Larry Ray Martin, Jr. v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Annunziata
Argued at Richmond, Virginia
LARRY RAY MARTIN, JR.
MEMORANDUM OPINION * BY
v. Record No. 1952-00-2 JUDGE LARRY G. ELDER
NOVEMBER 6, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
William H. Ledbetter, Jr., Judge
S. Jane Chittom, Appellate Defender (Public
Defender Commission, on brief), for
appellant.
Richard B. Smith, Senior Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Larry Ray Martin, Jr. (appellant) appeals from the
sentences imposed after he pleaded guilty to two counts of
feloniously taking indecent liberties with two juveniles. On
appeal, he contends the sentencing proceeding was fundamentally
unfair (1) because the trial court considered information
contained in presentence reports for prior offenses even though
appellant was not timely notified about the Commonwealth's
intent to introduce such information and even though it
contained hearsay and (2) because appellant's parole officer was
allowed to testify about uncharged conduct. We hold appellant
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
failed to preserve for appeal his objections regarding the
presentence reports and that the court's consideration of an
unadjudicated crime allegedly committed by appellant was not
error.
Assuming without deciding that appellant was entitled to
reasonable notice of the Commonwealth's intent to use the
presentence reports prepared for prior convictions, appellant
waived his right to consideration of this objection on appeal by
not asking the trial court for a continuance. Had appellant
sought and received a continuance, he would have had an
opportunity to obtain complete copies of the prior presentence
reports so that he could have been better prepared to
cross-examine the Commonwealth's witness or offer evidence of
his own to challenge the accuracy of the reports. Instead, by
"declin[ing] to move for a remedy that would have permitted him
to accommodate his [strategy] to the [information contained in
the presentence reports,] [h]e sought only suppression of [that
information]." Lane v. Commonwealth, 20 Va. App. 592, 595, 459
S.E.2d 525, 527 (1995). "[B]y failing to . . . ask for the
postponement or continuance, [appellant] waived the point."
Bennett v. Garrett, 132 Va. 397, 402, 112 S.E. 772, 773 (1922);
cf. Turnbull v. Commonwealth, 216 Va. 328, 335, 218 S.E.2d 541,
547 (1975).
Appellant also waived his right to our consideration of his
claim that the trial court erroneously admitted hearsay
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information in the prior presentence reports. See Rule 5A:18.
Although appellant successfully objected to the Commonwealth's
efforts to offer into evidence a psychological evaluation
prepared in conjunction with one of appellant's prior
convictions, appellant did not object on hearsay grounds to the
admission of testimony from the prior presentence reports
themselves. He argued only that allowing additional testimony
about the offenses as described in the prior presentence reports
would "inflame the Court as far as his past record" and would be
unfair given that he had been provided only excerpts from those
reports and had received them only two hours before the
sentencing.
Furthermore, we see no reason to apply the good cause or
ends of justice exceptions to reach the merits of this
assignment of error. "A sentencing judge may consider hearsay
contained in a probation report," Thomas v. Commonwealth, 18 Va.
App. 656, 659, 446 S.E.2d 469, 471 (1994) (en banc), as long as
that testimony bears some indicia of reliability, Alger v.
Commonwealth, 19 Va. App. 252, 258, 450 S.E.2d 765, 768 (1994).
Further, hearsay testimony that is admitted without objection in
a sentencing proceeding may "'properly be considered by the
trial court and given its natural probative effect.'" Miller v.
Commonwealth, 22 Va. App. 497, 500-01, 471 S.E.2d 780, 782
(1996) (quoting Baughan v. Commonwealth, 206 Va. 28, 31, 141
S.E.2d 750, 753 (1965)). Because all prior presentence reports
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to which appellant now objects were prepared in Virginia, Code
§ 19.2-299 provided appellant with an opportunity to challenge
their accuracy in the prior proceeding for which each report was
prepared. Had appellant requested a continuance in the instant
proceeding, he would have had an opportunity to substantiate for
the trial court any inaccuracies he had claimed in those prior
presentence reports. Because he did not request a continuance,
we presume those reports were accurate. See State v. Cannon,
922 P.2d 1293, 1302-03 (Wash. 1996) (en banc).
Finally, the admission of the parole officer's testimony
about appellant's uncharged conduct involving a seven-year-old
boy was not error. Code § 19.2-295.1 limits the evidence
admissible before the jury in the sentencing phase of a
bifurcated trial to offenses for which an accused has been
convicted and sentenced. See Webb v. Commonwealth, 31 Va. App.
466, 469-70, 524 S.E.2d 164, 166 (2000). However, in any
portion of a sentencing proceeding occurring before a judge, the
judge may, before imposing sentence, consider "'the history of
the accused . . . and all other relevant facts,'" which include
both "dismissed juvenile charges" and "evidence of unadjudicated
criminal activity." Thomas, 18 Va. App. at 659, 446 S.E.2d at
471 (quoting Code § 19.2-299(A)); see also Saunders v.
Commonwealth, 242 Va. 107, 115 & n.2, 406 S.E.2d 39, 44 & n.2
(1991).
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Here, the Commonwealth offered evidence of appellant's
conduct with the seven-year-old boy because it provided yet
another example of appellant's violation of the condition of his
May 10, 1999 parole which prohibited him from having contact
with minor children. The evidence as a whole, both appellant's
prior convictions involving minors and various other
unadjudicated acts, including the challenged one involving the
seven-year-old boy which occurred within four months following
appellant's parole for previous sexual offenses involving
minors, was appropriately considered by the trial court in
concluding that these were "serious matters" and that the court,
through its sentence, had to seek to "protect the children" from
sex offenders like appellant.
For these reasons, we affirm appellant's sentences.
Affirmed.
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