COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Clements Argued at Chesapeake, Virginia

JERMAINE STANLEY MOCK MEMORANDUM OPINION * BY v. Record No. 2259-04-1 J UDGE ROBERT J. HUMPHREYS JUNE 21, 2005 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Wilford Taylor, Jr., Judge Charles E. Haden for appellant. Richard B. Smith, Senior Assistant Attorney General (Judith Williams Jadgmann, Attorney General, on brief), for appellee.
Appellant Jermaine Stanley Mock (“Mock”) ap peals the trial court’s denial of a motion to continue his probation revocation proceedings, ar guing that, at time of the hearing, his counsel had not yet had the opportunity to review the Co mmonwealth’s sentencing guidelines report or to obtain evidence that Mock was eligible for a par ticular drug treatment program. For the reasons that follow, we hold that the trial court did not abuse its discretion in de nying Mock’s motion for a continuance and affirm the judgment below. The relevant facts are not in dispute. On September 19, 2000, the trial court convicted Mock of possession of cocaine, sentenced him to three years in prison, and suspended all but fourteen days of his sentence. During the next four years, Mock repeatedly tested positive for drug use, a violation of Condition 6 of his probation agreement. Thus, on August 10, 2004, the trial court issued a capias for Mock’s arrest.

* Pursuant to Code § 17.1-413, this opinion is not designated for publ ication. Moreover, as this opinion has no precedential value, we re cite only those facts necessary to our holding.- 2 - The trial court conducted the probation re vocation hearing on September 24, 2004. At the outset of the proceedings, Mock’s counsel requested a continuanc e, arguing that Mock “wanted to get in touch with the Serenity House to see if he coul d be admitted into one of their inpatient programs.” Defense counsel also contended that, because he had not received the Commonwealth’s sentencing guidelines report until the morning of the hearing, he had not had adequate time to review that re port with his client. In respons e, the Commonwealth asserted that Mock was ineligible for treatment at Serenity H ouse because he had a federal detainer on file. The Commonwealth also noted that the senten cing guidelines report would not be pertinent unless and until the court found Mock guilty of vi olating the terms of his probation. The trial court agreed with the Commonwealth and denied the motion for a continuance. After the court found Mock guilty of vi olating the terms of his probation, the Commonwealth asked the trial court to consider the sentencing guidelines report. Defense counsel then asked the court “to c ontinue the case so that we can ge t into the reasons for some of those scores on this because I’m just being given the report toda y.” When the trial court asked, “Why can’t we do that now,” defense counsel ad mitted that he had “already gone through [the report] with the Probation Offi cer” and that he “under[stood] how she’s come up with every single score that she’s got.” However, defense co unsel argued that “[w]ha t [he didn’t] have an opportunity to do is sit down with [his] client, go over these things to see if there’s anything that [Mock] challenges so that [counsel] can go behind and check the records.” The trial court informed defense counsel th at he could question the probation officer about the scores on the sentencing guidelines repor t. After giving defens e counsel a few minutes to review the report with his client, the court noted that I think what I have heard doesn’t give me reason to continue the case. I think what you have complained about are things that can- 3 - be dealt with today. We don’t have to continue it for a disposition hearing. And I’ll tell you had you said something that gave me cause for alarm that maybe we need to go and look at something else I would have continued it. But based on what you have said, the issues that you are complaining [about], I think we can resolve those today and we don’t have to delay it. That’s all I’m saying. Defense counsel then called the probation officer to testify and questioned the officer about a laboratory report indicating that Mock tested positive for cocaine and marijuana use on July 27, 2004. Defense counsel also called Mock to testify. Mock did not dispute hi s record as reflected in the sentencing guidelines report other than to claim that he ha d not used cocaine on or about July 27, 2004. The Commonwealth then asked the court to sentence Mock within the recommended range of guidelines. Defense counsel argued for a lesser revocation, arguing that, although Mock “received a total of 56 points,” part of the total “was a 10 point value of positive drug tests for cocaine . . . on July 27, 2004.” The trial court f ound that the July 27 drug report was reliable, noting that the defense—rather than the Commonw ealth—introduced that re port into evidence. Also, based on the evidence of Mock’s continuing drug use, the court found that “Serenity House is [not] strong enough for this individual,” noti ng that “[t]his has been going on since 2000 and the testimony was that we have exhausted all of the local resources treatment.” Because Mock “clearly continues to use drugs,” the court opined that Mock “needs more intense treatment [than] we can give him locally and in my view we have tried everything locally that we have to offer and that hasn’t worked so you need more . . . intensive treatment to deal with this drug habit . . . .” Thus, the court concluded that, under the circumstances of this case, “Serenity House is [not] appropriate.” Accordingly, the trial court revoked the remaining two years, eleven months, and fourteen days of Mock’s orig inal sentence, and it then re-suspended eleven- 4 - months and thirteen days of that sentence. Th e trial court ordered Mock to serve his two-year sentence “at a Therapeutic Community provide d by the Department of Corrections.” “The decision whether to grant a continuan ce is a matter within the sound discretion of the trial court.” Venable v. Venable , 2 Va. App. 178, 181, 342 S.E.2d 646, 648 (1986). Thus, the denial of a motion for continuance is reversib le on appeal only if: (1) the trial court abused its discretion; and (2) the movant was prejudiced by the court’s decision. Id. ; see also Butler v. Commonwealth , 264 Va. 614, 621, 570 S.E.2d 813, 817 (2002); Silcox v. Commonwealth , 32 Va. App. 509, 513, 528 S.E.2d 744, 746 (2000). Initially, we note that Mock fa iled to include the sentencing gu idelines report as a part of the record on appeal. Absent an opportunity to review the information in that report, we cannot conclude that Mock’s inability to review the report before th e revocation heari ng resulted in prejudice to him. Because the appellant has the burden of provi ding a record on appeal sufficient to permit this Court to review the error assi gned, we conclude that Mock is barred from challenging the trial court’s denial of the motion for a continuan ce on this particular ground. See Rose v. Jaques , 268 Va. 137, 156, 597 S.E.2d 64, 75 (2004); Jenkins v. Winchester Dep’t of Soc.
Servs. , 12 Va. App. 1178, 1185, 409 S.E.2d 16, 20 (1991). We also disagree with Mock’s argument that he was entitled to a continuance in order to obtain additional evidence that he was eligible fo r treatment at the Seren ity House program. To constitute reversible error, the denial of a moti on for a continuance must result in prejudice to the moving party. Here, the trial court concluded that, even if Mock were eligible for treatment at Serenity House, that program “is [not] strong eno ugh for this individual.” Because the trial court expressly found that requiring Mock to undergo treatment at Serenity House would not be appropriate under the circumstances of this case, Mock cannot demonstrate that he was prejudiced by his inability to present evidence that he was eligible for that program. See- 5 - generally Cardwell v. Commonwealth , 248 Va. 501, 509, 450 S.E.2d 146, 151 (1994); Carter v. Commonwealth , 39 Va. App. 735, 745, 576 S.E.2d 773, 778 (2003). Mock, however, also argues that the trial c ourt’s denial of his mo tion for a continuance “effectively deprived [him] of his right to ca ll forth evidence in his favor under the Sixth Amendment and Article I, § 8 of the Virginia Constitution.” Unquestionably, “an accused has a constitutional right ‘to call for evidence in his fa vor,’ which includes the ri ght to prepare for trial by procuring both testimonial and documenta ry evidence.” Gilchrist v. Commonwealth , 227 Va. 540, 545, 317 S.E.2d 784, 787 (1984) (citation omitted). A nd, “[i]n order to prepare for trial, an accused and his counsel must have sufficient time to investigate the case and to evaluate the evidence that is procured.” Id. at 546, 317 S.E.2d at 787. Thus , “‘although granting or denying a continuance is within the discretion of the tria l court, it must exercise its discretion with due regard to the provisions of the Bill of Rights, wh ich secure to one accused of a crime a fair and impartial trial.’” Caprio v. Commonwealth , 254 Va. 507, 512, 493 S.E.2d 371, 374 (1997) (quoting Gilchrist , 227 Va. at 546, 317 S.E.2d at 787 (internal quotations omitted)). To the extent that Mock is arguing that denial of the continuance viol ated his right to call forth evidence in his favor, we note that this constitutional argument was never raised before the trial court. Accordingly, we are barre d from considering it on appeal. See Rule 5A:18; see also West Alex. Prop. v. First Va. Mort. , 221 Va. 134, 138, 267 S.E.2d 149, 151 (1980); Roberts v. Roberts , 41 Va. App. 513, 525, 586 S.E.2d 290, 296 (2003). For these reasons, we hold that the trial cour t did not abuse its disc retion when it denied Mock’s motion for a continuance. And, because Mock has not shown that the denial of the continuance resulted in actual prejudice to him, we affirm th e judgment of the trial court. Affirmed.