Probation conviction can happen with a dismissed count when a criminal violation is still proven, says Fairfax criminal lawyer

A probation conviction (PC) can happen with a dismissed prosecution, if a new criminal law violation is still proven. As a Fairfax criminal lawyer, I was disappointed to see a Virginia Court of Appeals opinion (thankfully unpublished, so not binding on any court, but which probably will be persuasive to many judges) that gives trial judges wide latitude to receive and consider police reports to enable a probation violation (PV) finding. Goss v. Commonwealth of Virginia (Va. App., Feb. 4, 2025) (unpublished).

Beware when your Virginia trial judge makes arguments for your conviction that the prosecutor does not

Goss received a substantial suspended sentence for several counts of theft. He allegedly was noncompliant with drug treatment after testing positive for controlled substance(s). Goss. At his PV hearing, the prosecutor told the trial judge that the assistant commonwealth’s attorney had insufficient information to provide for a post-sentencing drug violation, based on having entered that case nolle prosequi (not prosecuting/ dismissed) after only a residue of cocaine was found on the alleged drug paraphernalia seized from a backpack allegedly belonging to Goss. Goss’s judge nevertheless probed about the existence of a police report. The prosecutor did not have one available, but Goss’s probation agent did. Over Goss’s Virginia criminal defense lawyer’s objection, his judge admitted the police report into evidence and then found sufficient evidence of a post-sentence criminal law violation, and imposed a probation conviction, even though a drug analysis report was not submitted to the judge.

Can I get a probation conviction even if I have not been convicted of the new alleged crime in court?

Goss confirms that you can get a probation conviction on a police report alone even if your new criminal charge has gotten dismissed in court. Goss underlines the relaxed rules of evidence that apply to PV hearings and okays the admission of Goss’s police report under such circumstances, determining that a trial court for a PV hearing may apply either of the following two tests to determine whether Fifth Amendment Constitutional Due Process is fulfilled by admitting a police report into evidence at a PV hearing:  “The first, the ‘reliability test,’ permits admission of testimonial hearsay in revocation proceedings if it possesses substantial guarantees of trustworthiness.’… Circumstances demonstrating that testimonial hearsay is reliable include: ‘1) Detailed police reports (as opposed to mere summaries of such
reports by probation officers, (2) affidavits or other hearsay given under oath, (3) statements by the probationer that directly or circumstantially corroborate the accusations, (4) corroboration of accusers’ hearsay by third parties or physical evidence, (5) statements that fall within a well-established exception to the hearsay rule, (6) evidence of substantial similarities between past offenses and the new accusations that bolsters the accuser’s credibility, and (7) a probationer’s failure to offer contradictory evidence.’ [T]he second test, the ‘balancing test,’ requires the court to weigh the interests of the defendant in cross-examining his accusers against the interest of the prosecution in denying confrontation… A trial ‘court may apply either test, as may be most appropriate in the circumstances.’… Moreover, a trial court’s silence ‘as to any ground upon which [it] may have relied in finding good cause’ allow[s] [this Court] to make an independent review of the record to ascertain whether there was sufficient credible evidence before [the trial court] to support a
finding of “good cause for not allowing confrontation.'” Goss (quotation marks amended for clarity in this article) .

Is my PV a technical or non-technical violation?

Do not stop defending yourself even if your trial judge determines a probation conviction, because you still need to advocate for the most favorable sentence. Goss’s trial judge found a general PV violation and did not impose active jail time on the matter. Make sure that your Virginia criminal lawyer understands and will argue the difference between technical PV violations that limit or avoid incarceration time and non-technical violations. Virginia Code § 19.2-306.1 Fairfax criminal lawyer Jon Katz has successfully defended hundreds of people charged with PV’s and does not let go in fully defending you for this and all other criminal prosecutions.

Fairfax criminal lawyer Jonathan Katz relentlessly pursues your best defense against Virginia felony, misdemeanor and DUI prosecutions. Usually Jon Katz can meet with you within a business day of your contacting us, for a free in-person initial confidential consultation about your court-pending prosecution. Contact us at 703-383-1100, info@BeatTheProsecution.com, or (text) 571-406-7268.