of nolo contendere.
State v. Palmer, [
The rest of Carroll’s argument is an attack on the evidence that he actually raped his stepdaughter. Carroll emphasizes the lack of physical evidence that he committed the crime, the inconsistencies between the alleged victim’s statements and the physical evidence, and the alleged victim’s prior inconsistent statements. Finally, Carroll makes the quite plausible claim that a plea of guilty to assault and battery after five years of probation is an unusually favorable disposition for such a serious charge, and indeed a disposition that would probably be unacceptable to the Commonwealth if it had stronger evidence. But these points are relevant to the claim that the trial judge erred in finding an adequate factual basis to support Carroll’s Alford plea, and Carroll has not appealed this finding. They do nothing to advance the separate claim
II.
Did the Trial Court Abuse its Discretion in Denying Carroll’s Request for Individual Sex Offender Therapy?
Carroll also appeals the trial court’s refusal to order him into individual therapy in lieu of the sex offender program from which he had already been discharged for refusing to admit his guilt. Carroll formulates his second question presented thusly: “Whether the trial court erred in not considering a reasonable alternative treatment modality (sex offender treatment with an expert forensic psychologist) in lieu of probation revocation coupled with the condition of successfully completing the same program from which Appellant was terminated?” In general, a court does not need to announce that it has considered specific alternatives to its orders in determining the appropriate sanction for a probation violation.
The decision to revoke probation is generally predictive and subjective in nature, and the fairness guaranteed by due process does not require a reviewing court to second-guess the factfinder’s discretionary decision as to the appropriate sanction. Accordingly, our precedents have sought to preserve the flexible, informal nature of the revocation hearing, which does not require the full panoply of procedural safeguards associated with a criminal trial. We believe that a general requirement that the factfinder elaborate upon the reasons for a course not taken would unduly burden the*750 revocation proceeding without significantly advancing the interests of the probationer.
Black v. Romano,
Carroll’s argument on brief is closely related to the Alford plea argument we rejected in Part I of this opinion. He relies heavily on Gilfillen v. State,
Reasonable conditions on probation may be imposed on a defendant, but thought control is not one of them. Thus, in a circumstance such as this, where the defendant has not pled guilty but was instead convicted while denying guilt, trial courts may not insist on an admission of guilt as a condition of probation or use a continued denial of guilt as the basis for revocation.
Id. at 824. There is, however, an important difference between Virginia and Indiana on the law applicable to guilty pleas. As a matter of Indiana state law, it is reversible error for a trial judge to accept an Alford plea. See Ross v. State,
Affirmed.
Notes
. Incidentally, our acceptance of the dissent's state separation of powers argument would require that we hold this statute unconstitutional. Though we may need to review the constitutionality of the statute in some future case, we should not do so in the context of a case in which the issue was never briefed by the parties, and neither the defense nor the Commonwealth has had a chance to argue its merits.
. Carroll attempts to distinguish Birdsong because in that case, the defendant had actual knowledge that he would be required to complete sex offender treatment at the time of his Alford plea. Carroll accurately distinguishes this case from the view of Birdsong adopted in Justice Scott’s concurring opinion, which argued that the defendant's actual knowledge meant that there was no need for the court to address the more general question of the probation conditions allowed by an Alford plea. However, the majority's holding is broader: "There is nothing inherent in an Alford plea that gives the defendant any rights, or promises any limitations with respect to the punishment imposed after the conviction,” Birdsong,
. As the dissent correctly notes, the consequences of Alford pleas and pleas of nolo contendere are different from the consequences of ordinary guilty pleas in that unlike the person who makes an ordinary guilty plea, an Alford plea defendant is not estopped from denying that he committed the offense in a subsequent civil proceeding. See Parson v. Carroll,
Concurrence Opinion
concurring, in part, and dissenting, in part.
I concur in the holding and judgment of the majority that the trial court did not err in failing to consider “a reasonable alternative treatment modality (sex offender treatment with an expert forensic psychologist) in lieu of probation revocation coupled with the condition of successfully completing the same program from which [ajppellant was terminated.” The “only limitation placed upon the discretion of the trial court in its determination of what conditions are to be imposed is that a condition be ‘reasonable.’ ” Nuckoles v. Commonwealth,
However, I respectfully disagree with the majority decision that the trial court did not err in finding appellant in violation of probation based solely on his refusal to admit to rape during sex offender treatment. The majority decision makes a strong and compelling policy statement regarding the expectations of probation in the traditional case. However, this matter is not the traditional case. I believe that the majority result eviscerates a plea made pursuant to North Carolina v. Alford,
I. BACKGROUND
Appellant was indicted in 2007 for a crime that occurred in 1983.
At a September 6, 2007 hearing, the trial court conducted a colloquy with appellant. During the colloquy, appellant made an Alford plea. In accord with Boykin v. Alabama,
On September 20, 2007, the trial court entered an order noting that appellant “protested his innocence” by making an Alford plea and restating the conditions of his probation. In
On June 13, 2008, the trial court conducted a probation revocation hearing. At the hearing, appellant claimed he did not violate the conditions of his probation by failing to admit to the crime. Specifically, he contended the trial court could not find that he violated his probation because the trial court accepted his Alford plea under the plea agreement. In doing so, according to the appellant, the trial court permitted him to maintain his innocence. Furthermore, appellant claimed that requiring him to admit to the crime would be “a breach of the plea agreement, to the extent that specifically in the plea agreement ... [appellant] recite[d], [‘]I do not admit that I committed the crime to which I am pleading guilty.[’]” The trial court disagreed with appellant, and revoked his probation for his failure to admit to the crime and sentenced him on the charge.
II. ANALYSIS
As a preliminary matter, I disagree with the majority’s characterization that an Alford plea is indistinguishable from a guilty plea in all respects. An Alford plea is akin to a plea nolo contendere, that is, a plea that is not “a confession of guilt and has no effect beyond permitting the court to impose sentence in a particular case.” Commonwealth v. Jackson, 255 Va. 552, 555,
Originating from early medieval practice, the plea nolo contendere was a means used by a defendant wishing to avoid imprisonment and seeking “to make an end of the matter (finem facere) by offering to pay a sum of money to the king.” Id. at 36 n. 8,
Against this historical backdrop, the Alford plea developed as a mechanism whereby “ ‘a defendant maintains innocence while entering a plea of guilty because the defendant concludes that his interests require entry of a guilty plea and the record before the court contains strong evidence of actual guilt.’ ” Perry v. Commonwealth,
Based on this holding in Alford, the courts in this Commonwealth in the exercise of their discretion have permitted criminal defendants who wish to avoid the consequences of a trial to plead guilty by conceding that the evidence is sufficient to convict them, while maintaining that they did not participate in the acts constituting the crimes.
Id. at 565-66,
Further defining the nature of the Alford plea, the Supreme Court of Virginia stated in Parson that in making such a plea, a defendant “assume[s] a position of law, not a position of fact.” Id. at 566,
By stark contrast, a guilty plea is founded upon the defendant’s express admission to having committed the crime. It is clear, therefore, that the only conceivable similarity between the guilty plea and the Alford plea is in the nature of their result. Stated another way, an Alford defendant agrees to be treated as if he had made a guilty plea only for purposes of sentencing. Notwithstanding this similarity, the Alford defendant retains, unlike defendants who enter a traditional guilty plea, the enforceable prerogative to maintain his innocence.
My disagreement with the majority’s holding on this matter is underscored for a second reason particular to this case: the plea agreement in the instant case, which by its very nature is a contract entered into by the Commonwealth and appellant, and approved by the trial court, contained no probation condition that appellant sacrifice his contractual prerogatives under his Alford plea and admit to the underlying charge in sex offender treatment. “The Court of Appeals and other courts that have considered such agreements have uniformly held that ... a plea agreement[ ] implicate^] a defendant’s due process rights and [is] generally governed by' the law of contracts.” Hood v. Commonwealth,
Applying these principles to the facts of this case, it is clear that appellant entered into a valid and enforceable contract with the Commonwealth, whereby he maintained he did “not admit that [he] committed the crime” and that he “still claim[ed] innocence.” As a result of the plea, the Commonwealth received the benefit of the bargain by obtaining an Alford plea from appellant and the entry of an order of conviction, by satisfying a significantly lower burden of proof requiring only a “strong factual basis” for the plea, see Alford,
Here, the government, through the probation officer, added a new condition of probation requiring appellant to admit to the underlying offense during sex offender therapy. To the contrary, the plea agreement specifically stated that the appellant was not admitting that he committed the offense. The position of the government, endorsed by the majority, effectuates a change in the fundamental purpose in the agreement reached between the parties in this matter. To accomplish such an objective, there must have been a clear and definite intention on the part of all concerned to the agreement that such is the purpose of the new agreement. At no point did appellant agree to this additional probation condition and at no point did the parties execute a valid novation to the plea agreement.
The majority takes great pains to point to the various and arguably significant indicators of appellant’s culpability in the matter, yet criticizes the dissent for pointing out the signifi
Appellant’s ability to maintain his innocence was the sine qua non or essence of his agreement with the Commonwealth. By recommending that the trial court revoke his probation for a condition not only not included in the plea agreement, but instead, specifically disclaimed by both parties to the agreement, the Commonwealth gained the benefit of a prerogative it had specifically renounced in the agreement. Thus, I would hold that the trial court erred in revoking appellant’s probation because the plea agreement did not require that appellant admit to the charge during sex offender therapy.
In this case, appellant’s question presented does not explicitly state that the terms of the plea agreement permitting appellant to maintain his innocence was a ground upon which his probation could not be revoked for failure to admit to the crime. Nevertheless, in explicitly making his claim based on his Alford plea, appellant also implicitly included a claim embodied in the plea agreement terms. Indeed, “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello v. New York,
It is clear that in appellant’s case, he made an Alford plea in conjunction with the terms of the plea agreement in which he maintained his innocence. The plea agreement terms certainly induced him to make his Alford plea, and it cannot be contended that he would have made the Alford plea without
III. CONCLUSION
For these reasons, I disagree with the majority’s holding and judgment that the trial court did not err in finding appellant in violation of probation based solely on his refusal to admit to rape during sex offender treatment. Therefore, I dissent from that portion of the judgment and I would reverse the trial court’s decision revoking appellant’s probation.
. The initial charge for the 1983 crime was dismissed by a nolle prosequi. Later, while investigating a different allegation of rape that involved appellant's sister, the assigned detective re-opened the 1983 case. Consequently, appellant was indicted for a second time pertaining to the 1983 crime in 2007.
. Significantly, the Commonwealth did not agree to a "plea and recommendation” pursuant to Rule 3A:8, a rule substantially equivalent to Federal Rule of Criminal Procedure 11. In circumstances involving a "plea and recommendation,” the Commonwealth agrees to make a recommendation, or not to oppose the defendant's request for a particular sentence, with the understanding that the recommendation or request is not binding on the trial court. See Rule 3A:8(c)(l)(B), 3A:8(c)(2): see also United States v. Iaquinta,
. In dicta, we have alluded to the inherent contradiction apparent in requiring an Alford defendant to assume responsibility for a crime while he asserts his innocence. See Smith v. Commonwealth,
. See James v. Commonwealth,
. Indeed, appellant was not, and could not be, aware that his probation would be revoked for failure to admit to the crime when he entered into the plea agreement. Appellant quite reasonably expected that he and the Commonwealth would be bound by the terms of the plea agreement.
. "[A] novation is defined as a mutual agreement among all parties concerned for discharge of a valid existing obligation by the substitution of a new valid obligation on the part of the debtor or another.” Honeywell, Inc. v. Elliott,
. Furthermore, I have grave concerns about the circumstances surrounding the plea agreement in this case. The probation officer added a condition to appellant's probation that was in opposition to the plea agreement terms approved by the trial court. Essentially, the probation officer, who was an agent of the executive branch, acted in a judicial capacity by requiring that appellant admit to the crime, a probation condition inconsistent with the terms of the plea agreement. The result suggested by this dissent avoids what could be considered the more significant question as to whether the probation officer violated principles of separation of powers contained in the Constitution of Virginia. See Va. Const, art. I, § 5 and art. Ill, § 1.
Contrary to the majority’s assertion, my concern pertaining to the separation of powers issue in no way suggests that Code 19.2-303.3(B) is unconstitutional. See generally Code § 19.2-303.3(B) (permitting trial courts to direct criminal defendants to "abide by any additional requirements of supervision imposed or established by the local community-based probation services agency during the period of probation supervision”); Perkins v. Commonwealth,
. Rule 5A: 12(c) provides, in pertinent part, that ‘‘[o]nly questions presented in the petition for appeal will be noticed by the Court of Appeals.”