COURT OF APPEALS OF VIRGINIA

Present: Judges McCl anahan, Petty and Powell Argued at Richmond, Virginia

JUDSON JEFFREY HARRIS MEMORANDUM OPINION * BY v. Record No. 0208-08-2 JUDGE CLEO E. POWELL MAY 12, 2009 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG Joseph E. Spru ill, Jr., Judge Rebecca K. Glenberg (Joseph T. Brown; American Civil Liberties Union of Virginia Foundation, Inc., on brief), for appellant. Susan M. Harris, Assistant Attorn ey General (Rober t F. McDonnell, Attorney General, on brief), for appellee.

Judson Jeffrey Harris (a ppellant) was convicted of possession of heroin, in violation of Code § 18.2-250, after he faile d to meet the conditions imposed by the circu it court when it initially deferred its finding of guilt. On appeal, appellant argues that the ci rcuit court erred in (1) ruling that all due process requiremen ts were fulfilled when appellant’s participation in the Rappahannock Area Regional Drug Treatment Court (drug court pr ogram) was terminated a nd he was sentenced to a term in jail, (2) refusing to co nsider evidence of the reasons fo r which appellant was discharged from the drug court program, and (3) refusing to co nsider alternatives to incarceration. Finding no error, we affirm the circ uit court’s judgment and a ppellant’s conviction.

I. BACKGROUND Appellant was charged with possession of heroin, in violation of Code § 18.2-250, for

events that occurred on March 5, 2005. He was arraigned on February 6, 2006, and he entered

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - into a plea agreement. The terms of the plea agreement deferred a finding of guilt and suspended imposition of a sentence while appe llant was enrolled in the drug c ourt program. If appellant successfully completed the program, the charge woul d be dismissed. If he failed to complete the drug court program, he would be found guilty and sentenced. The plea agreement also contained

the Commonwealth’s recommended sentence: th ree years with two years and six months suspended, supervised probation, five years of good behavior, and payment of court costs. During appellant’s arraignm ent, the circuit court conducted a colloquy and determined that appellant understood the nature of the crime for which he was charged, pled guilty voluntarily, comprehended the consequences of hi s plea, and waived certa in rights knowingly.

The court found that the evidence was sufficient to support the charge against appellant and accepted his guilty plea. Appellant then enrolled in the drug court program. On August 27, 2007, the drug court terminated appellant from the program and referred

his case back to the circuit court for sentenci ng. On October 31, 2007, Judge John W. Scott, Jr. recused himself from appellant’s sentencing beca use he had voted to expel appellant from the drug court program, but agreed to hear appe llant’s bond motion that day with appellant’s agreement. The circuit court de nied appellant’s request for bond. At his sentencing hearing on January 14, 2008, appellant argued that he should not be incarcerated for violating his plea agreement b ecause such incarceration would violate his due process rights. He asserted that his “liberty interest in contin uing in a drug court program cannot be terminated without due process of law.” A ppellant contended that a person facing termination from a drug court program was entitled to the same procedural protections as a person facing revocation of probation. He argued that he was entitled to notice, the opportunity to challenge the case against him, and the opportunity to be he ard. Finally, appellant asserted that the First- 3 - Amendment protected his comments on a MySpace page and, therefore, he cannot be terminated from the program or incarcerated for these comments. The circuit court held that appellant wa s found to have failed to comply with the behavioral requirements of the drug court prog ram and his participation in the program was properly terminated. The court sentenced him in accordance with the plea agreement: three years with two years and six months suspe nded, supervised probation, five years of good behavior, and payment of court costs.

II. ANALYSIS On appeal, appellant assert s that his summary terminati on from the drug court program

violated the Due Process Clause of the Fourteenth Amendment. 1 The Commonwealth responds that Rule 5A:18 bars our consideration of appe llant’s arguments because they were not properly raised below. We agree with the Commonwealth. No ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice.

Rule 5A:18. This rule exists so that the circui t court judge is alerted to possible error and is afforded the opportunity to “consider the issue intelligently an d take any corrective actions necessary to avoid unnecessary appe als, reversals and mistrials.” Martin v. Commonwealth , 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992) (citing Campbell v. Commonwealth , 12 Va. App. 476, 480, 405 S.E.2d 1, 2 (1991) (en banc)). “Mak ing one specific argument on an issue does

1 This Court recently considered these quest ions on a very similar set of facts in Harris v. Commonwealth , Record No. 2927-07-2 (Va. Ct. App. Mar. 10, 2009). In that case, appellant alleged that his termination from drug court violated his due proce ss rights. Appellant made this argument to the trial court during his motion for bond and during his sentencing hearing. He never sought reversal of his termination from the drug court program because of an alleged violation of his due process rights. This Court held that Rule 5A:18 ba rred our consideration of the issue because the specific objec tion he made on appeal was not ti mely made in the trial court.- 4 - not preserve a separate legal point on the same issue.” Edwards v. Commonwealth , 41 Va. App. 752, 760-61, 589 S.E.2d 444, 448 (2003). Though Rule 5A:18 permits us to consider unpreserved arguments when good cause is shown or to meet the ends of justice, appellant does not argue that we should invoke one of these ex ceptions, and we will not consider such an argument sua sponte

. Id. at 761, 589 S.E.2d at 448. Here, appellant argued during hi s sentencing hearing that he should not be sent to jail because to do so violated his due process rights. In support of this argument, appellant asserted that he was entitled to due process prior to his termination from th e drug court program. However, appellant did not ask the circuit cour t to reverse his termination on this ground. Therefore, this due process argument was not pres ented to the circuit court and our consideration of it is barred by Rule 5A:18. Appellant also contends that th e circuit court erred in refusing to consider evidence of the reasons he was terminated from the drug court program. The record clearly shows that Harris never offered, nor did he seek to offer, any evid ence of the reasons he was terminated from the drug court program. While Harris advised the co urt that people were present to address the issue, he never sought to call any witnesses or to present any evid ence. Therefore, we cannot say that the circuit court erred in refusing ev idence when no evidence was offered nor was any refused, and, as such, Rule 5A:18 bars our consideration of this argument. Finally, appellant argues that the circuit court er red in refusing to consider alternatives to

incarceration. 2 The Commonwealth may enter into a plea agreement with a defendant in which the parties “[a]gree that a specifi c sentence is the appropriate di sposition of the case.” Rule 3A:8(c)(1)(C). “If the court accepts the plea agreement, the court shall inform the defendant that

2 Appellant also made this argument in Harris , Record No. 2927-07-2 ,where it was rejected for the same reasons as stated here.- 5 - it will embody in its judgment a nd sentence the disposition provided for in the agreement.” Rule 3A:8(c)(3). Here, the terms of the plea agreement accepted by the circuit court explic itly stated that if appellant failed to successfully complete the dr ug court program, he would be returned to the circuit court for determination of his guilt a nd imposition of a sentence. The circuit court accepted the order terminating appellant’s pa rticipation in the dr ug court program, found appellant guilty, and imposed the sentence appellan t accepted in the plea agreement. Thus, we cannot say that the circuit cour t erred in not considering al ternatives to incarceration.

III. CONCLUSION For the foregoing reasons, we reject appell ant’s arguments and affirm his conviction.

Affirmed.