Larry Ray Martin, Jr. v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: November 6, 2001
• Docket: 1952002
• Status: Unpublished

Opinion

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

- 2 - 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

- 3 - 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).

- 4 - 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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