COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Mal veaux and Senior Judge Frank Argued at Newport News, Virginia

ROGER BRIAN CLARKE, II, S/K/A ROGER BRIAN CLARKE, JR. MEMORANDUM OPINION * BY v. Record No . 1574-16-1 JUDGE MAR Y BENNETT MALVEAUX DECEMBER 27, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK John R. Doyle, III, Judge Daniel P. McNamara for appellant. Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mar k R. Herring, Attorney General, on brief), for appellee.

Roger Brian Clarke, II (“appell ant”), appeals from an order of the Circuit Court of the City of Norfolk (the “trial c ourt”) revoking his probation. He argues that the trial court erred in finding that his probation officer had the authority, under the Code of Virginia, to impose sex offender special instructions of probation on him. 1 For the reasons that follow, we affirm the judgment of the trial court.

I. BACKGROUND “For reasons analogous to those gove rning appellate review of r ecords of criminal trials,

we will view the evidence receiv ed at the revocation hearing in the light most favorable to the Commonwealth, as the prevailing pa rty, including all reasonable and legitimate inferences that

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 Appellant assigned additional er rors to the trial court in his petition for appeal, but this Court did not grant the peti tion on those assignments of error.UNPUBLISHED- 2 - may be properly drawn from it. ” Henderson v. Commonwealth, 285 Va. 318, 329, 736 S.E.2d 901, 907 (2013). On March 4, 2005, the Circuit Cour t of the City of Suffolk conv icted appellant of taking

indecent liberties with a child while in a custodial relationsh ip, in violation of Code § 18.2-370.1, forcible sodomy, in viola tion of Code § 18.2-67.1, and two coun ts of rape, in violation of Code § 18.2-61. In 2014, after appellant m oved to a new address in Norfolk, he failed to reregister as

a violent sex offender. Follo wing a revocation hearing, the tr ial court convicted appellant of two counts of failure to reregister after being convicted of a sexu ally violent offense, second or subsequent offense, in viol ation of Code § 18.2-472.1. The tri al court’s April 2, 2015 sentencing order imposed a sentence of thr ee years and six months’ incarce ration, with three years of incarceration suspended. The orde r also stipulated that appell ant was to be placed on supervised probation for five years upon hi s release from custody. On December 22, 2015, appellant ca me under the supervision of his probation officer, Donna Baker. Baker met with appe llant and explained to him the terms of his probation. During the meeting, Baker provided appell ant with a docum ent entitled “Conditions of Probation Supervision,” which appellant read and signed. The document ma de clear that appellant would be on supervised probation “subjec t to the conditions listed” a nd that appellant was subject to possible probation revocation for failure to comply with the st ipulated conditions. Condition 6 provided that appellant woul d “follow the Probation . . . Offic er’s instructions and . . . be truthful, cooperative, and r eport as instructed.” Because of appellant’s sex offender status, he was made subjec t to additional requirements. Baker provided appellant with a document entitle d “Sex Offender Special

Instructions of Parole / Probati on / Post Release Supervision” (the “special instructions”), which appellant read and signed. The doc ument made clear that “[p]ur suant to Condition #6 of- 3 - [appellant’s] Conditions of Supervision,” appellant was “to com ply with the following . . . special instructions.” A list of the special instructions foll owed. On June 7, 2016, Baker filed a major probation violation report against appellant. In her report, Baker alleged that a ppellant violated Condition 6 of hi s conditions of probation supervision by violating seven of the special instructions. On September 12, 2016, the trial c ourt conducted a revocation h earing. When asked whether the special instructions were standard conditions that she gave to every sex offender, Baker replied that “[e]very s ex offender on supervision in the state of Virginia per Department of Corrections is on those special i nstructions.” The trial court then asked Baker “[w]hat triggers you to give the sex offender specia l instructions to someone un der supervision?” Baker replied that the special instructions were given to “[a]ny convicted se x offender. . . . If there is a sex

offense on his criminal history, he will be placed on sex offen der special instructions.” Baker

noted that her office was res ponsible for supervising a number of probationers who were “on our caseloads . . . simply [for] failure to register as a sex offen der, and they are also on the special instructions because they are a convicted sex offender.” Appellant argued that the sp ecial instructions “were not . . . for the probation office[r] to actually impose . . . . I understand that this is a blanket po licy by the [Department of Corrections], but that doesn’t ma ke it a justifia ble policy if these strictures . . . exceed . . . the authority of the probation offi ce[r] . . . .” Appellant acknow ledged that Code § 53.1-145 authorizes probation officers to impose some conditions on a su pervised probationer, but

maintained that that section a lso “limits the conditions” and t hat “none of those conditions [listed in the statute] are those that were placed upon [appellant].” The trial court found that appell ant had violated six of the sp ecial instruct ions and that “the Department of Probation and P arole would have the authorit y to impose [the special- 4 - instructions] on a probationer . . . . [T]hat the Department . . . has the authority to do those things I think is given in their inheren t authority.” The trial court revoked appellant’s probation and imposed two concurrent three-year terms of incarceration on his previously suspe nded sentences. This appeal followed.

II. ANALYSIS “To the extent that appellant’s assignment of error raises a qu estion of statutory interpretation, that question is reviewed de novo on appeal.” Jacobs v. Commonwealth, 61 Va. App. 529, 535, 738 S.E.2d 519, 522 (2013). “The evidence i s considered in the light most favorable to the Commonwealth, as the prevailing party below.” Id. On appeal, appellant argues thatthe trial court erred in findi ng that his probation officer had the authority, under the Code of Virginia, to impose the sp ecial instructions upon him. He notes the extensive powers of tri al courts to impose conditions of probation, 2 and contrasts those powers with the more limite d authority of probation officers to impose conditions. Appellant maintains that the authority of probation officers to impose co nditions upon probationers is derived from Code § 53.1-145, and thus, “if a probation officer is authorized to impose a condition, such authority will be f ound in that article.” Whil e acknowledging that probation officers “do possess some inhere nt autonomy to supervise probat ioners efficiently and effectively,” and “should be allowed some latitude in the way t hat they monitor reintegration of

2 See Code § 19.2-303 (authorizing t rial courts to “place . . . defendant[s] on probation under such conditions as the cour t shall determine”). However, our courts have recognized that such powers are not unlimited. F or example, the conditions of probation must be reasonable, and trial courts may not delegate t o probation officers responsibil ities that are the s ole province of the trial courts. See, e.g., Murry v. Commonwealth, 288 Va. 117, 1 22, 762 S.E.2d 573, 576 (2014) (“The only statutory limitation on the court’s exercise of its discretion is ‘one of reasonableness.’” (quoting A nderson v. Commonwealth, 256 Va. 58 0, 585, 507 S.E.2d 339, 341 (1998))); Wilson v. Commonwealth, 67 Va. App. 82, 89, 793 S.E.2 d 15, 18-19 (2016) (holding that the trial court improperl y delegated determination of the amount of defendant’s restitution to a probation officer, where C ode § 19.2-305.2 made clear that th e determination was the sole province of the trial court).- 5 - offenders into society,” appe llant argues that Code § 53.1-145 authorizes probation officers only to do two things. First, the statut e authorizes them to “[s]up ervise and assist a ll persons within [their] territory placed o n probation.” Code § 53.1-145(2). S econd, the statute authorizes probation officers to order and c onduct, in thei r discretion, d rug and alcohol screening tests of probationers whom they have reas on to believe are using drugs o r abusing alcohol. Code § 53.1-145(6). Based upon a review of the applicable statutory scheme, we disagree. “When interpreting statutes, cour ts ‘ascertain and give effect to the intention of the legislature.’” Jones v. Commonwealth, 65 Va. App. 274, 278, 77 7 S.E.2d 229, 230 (2015) (quoting Va. Cellular LLC v. V a. Dep’t of Taxation, 276 Va. 486 , 490, 666 S.E.2d 374, 376 (2008)). “That intent is usuall y self-evident from the words u sed in the statute. Therefore, courts must apply the plain langu age of a statute unless the te rms are ambiguous or applying the plain language would lead to a n absurdity.” Id. at 278, 777 S. E.2d at 230-31. Code § 53.1-145, entitled “Powers a nd duties of probation and p arole officers,” provides in pertinent part that in add ition to other powers and duties p rescribed by Article 2, Chapter 4, Title 53.1 of the Code, probation officers shall “[s]upervise a nd assist all persons within [their] territory placed on probation.” Code § 53.1-145(2). Further, they shall “furnish every such person with a written statement of the conditions of his probat ion and instruct him therein.” Id. Probation officers shall also “pe rform other duties as may be r equired of [them] by the Director [of the Department of Correcti ons] or by regulations prescribedby the Board of Corrections.” Code § 53.1-145(5). Further, Code § 53.1-10(3) provides that the director of the De partment of Corrections has the power and duty to “develop and implement such programs as may be necessary to carry out the provisions” of Title 53 of the Code, which governs pris ons and other methods of

correction. The director is also instructed to “[d]irect and s upervise the work of all probation and- 6 - parole officers,” Code § 53.1-140( 1), and to “[c]arry or cause to be carried into effect all orders of the [State] Board [of Corr ections] and all rules and regulat ions adopted by it pursuant to the provisions of this artic le[,]” Code § 53.1-140(2). Read together, these statutes gr ant the Department of Correctio ns the authority to develop and implement regulations gove rning its supervision of probatio ners, in order to accomplish the well-established goals of probation: “to ‘reform’ the offender ” and “restore[] to a useful place in society an offender who is a good social risk.” Dossola v. Com monwealth, 37 Va. App. 444, 448, 559 S.E.2d 385, 387 (2002) (first quoting Connelly v. Comm onwealth, 14 Va. App. 888, 890, 420 S.E.2d 244, 245 (1992); then quoting Slayton v. Common wealth, 185 Va. 357, 366, 38 S.E.2d 479, 483 (1946)). However, because “the Commonwealth [a lso] has the legitimate concern that a probationer is mo re likely to engage in criminal activities than an ordinary citizen,” appropriate “probation conditions and supervision are necessary to ensure both that probation ‘serves as a period of ge nuine rehabilit ation and tha t the community is not harmed by the probationer’s being at lar ge.’” Murry v. Commonwealth, 288 Va. 117, 127, 762 S.E.2d 573, 579 (2014) (quoting Griffin v. Wis., 483 U.S. 868, 875 (1987)). The concern for public safety “is heightened when, as here, a p robationer is a sex offender.” Id. The statutory scheme for probation insures that both the D epartment of Corrections and i ts probation officers, who are best positioned to determine what conditions and restrictions will e ffectively accomplish these goals, will have the flexibility they need to set appropriate conditio ns for the individual probationer. 3

3 Our Court has previously recogni zed that the General Assembly has provided probation officers, under Code § 53.1-145, with t he responsibility for se tting parameters for a probationer’s conduct. In Miller v. Co mmonwealth, 25 Va. App. 727, 492 S.E.2 d 482 (1997), we considered the scope of a probation office r’s authority and responsibility in the context of a probationer’s reliance on the officer’s guidance about what constituted lawfu l conduct for him. We noted that probation officers are “charge d by the Commonwealth with respon sibility for defining [a probationer’s] permissible c onduct . . . . The legislature gra nt[s] . . . probation officer[s] supervisory responsibility for [a probationer’s] conduct and tr eatment during the course of his probation, see Code § 53.1-145, incl uding the responsibility fo r arresting him for a violation of- 7 - In the instant case, appellant’ s probation officer imposed the special instructions on appellant as per Department of Corrections policy. She testifi ed that imposition of the special

instructions was not discretiona ry on her part and that “[e]ver y sex offender on supervision in the state of Virginia per Departme nt of Corrections is on those spe cial instructions.” She further testified that the spec ial instructions wer e given to “[a]ny co nvicted sex offender” and that if there is a sex offense in a proba tioner’s criminal history, the y “will be placed on sex offender special instructions.” In accordance with this policy, and her supervisory duties under Code § 53.1-145, Baker imposed the spe cial instructions on appellant and presented him with a written copy of the special instructions. Here, appellant’s probation officer imposed the special instruc tions of probation as part of her statutorily mandated r esponsibility to “perform . . . du ties . . . required of [her]” by Department of Corrections policy. See Code § 53.1-145. She al so complied with the statutory requirement that she furnish appe llant with a written statement of the conditions of probation imposed by the special instruc tions. In doing so, she acted wi thin her authority under the Code. Consequently, the trial court di d not err in findi ng that there was authority under the Code for the imposition of the special instructions.

III. CONCLUSION For the foregoing reasons, we a ffirm the judgment of the trial court.

Affirmed.

his probation.” Id. at 743- 44, 492 S.E.2d at 491, cited with a pproval in Pierce v. Commonwealth, 48 Va. App. 660, 667, 663 S.E.2d 755, 758 (2006).