Steven Lamont Joel Scott v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Felton, Judges Elder and McClanahan
Argued at Charlottesville, Virginia
STEVEN LAMONT JOEL SCOTT
OPINION BY
v. 	Record No. 1557-07-2 	JUDGE ELIZABETH A. McCLANAHAN
MAY 12, 2009
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
James E. Kulp, Judge Designate
Francis McQ. Lawrence (St. John, Bowling & Lawrence, LLP, on
brief), for appellant.
Josephine F. Whalen, Assistant Attorney General II (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Steven Lamont Joel Scott appeals from the Virginia trial court’s judgment finding him in
violation of the terms and conditions of his probation. He argues his probation violation was
previously and finally adjudicated in Ohio and the trial court erred in failing to give full faith and
credit to the Ohio judgment. Because the Ohio court did not have jurisdiction to adjudicate the
merits of whether Scott violated the terms and conditions of his Virginia probation and impose a
sentence for that violation, we affirm the trial court’s judgment.
I. BACKGROUND
Scott was convicted in a Virginia trial court of three counts of credit card theft, possession of
burglarious tools, possession of cocaine, and petit larceny, third or subsequent offense. He was
sentenced to a total of fifty-five years of imprisonment with fifty years suspended, conditioned on
good behavior and one year supervised probation. Subsequently, Scott applied for and was granted
supervision as a probationer by the State of Ohio pursuant to the Interstate Compact for the

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Supervision of Probation/Parolees.1 After his transfer to Ohio, Scott was convicted in the Court of
Common Pleas for the County of Cuyahoga, Ohio, of possession of criminal tools, three counts of
receiving stolen property, six counts of theft, and three counts of forgery, for which he was
sentenced to an active term of five and one-half years.2 The Ohio trial court also found him in
violation of his Virginia probation and sentenced him to six months, to be served concurrently with
his other sentence. Scott appealed his Ohio convictions to the Court of Appeals of Ohio. Although
he included an assignment of error related to the Ohio trial court’s finding that he was a “probation
violator,” he did not argue that assignment and the Ohio appellate court declined to address it. The
Ohio appellate court did find error in the Ohio trial court’s sentencing procedure and reduced
Scott’s sentence, which he served.
Subsequent to Scott’s convictions in Ohio, his Virginia probation officer informed the
Virginia trial court of his Ohio convictions. A detainer was issued for Scott, and he was extradited
to Virginia for a probation revocation proceeding. He moved to dismiss the proceeding arguing the
matter had been finally adjudicated by the Ohio trial court. The trial court denied Scott’s motion to
dismiss finding Ohio lacked jurisdiction to adjudicate Scott’s violation of his Virginia probation.
The trial court revoked Scott’s probation and re-suspended all but two years of his sentence, giving
him credit for the time served while awaiting extradition from Ohio to Virginia. Scott has now
served his probation revocation sentence.
1 The Interstate Compact for the Supervision of Probation/Parolees has been superseded
by the Interstate Compact for the Supervision of Adult Offenders. Both Virginia and Ohio are
member states. See Virginia Code § 53.1-176.1; Ohio Code § 5149.21.
2 Eleven of the counts were felonies.

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II. ANALYSIS
Scott contends he had “already been found guilty of, and sentenced for, his probation
violation in the state of Ohio and thus the prosecution [in Virginia] was barred both under Virginia
Code Section 53.1-172 and Article IV, Section 1 of the United States Constitution.”
A. Full Faith and Credit Clause
Article IV of the Constitution states, “Full Faith and Credit shall be given in each State to
the public Acts, Records, and judicial Proceedings of every other State.” U.S. Const. art. IV, § 1;
see also Virginia Code § 8.01-389(B) (requiring every court in the Commonwealth to give the
“records of courts not of this Commonwealth the full faith and credit given to them in the courts of
the jurisdiction from whence they come”). The Full Faith and Credit Clause, therefore, requires that
“[a] judgment entered in one State must be respected in another provided that the first State had
jurisdiction over the parties and the subject matter.” Nevada v. Hall, 440 U.S. 410, 421 (1979).
“Thus, a litigant is barred from relitigating in Virginia issues that were properly before and decided
by a sister state’s court, even when the issues concern jurisdictional matters.” Bloodworth v. Ellis,
221 Va. 18, 21, 267 S.E.2d 96, 98 (1980).
“As a general rule, a court, when asked to give effect to the judgment of a court in another
state, may inquire into that court’s jurisdiction without offending the Full Faith and Credit Clause.”
Id. Only if “the second court’s inquiry ‘discloses that those [jurisdictional] questions have been
fully and fairly litigated and finally decided in the court which rendered the original judgment,’” is
the second court “precluded from re-examining the jurisdiction of the court rendering the original
judgment.” Id. (quoting Durfee v. Duke, 375 U.S. 106, 111 (1963)).
The record establishes the question of the Ohio trial court’s jurisdiction to adjudicate Scott’s
Virginia probation violation was not “fully and fairly litigated” in Ohio. The transcript of the
proceedings before the Ohio trial court confirms that court did not address the jurisdiction question.

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On appeal in Ohio, Scott did not assign error to the court’s exercise of jurisdiction over his Virginia
probation. Although he assigned error to the Ohio trial court’s finding that Scott violated his
Virginia probation, because he failed to brief or argue that error, the Ohio appellate court declined to
address the probation violation on procedural default grounds. The jurisdiction issue was not fully
and fairly litigated and we, therefore, examine the jurisdiction of the Ohio trial court to adjudicate
Scott’s Virginia probation violation.
B. The Interstate Compact for Supervision of Adult Offenders
Scott contends the Ohio trial court had jurisdiction to adjudicate his Virginia probation
violation and revoke his Virginia probation by virtue of Virginia’s enactment of the Interstate
Compact for Supervision of Adult Offenders (“the Compact”).
The Compact is a formal agreement between the compacting states that seeks to promote
public safety by controlling interstate movement of adult offenders who are subject to supervision
imposed as the result of a criminal offense. See Interstate Compact for Adult Offender Supervision,
Article I; Virginia Code § 53.1-176.2, Article I; Ohio Code § 5149.21, Article I. The Interstate
Commission for Supervision of Adult Offenders (“the Commission” or “ICAOS”) was established
by the Compact and has promulgated rules governing the transfer of supervision from a sending
state to a receiving state3 as well as the return to or retaking4 by a sending state. See 2008 ICAOS
Rules. The ICAOS Rules are binding in the compacting states and thus have the force and effect of
3 “Sending state” is defined as “a state requesting the transfer of an offender, or which
transfers supervision of an offender, under the terms of the Compact and its rules.” “Receiving
state” is defined as “a state to which an offender requests transfer of supervision or is
transferred.” ICAOS Rule 1.101.
4 “‘Retaking’ means the act of a sending state in physically removing an offender, or
causing to have an offender removed, from a resending state.” ICAOS Rule 1.101.

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law in Virginia and Ohio. Virginia Code § 53.1-176.2, Articles V and VIII; Ohio Code § 5149.21,
Articles V and VIII.5
If an offender is transferred pursuant to the Compact, the receiving state is required to
supervise the offender “in a manner determined by the receiving state and consistent with the
supervision of other similar offenders sentenced in the receiving state.” ICAOS Rule 4.101. The
duration of supervision is for the length of time determined by the sending state, ICAOS Rule 4.102,
and upon request, the offender may return to the sending state in accordance with the sending state’s
instructions, ICAOS Rule 4.111. In the event of a significant violation of the conditions of
supervision, the receiving state must notify the sending state of the violation, ICAOS Rule 4.109(a),
and the sending state must then respond to the receiving state by informing it of the action the
sending state intends to take. ICAOS Rule 4.109(c)(2).
If the offender is convicted of a new felony offense in the receiving state, the sending state
must retake or order the return of the offender upon request by the receiving state and completion of
incarceration or placement under supervision for that felony offense. ICAOS Rule 5.102. The
sending state also must retake or order the return of the offender if the offender commits three or
more significant violations of supervision arising from separate incidents and establishing a pattern
of non-compliance. ICAOS Rule 5.103.6
Although “[a]n offender subject to retaking for violation of conditions of supervision that
may result in a revocation shall be afforded the opportunity for a probable cause hearing” in the
5 To assist state officials in implementing the Compact and its rules, the Commission has
published ICAOS advisory opinions and the ICAOS Bench Book for Judges and Court
Personnel.
6 The sending state may retake or order the return of an offender, at its sole discretion,
unless the offender has been charged with an offense in the receiving state, in which case the
offender cannot be retaken without the consent of the receiving state until the charges have been
dismissed, the sentence satisfied, or the offender has been released to supervision. ICAOS Rule
5.101.

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receiving state, ICAOS Rule 5.108(a), if an offender is convicted of a new felony offense in the
receiving state, “an offender may be retaken by a sending state without the need for further
proceedings,” ICAOS Rule 5.108(c); see also ICAOS Bench Book, § 4.4.2.3. After probable cause
is determined, the receiving state shall hold the offender in custody and the sending state must
“notify the receiving state of the decision to retake or other action to be taken.” ICAOS Rule
5.108(f).
The Commission has noted the Compact “does not impact the judicial sentencing of an
offender, only how the offender is supervised over state lines.” ICAOS Bench Book, § 2.12.2.
The transfer of an offender’s supervision under the Compact “does not deprive the sending state of
jurisdiction over the offender, unless it is clear from the record that the sending state intended to
relinquish jurisdiction.” ICAOS Bench Book, § 3.3.5. Although the receiving state must find a
probation violation is likely to result in revocation for purposes of determining whether the offender
is entitled to a probable cause hearing, “only the state granting conditional release has jurisdiction to
make a final determination on revocation.” ICAOS Bench Book, § 4.4.2.3. Thus, while the
receiving state may initiate criminal proceedings against offenders who commit crimes while in that
state, ICAOS Rule 5.101, the Compact “does not give a receiving state the authority to revoke the
probation or parole imposed by authorities in a sending state.” ICAOS Bench Book, § 3.3.5; see
also Peppers v. State, 696 So.2d 444 (Fla. Dist. Ct. App. 4th Dist. 1997).
Accordingly, under the Compact, Ohio was required to supervise Scott and notify Virginia
of any significant violations of the conditions of Scott’s supervision. ICAOS Rules 4.101 and
4.109(a). Because Scott was convicted of new felony offenses in Ohio, Virginia was required to
retake or order the return of Scott upon request by Ohio and completion of the incarceration for his
Ohio felony offenses. ICAOS Rule 5.102. Although an offender subject to retaking for violations
of supervision is generally entitled to a preliminary hearing to determine whether there is probable

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cause the offender violated the terms of supervision, because Scott was convicted of new felony
offenses in Ohio, he was not entitled to a probable cause hearing in Ohio. ICAOS Rule 5.108(c).
And while Ohio was entitled to initiate the criminal proceedings against Scott for the crimes he
committed in that state and Scott was required to complete his incarceration for those offenses, Ohio
did not have the authority under the Compact to revoke the probation imposed on him by Virginia.
ICAOS Bench Book, § 3.3.5; see also Peppers, 696 So.2d 444.
C. Virginia Code
The Virginia statutory provisions enacted pursuant to the Compact also did not grant Ohio
authority to revoke Scott’s Virginia probation.
Similar to the ICAOS Rules, Virginia expressly authorizes a preliminary hearing to
determine probable cause for probation violations by offenders whose supervision is transferred
under the Compact. Virginia Code § 53.1-168 provides that when an out-of-state offender is being
supervised in Virginia and is charged with violation of the terms or conditions of probation, “a
preliminary hearing at or near the site of the alleged violation may be held in accordance with this
article. The purpose of such hearing shall be to determine whether there is probable cause to believe
that the parolee or probationer has committed a violation of a condition of . . . probation.”7
Likewise, when an offender being supervised in another state pursuant to the Compact commits a
probation violation, that state “is authorized to hold a hearing on the alleged violation, which
hearing shall be substantially similar to the hearing required by this article.” Virginia Code
§ 53.1-172. Upon receipt of the record of a preliminary hearing, “such record shall be conclusive
and shall not be reviewable within or by this Commonwealth.” Id. Although Scott argues the Ohio
trial court had jurisdiction to adjudicate his Virginia probation violation under Virginia Code
7 Virginia Code §§ 53.1-169 through 53.1-171 set forth who may hold the probable cause
hearing, provide for certain rights of the offender at the hearing, and require a record of the
hearing.

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§ 53.1-172 and its decision was “conclusive,” that section clearly refers to the probable cause
hearing described in Virginia Code § 53.1-168 and is entirely consistent with the Commission rules
affording offenders a probable cause hearing for probation violations that may result in revocation,
ICAOS Rule 5.108.8 But Virginia Code § 53.1-172 does not transfer to another state the
jurisdiction to adjudicate the merits of a Virginia probation violation and revoke the Virginia
probation.9
D. Conclusion
In sum, neither the Compact, Virginia Code § 53.1-172, nor Ohio Code § 2929.141 granted
the Ohio trial court jurisdiction to adjudicate the merits of Scott’s violation of his Virginia probation
and revoke his Virginia probation. Under the procedure provided for by Commission rules and
Virginia Code § 53.1-172, the Ohio court was only authorized to determine whether probable cause
8 In fact, Virginia Code § 53.1-174, authorizing a “preliminary hearing[] to determine
probable cause” for probation violations for offenders present in other states not pursuant to the
Compact, states that “[s]uch preliminary hearing shall be substantially similar to the hearing
provided for in §§ 53.1-168 through 53.1-172,” thus further indicating the hearing referred to in
Virginia Code § 53.1-172 is the same hearing described in Virginia Code § 53.1-168.
9 Scott also misplaces his reliance on Ohio Code § 2929.141. According to that statute
(under the language in effect at the time of Scott’s convictions in Ohio):
A person on release who by committing a felony violates any
condition of parole, any post-release control sanction, or any
conditions described in division (A) of section 2967.131 [2967.13.1]
of the Revised Code that are imposed upon the person may be
prosecuted for the new felony. Upon the person’s conviction of or
plea of guilty to the new felony, the court shall impose sentence for
the new felony, the court may terminate the term of post-release
control if the person is a releasee and the court may do either or both
of the following for a person who is either a releasee or parolee
regardless of whether the sentencing court or another court of this
state imposed the original prison term for which the person is on
parole or is serving a term of post-release control.
Ohio Code § 2929.141(B) (emphasis added) (language effective through April 6, 2009). This
section applies to sentences imposed by Ohio courts not sentences imposed by courts of other states.

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existed to support a violation of the Virginia probation to allow that Scott be retaken by Virginia.10
As the Commission has noted, the purpose of the Compact is to control interstate movement of
offenders, without impacting the judicial sentencing of the offender, ICAOS Bench Book, § 2.12.2.
Because the Ohio trial court did not have jurisdiction to adjudicate the merits of Scott’s Virginia
probation violation and revoke Scott’s Virginia probation, and, in fact, did not consider the
jurisdictional issue, the Virginia trial court was not required to give full faith and credit to the Ohio
trial court’s judgment and was not precluded from adjudicating Scott’s probation violation.
Affirmed.
10 Since Scott was convicted of a new felony in Ohio, a probable cause hearing would not
have been required under the Commission rules upon proof of that conviction. ICAOS Rule
5.108(c).