Galen Michael Baughman v. Commonwealth of Virginia ( 2019 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Huff, AtLee and Malveaux
UNPUBLISHED
Argued at Fredericksburg, Virginia
GALEN MICHAEL BAUGHMAN
MEMORANDUM OPINION* BY
v. Record No. 0346-18-4 JUDGE GLEN A. HUFF
DECEMBER 17, 2019
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Daniel S. Fiore, II, Judge
Zachary C. Schauf (David A. Handzo; Michael K. Lowman;
Jenner & Block LLP; Smith Pachter McWhorter PLC, on briefs),
for appellant.
Katherine Quinlan Adelfio, Assistant Attorney General (Mark R.
Herring, Attorney General; Elizabeth Kiernan Fitzgerald, Assistant
Attorney General, on brief), for appellee.
Galen Michael Baughman (“appellant”) appeals a series of probation conditions imposed
by the Circuit Court for Arlington County after he violated his original probation conditions.
Specifically, appellant challenges the conditions which require that appellant “remain on
supervision for the rest of his life” and forbid him from any “personal internet use.”
Appellant raises three assignments of error. First, he asserts that the trial court erred in
imposing a lifetime ban on appellant’s personal internet use in violation of the First Amendment
as interpreted by the Supreme Court of the United States in Packingham v. North Carolina.
Second, appellant argues that the trial court lacked jurisdiction to increase the period of
suspension beyond that set when appellant originally was sentenced in 2004. Third, appellant
argues that the trial court abused its discretion by sentencing appellant to lifetime probation
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
accompanied with various probation conditions based upon the conclusion that appellant was
“grooming” a sixteen-year-old young man for future sexual conduct.
This Court disagrees. First, appellant failed to present his First Amendment challenge to
the trial court. He has thus waived the challenge under Rule 5A:18. Second, the trial court has
the authority to reset the terms of suspension and probation to whatever is reasonable under the
circumstances when it revokes the suspension of a sentence and re-suspends some or all of the
sentence. Thus, the trial court was not bound by the period of suspension set at appellant’s
original sentencing. Finally, the trial court did not abuse its discretion in placing appellant on
probation for the rest of his life when it found that appellant had begun grooming another minor
for sexual activity. That finding is supported by the record, and this Court will not disturb it on
appeal. Therefore, this Court affirms.
I. BACKGROUND
“This Court considers ‘the evidence presented at trial in the light most favorable to the
Commonwealth, the prevailing party below.’” Hawkins v. Commonwealth, 64 Va. App. 650,
652 (2015) (quoting Bolden v. Commonwealth, 275 Va. 144, 148 (2008)). So viewed, the
evidence is as follows:
On November 13, 2003, appellant pled guilty to aggravated sexual battery of a child less
than thirteen years old, in violation of Code § 18.2-67.3, and carnal knowledge of a child
between the ages of thirteen and fifteen years old, in violation of Code § 18.2-63. For the
aggravated sexual battery conviction, appellant was sentenced to twenty years’ incarceration
with thirteen years suspended; for the carnal knowledge conviction, appellant was sentenced to
ten years’ incarceration with three years suspended. The sentences were to run concurrently.
The circuit court imposed a ten-year period of suspension, which included a condition of
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supervised release that prohibited appellant from having “unsupervised contact with any males or
females under the age of (18), unless approved by his [probation officer].”
On February 18, 2015, while still on supervised release, appellant requested permission
from his probation officer, Lynn McCardle, to travel to Minnesota to stay with and visit some
family friends of his, the “F” family. In that request, appellant clarified that a sixteen-year-old
minor member of the family, B.F., would be present on that trip, and appellant requested
permission to have contact with that minor. McCardle gave appellant permission for contact
with B.F. so long as “an adult [was] present.”
After his February trip to Minnesota, appellant learned that B.F. had passed away as a
result of an accident on August 23, 2015. Appellant asked permission from McCardle to attend
B.F.’s funeral, which was to take place on August 29, 2015, and informed McCardle that there
“would be other teenage boys” at the funeral. McCardle granted appellant’s request, and
re-emphasized that appellant should not “leave [himself] alone in situations with minors” and
directed appellant to “ensure that there is another adult around . . . so that no one could level any
allegations.”
At the funeral, appellant met B.F.’s best friend, a then-sixteen-year-old boy, P.D.
“[E]xcited about finding someone who would talk to him about B.F. and tell him things about
B.F.,” P.D. talked with appellant “at length” while appellant was in Minnesota. After leaving
Minnesota, appellant maintained consistent communication with P.D. by way of text and phone
conversations. He did not disclose those conversations to McCardle or receive permission from
him to communicate with P.D.
After several months of communication between appellant and P.D., P.D.’s mother went
through P.D.’s cell phone and discovered the conversations between appellant and her son.
Concerned about the nature of these conversations and believing that appellant was “taking
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advantage of her son’s emotional situation regarding [B.F.’s] death,” P.D.’s mother immediately
contacted the Virginia State Police and McCardle to report appellant’s conduct. From the
months of January through April of 2016, P.D.’s mother cooperated with McCardle and provided
relevant information in preparation for a major violation report that was submitted on April 8,
2017.
Based on the major violation report, a revocation hearing was held at the trial court on
November 21, 2016. The primary focus of the hearing was whether appellant had “groomed”
P.D. Both the Commonwealth and appellant called experts on the subject. Both generally
agreed that “grooming” is the “methodology” by which a sex offender “establish[es]
relationships with minors for the purpose of establishing a sexual relationship,” which typically
involves “befriending and establishing [an] emotional connection with a child or . . . the child’s
family in order to gain trust and lower the inhibitions of the child for sexual gratification.”
The Commonwealth’s expert opined that appellant’s communications with P.D.
demonstrated grooming. For example, appellant repeatedly made positive comments on the
attractiveness of P.D., discussed the close “bond[s]” that he had with other minors, and even
encouraged P.D. to use social media applications for conversations that could not be tracked by
law enforcement or P.D.’s family:
[By the way], you know to use Kik or Snap[chat] for the
conversations you don’t want to be seen, right? Even if you delete
your texts the service provider (Verizon, AT&T, etc, [sic] can still
provide a detailed log to the cops – or your parents who can be
almost as bad!
Appellant’s expert, Dr. Fred Berlin, testified grooming is a three-step process: “step one”
referred to the establishment of a “relationship of trust” with the minor; “step two” referred to
gauging the minor’s interest in a sexual relationship; and “step three” referred to additional
efforts by the groomer to turn his or her relationship with the minor “into a sexualized
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relationship.” Dr. Berlin ultimately testified that, in his expert opinion, appellant had no
intention of turning the relationship sexual—i.e., was not grooming P.D. Although Dr. Berlin
agreed that appellant’s conduct could have been interpreted to have constituted “step one” of the
grooming process, he also believed that appellant’s conduct could have been interpreted as
ordinary conduct that “anyone who has a genuine concern in a child might have.” The trial court
found appellant violated the terms of his probation by having unauthorized contact with a minor,
P.D.
On January 6, 2017, at the sentencing hearing for the probation violation, the trial
court—based on the methodology proffered by Dr. Berlin—determined that appellant
“sufficiently completed the first step of the grooming process” when he violated his probation
conditions through his communications with P.D. Accordingly, the trial court revoked
appellant’s probation and the suspension of his sentences. The trial court required appellant to
serve one year in addition to the time served and re-suspended the balance of his sentence.
Concerned with the nature of appellant’s probation violation—that appellant “groomed”
P.D.—the trial court placed appellant on indefinite probation and, as one of the conditions of that
probation, required appellant to have “no personal internet use.”
In his pre-sentencing memorandum, appellant had suggested such a condition:
“[Appellant] makes no request for personal internet use whatsoever, or possession of devices that
access the internet. [Appellant] would only ask permission to use the internet for work purposes
on work devices.” When the trial court imposed the condition as part of lifetime probation,
appellant did not object or move for reconsideration. This appeal followed.
II. STANDARD OF REVIEW
This Court reviews probation terms and conditions for abuse of discretion. Murry v.
Commonwealth, 288 Va. 117, 122 (2014). A trial court abuses its discretion “when a relevant
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factor that should have been given significant weight is not considered; when an irrelevant or
improper factor is considered and given significant weight; [or] when all proper factors, and no
improper ones, are considered, but the court, in weighing those factors, commits a clear error of
judgment.” Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 352 (2011)
(internal quotation marks omitted). However, to the extent that a review of the trial court’s
imposed probation conditions involves pure questions of law, those questions are reviewed de
novo. Montgomery County v. Virginia Dept. of Rail and Public Transp., 282 Va. 422, 435
(2011); see also Porter v. Commonwealth, 276 Va. 203, 260 (2008) (“‘[A trial] court by
definition abuses its discretion when it makes an error of law.’” (quoting Koon v. United States,
518 U.S. 81, 100 (1996))); Shivaee v. Commonwealth, 270 Va. 112, 119 (2005)
(“[C]onstitutional arguments are questions of law that we review de novo.”). Moreover, “the
‘authority of the trial court to revoke [an] appellant’s suspended sentence is one of statutory
interpretation and presents a pure question of law, which this Court reviews de novo.’” Green v.
Commonwealth, 69 Va. App. 99, 103 (2018) (quoting Wilson v. Commonwealth, 67 Va. App.
82, 88-89 (2016)).
III. FIRST AMENDMENT CHALLENGE
In his first assignment of error, appellant contends that the condition prohibiting him
from using the internet for personal purposes violates his First Amendment rights. Specifically,
he contends that Packingham v. North Carolina, 137 S. Ct. 1730 (2017), holds that convicted
sex-offenders have a First Amendment right to access the internet and banning him from all
personal use violates that principle.
Appellant failed to raise this issue with the trial court. Rule 5A:18 provides that “No
ruling of the trial court . . . will be considered as a basis for reversal unless an objection was
stated with reasonable certainty at the time of the ruling, except for good cause shown or . . . to
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attain the ends of justice.” “Rule 5A:18 applies to bar even constitutional claims.” Ohree v.
Commonwealth, 26 Va. App. 299, 308 (1998). In order to preserve an issue for appeal, “an
objection must be timely made and the grounds stated with specificity.” McDuffie v.
Commonwealth, 49 Va. App. 170, 177 (2006) (quoting Marlowe v. Commonwealth, 2 Va. App.
619, 621 (1986)).
Appellant acknowledges that he did not raise his First Amendment claim in the trial
court. He argues that this Court should nevertheless consider his claim under either the “good
cause” or “ends of justice” exceptions to 5A:18.1
First, the “good cause” exception is inapplicable here. “The Court may only invoke the
‘good cause’ exception where an appellant did not have the opportunity to object to a ruling in
the trial court; however, when an appellant ‘had the opportunity to object but elected not to do
so,’ the exception does not apply.” Perry v. Commonwealth, 58 Va. App. 655, 667-68 (2011)
(quoting Luck v. Commonwealth, 32 Va. App. 827, 834 (2000)). Appellant asserts that because
Packingham had not been decided when the trial court imposed the condition forbidding personal
internet use, “good cause” excuses his failure to raise the issue. Although Packingham had not
been decided, appellant still could have raised an objection to the imposition of the probation
condition forbidding personal internet use. The Supreme Court has required litigants to raise a
general principle to preserve an issue even when new law significantly changes the analysis.
See, e.g., McGhee v. Commonwealth, 280 Va. 620, 625 (2010) (“McGhee cannot invoke
1
Appellant also argues that others have a First Amendment right to hear what he has to
say and to communicate with him. He argues that he cannot waive the First Amendment rights
of others. Although he may be correct in the abstract that the First Amendment rights of others
are implicated by the restriction on his internet use, this Court need not decide that question.
This Court concludes that he does not have standing to assert the First Amendment rights of
others when he has waived his own First Amendment right. Cf. McCoy v. Commonwealth, 2
Va. App. 309, 311 (1986) (“Fourth Amendment rights are personal rights which . . . may not be
vicariously asserted.” (quoting Alderman v. United States, 394 U.S. 165, 174 (1969))).
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[Arizona v.] Gant[, 556 U.S. 332 (2009),] on appeal when he did not object to the search incident
to arrest below.”).
Further, appellant suggested the condition.2 Appellant claims that his willingness to
submit to the internet use restriction, when he had no reason to believe it would be lifelong,3 is
qualitatively different than a lifelong prohibition. Even if that were true, appellant had the
opportunity to object at the end of the hearing where the trial court announced it was imposing
the condition as a part of lifelong probation. Moreover, appellant could have moved for
reconsideration at any time between the hearing of January 6, 2017 and the time when the trial
court’s orders became final twenty-one days after their issuance. Cf. Simmers v.
Commonwealth, 11 Va. App. 375, 377 (1990) (“At sentencing Simmers did not object to the
conditions placed on his suspended sentence. Further, he made no motion within twenty-one
days of sentencing that the provisions be vacated, nor did he note an appeal from the decision of
the trial court. . . . [Therefore] he cannot prevail on appeal unless the trial court either lacked
jurisdiction or imposed a sentence greater than that authorized by law.”). Thus, appellant had the
opportunity to object to the probation condition as a violation of his First Amendment rights, and
failed to do so.4 The “good cause” exception to Rule 5A:18 does not apply.
2
Because this Court concludes that appellant failed to preserve the issue under Rule
5A:18, this Court need not decide whether appellant invited the error by suggesting the probation
condition under the mistaken belief that probation would expire in only a few years.
3
At the violation hearing—several months before appellant submitted his presentencing
memorandum suggesting the internet restriction—the Commonwealth suggested that appellant
“needs to be watched for every day, and week, and second, and month, and year for the rest of
his life.”
4
Moreover, the restriction on using the internet is a condition of appellant’s probation.
Thus, under Code § 19.2-304, the trial court has the authority to modify the condition. The
Commonwealth conceded at oral argument that appellant could move to modify the condition
restricting his internet use based on the development of the law under Packingham. Thus,
despite his initial failure to object to the condition, he is not without a means by which to pursue
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Second, the “ends of justice” exception is likewise inapplicable. “On appeal, a litigant
may avail himself of the ends of justice exception and raise an unpreserved issue if the trial
court’s error ‘was “clear, substantial and material.”’” Mohamed v. Commonwealth, 56 Va. App.
95, 102 (2010) (quoting West v. Commonwealth, 43 Va. App. 327, 338 (2004)). “The ‘ends of
justice’ exception to Rule 5A:18 is ‘narrow and is to be used sparingly.’” Pearce v.
Commonwealth, 53 Va. App. 113, 123 (2008) (quoting Bazemore v. Commonwealth, 42
Va. App. 203, 219 (2004) (en banc)). “Application of the ends of justice exception is
appropriate when the judgment of the trial court was error and application of the exception is
necessary to avoid a grave injustice or the denial of essential rights.” Brown v. Commonwealth,
279 Va. 210, 219-20 (2010) (quoting Charles v. Commonwealth, 270 Va. 14, 17 (2005)). “In
order to avail oneself of the exception, a defendant must affirmatively show that a miscarriage of
justice has occurred, not that a miscarriage might have occurred.” Redman v. Commonwealth,
25 Va. App. 215, 221 (1997). “[A] manifest injustice occurs when a defendant receives a
sentence beyond the power of a court to pronounce.” Commonwealth v. Bass, 292 Va. 19, 30
(2016).
Appellant contends that a total ban on personal internet use was beyond the authority of
the trial court. Thus, he contends, the ends of justice exception permits him to raise the issue for
the first time on appeal, even though he never objected to the probation condition. This Court
disagrees.
“‘Inherent in the very nature of probation is that probationers “do not enjoy the absolute
liberty to which every citizen is entitled,”’ ‘but only . . . conditional liberty properly dependent
on observance of [probation conditions].’” Fazili v. Commonwealth, ____ Va. App. ____, ____
relief. Nevertheless, he must begin by presenting the issue first to the trial court for its
resolution.
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(Dec. 3, 2019) (alterations in original) (quoting United States v. Knights, 534 U.S. 112, 119
(2001), and Morrissey v. Brewer, 408 U.S. 471, 480 (1972)). Nevertheless, even probationers
retain a First Amendment interest in accessing the internet. Id. at ____. The trial court may only
restrict that right to the extent that a “probation condition is narrowly tailored to effectuate either
rehabilitative or public-safety purposes.” Id. at ____ (citing Packingham, 137 S. Ct. at 1737).
Significantly, however, nothing in Fazili or Packingham suggests that a probation condition
prohibiting all internet use could not be justified in some circumstances. Id. at ____ (“We do not
foreclose the possibility that such a broad restriction on access to the internet could be justified in
a particular case.”).
Thus, a probation condition prohibiting any internet use is not “beyond the power of a
court to pronounce,” even if such a condition may be unjustified in many instances. If the “ends
of justice” exception permitted this Court to consider any argument that a probation condition is
unjustified in a specific case, despite the trial court having authority to impose it when justified
by the facts, the “ends of justice” exception “would obviate the requirement for making an
adequate motion to strike or a contemporaneous objection.” Redman, 25 Va. App. at 221.
Therefore, appellant has failed to demonstrate a miscarriage of justice has occurred and this
Court will not apply the “ends of justice” exception to Rule 5A:18. If appellant had presented
the trial court with his arguments regarding the expansive nature of the restriction on his internet
use, the trial court could have tailored the condition to fit appellant. Martin v. Commonwealth,
13 Va. App. 524, 530 (1992) (en banc) (“The primary function of Rule 5A:18 is to alert the trial
judge to possible error so that the judge may consider the issue intelligently and take any
corrective actions necessary to avoid unnecessary appeals, reversals and mistrials.”). He did not.
He, therefore, waived his First Amendment challenge to the probation condition.
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IV. AUTHORITY FOR LIFETIME PROBATION
In his second assignment of error, appellant asserts that the trial court erred in placing
him on probation for the remainder of his life because the trial court did not also extend the
suspension of his sentence.5 He claims that probation cannot extend beyond the period of
suspension. Moreover, he argues, even if the trial court did extend the suspension of his
sentence, it did not have the authority to do so because Code §§ 19.2-303.1 and 19.2-303 only
allow setting the period of suspension at a defendant’s original sentencing. He also argues that
this Court’s decisions in Reinke v. Commonwealth, 51 Va. App. 357 (2008), and Canty v.
Commonwealth, 57 Va. App. 171 (2010), forbid a trial court, during a revocation proceeding,
from “extend[ing] . . . the length of the period of suspension.” Canty, 57 Va. App. at 179 n.9
(quoting Reinke, 51 Va. App. at 368).
Appellant’s arguments ignore a critical provision in Code § 19.2-306 and rely on dicta
from Reinke, quoted by further dicta in Canty, that is in direct contravention of the holdings of
several other decisions of this Court. Moreover, both of appellant’s arguments—that the trial
court did not extend the period of the suspension and, even if it did, it did not have the authority
to do so—rest on a fundamental misunderstanding about the nature of the suspension of a
sentence. Thus, it is necessary to begin with a brief explanation of the suspension of sentences
before delving into the specifics of each of his arguments.
5
The Commonwealth contends that appellant failed to preserve this assignment of error.
Because analysis of the preservation of this issue is complicated by appellant’s invocation of the
“end of justice” exception to 5A:18, this Court concludes that resolving this issue on the merits is
the “narrowest and best ground” for resolving this issue. Harvey v. Commonwealth, 65
Va. App. 280, 285 n.2 (2015) (holding this Court may resolve a case on the merits when it
concludes “resolving the merits of the question presented constitutes the narrowest and best
ground” for the decision).
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A. Suspension of Sentences
Code § 19.2-303 permits a trial court, when originally imposing a sentence, to “suspend
the sentence in whole or part . . . under terms and conditions which shall be entered in writing by
the court.” When a trial court suspends all or part of a sentence—especially in connection with
probation—it is an “act of grace.” Hunter v. Commonwealth, 56 Va. App. 582, 587 (2010)
(quoting Price v. Commonwealth, 51 Va. App. 443, 448 (2008)). The defendant is relieved from
serving all or part of his sentence but is subjected to conditions designed to rehabilitate him. See
Pierce v. Commonwealth, 48 Va. App. 660, 667 (2006). The suspended sentence remains
available to be imposed as a “real consequence[]” of violating the conditions of probation or the
conditions of the suspension of the sentence. Price, 51 Va. App. at 449. Furthermore, and key to
this case, the trial court may set the period of suspension of the sentence—i.e., how long the
defendant must comply with the conditions or face imposition of the suspended sentence—“for a
reasonable time, having due regard to the gravity of the offense, without regard to the maximum
period for which the defendant might have been sentenced.” Code § 19.2-303.1.
When the trial court finds a defendant in violation of the terms of the suspension of his
sentence it “revoke[s] the suspension of sentence.” Code § 19.2-306(A). In plainer terms, the
suspension of the sentence—including the term and conditions of suspension—no longer exists,
and the entire remainder of the original sentence is imposed by operation of law.
If the trial court wishes to require a defendant to serve only a portion of the outstanding
sentence, the trial “court may again suspend all or any part of this sentence and may place the
defendant upon terms and conditions or probation.” Code § 19.2-306(C) (emphasis added). The
sentencing after revocation “is a new sentencing event.” Reinke, 51 Va. App. at 367. Equally
important, the decision to “again” suspend part of the sentence is a new suspension of the
sentence. See Briggs v. Commonwealth, 21 Va. App. 338, 343-44 (1995) (holding that when a
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trial court revoked and re-suspended a sentence but did not explicitly set a period of suspension,
the default period of suspension in Code § 19.2-306(A) began running from the date of the
revocation and re-suspension, not the original sentencing); Wright v. Commonwealth, 32
Va. App. 148, 153 (2000) (holding that a trial court that re-suspended a sentence “on the same
terms and conditions” as its original sentencing order created a new five-year suspension of the
sentence rather than a suspension that expired five years from the original sentencing order).
The trial court may choose to impose the same term of suspension and conditions of suspension
that were imposed at the original sentencing, but it is not obligated to do so. If the trial court
imposes the same term and conditions on re-suspension as the original suspension, the trial court
is independently choosing to re-impose the same conditions.6
B. The Trial Court’s Order
In light of the foregoing framework, appellant’s contention that the trial court erred in
placing him on probation for life because it did not explicitly “extend” the suspension of his
sentence for life is without merit. In a technical sense, a trial court never “extends” the period of
suspension after a revocation. Instead, it independently sets the new period of suspension to
expire at the same time, or a different time, as the prior, now revoked, period of suspension.
Thus, when this Court considers the revocation and re-suspension order, this Court does not read
into the order the previous period of suspension. Here, after revoking the original suspension,
the trial court suspended, without stating the period of suspension, part of the remainder of
appellant’s sentence. It then placed him on probation for the rest of his life. Because probation
6
Because all conditions on the suspension of a sentence must be reasonable in light of the
circumstances of the case, the trial court cannot arbitrarily choose drastically different conditions
of suspension without raising the possibility that the conditions are not reasonable. Nevertheless,
the conditions of the new suspension are not derivative of the conditions of the prior suspension
unless the trial court explicitly incorporates the original terms. E.g. Wright, 32 Va. App. at 153
(re-suspending a sentence after revocation “on the same terms and conditions” as the original
sentencing order).
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must be coupled with the suspension of the sentence, see Hartless v. Commonwealth, 29
Va. App. 172, 175 (1999) (“To be effective, probation must be concurrent with a coordinate term
of suspension of sentence.”), the only reasonable interpretation of the trial court’s order is that it
also suspended the remainder of appellant’s sentence for the rest of his life.
C. The Trial Court’s Authority
Appellant contends that even if the trial court suspended his sentence for life, it was error
for it to do so because the trial court did not have authority to extend the suspension of his
sentence beyond the term set in the original sentencing order. Appellant points to language in
Reinke (also quoted by Canty) stating that a trial court “may not extend . . . the length of the
period of suspension,” even after the revocation of the suspension of a sentence. Appellant
acknowledges that the holdings of Briggs and Wright are directly contrary to his position, but
claims that Reinke and Canty create a direct conflict within this Court’s jurisprudence and the
rule stated by Reinke is more consistent with the statute.
Appellant’s argument fails for two reasons. The language he cites from Reinke and
Canty is dicta. Moreover, even if there were a conflict, the holdings in Briggs and Wright are
consistent with the statutory scheme.
1. Reike’s language limiting the extension of the suspension of a sentence is dicta.
The language appellant relies on from Reinke is dicta. In Reinke, the defendant had been
ordered (with his consent) to pay support to his wife while he was imprisoned as a condition of
the suspension of the remainder of his sentence. The defendant ceased paying after several
years, and the Commonwealth sought to revoke the suspension of the defendant’s sentence. He
asked the trial court to reconsider his sentence and relieve him of the payment obligation. The
trial court concluded it did not have the authority to modify it. This Court affirmed, but only in
part. It held that the trial court did not have the authority to retroactively modify the condition
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that appellant pay support. This Court held, however, that the trial court erred in concluding it
did not have authority to modify the support condition prospectively once it had revoked the
initial suspension of appellant’s sentence. This Court noted that when the trial court
re-suspended the sentence it was “a new sentencing event, restricted only by limitations that it
may not extend the length of the original sentence or the length of the period of suspension and,
as is the case with an original suspension, that any conditions of suspension be reasonable.”
Reinke, 51 Va. App. at 367-68. The language that the trial court could not extend “the length of
the period of suspension,” however, was not relevant to the decision. The trial court did not
extend the length of the suspension, and the length of the suspension was not at issue. Thus, the
language that the trial court could not extend the length of the suspension of the sentence was
dicta and is not binding.7
2. Briggs and Wright explicitly hold a trial court has the authority to extend the
suspension of a sentence after a revocation.
Moreover, both Briggs and Wright explicitly hold that the length of the suspension of a
sentence can be “extended”8 when the suspension is revoked and the sentence is re-suspended.
In Briggs, the trial court suspended the defendant’s sentence; a year and a half later, it revoked
the suspension and re-suspended the sentence. In neither instance did the trial court specify the
length of the suspension of the sentence. When the defendant committed a new offense just shy
7
Canty’s quotation of the language from Reinke is likewise dicta. The issue in Canty
was the authority of the trial court to consider misconduct by the defendant—that it had not
previously considered but that had occurred before a revocation and re-suspension—as the basis
for a later revocation. The authority of the trial court to “extend” the suspension was not at issue.
Moreover, immediately after the quotation from Reinke, this Court cited Wright for the
proposition that the trial court had the authority to “extend” the suspension when it revoked and
re-suspended a sentence. Canty, 57 Va. App. at 179 n.9.
8
The term “extended” is used in this fashion colloquially by many practitioners, by
appellant, and by Reinke and Wright. In reality, the suspension of a sentence is never extended
because a re-suspension with a new expiration is, by definition, a new sentencing event and a
new suspension.
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of ten years later, the trial court again revoked the suspension of his sentence. The defendant
contended the trial court did not have the authority to revoke the suspension. He claimed the
default suspension period under Code § 19.2-306 was measured from his original sentencing and
thus had expired before he committed the offense. This Court rejected his contention. It held
that the default suspension period was measured from the date of the re-suspension and thus the
trial court had authority to revoke the suspension. Briggs, 21 Va. App. at 343-44. The implicit
premise of that conclusion is that the trial court has the authority to set the term of suspension
after revoking a previous suspension of the same sentence.
Similarly, in Wright, the trial court suspended the defendant’s sentence for five years. It
then twice revoked the suspension and re-suspended portions of the sentence “on the same terms
and conditions,” as the original order. The defendant was convicted of a new crime more than
five years after the original sentencing but less than five years after the most recent revocation
and re-suspension. During the next revocation proceeding, the defendant contended the trial
court did not have the authority to revoke the suspension of his sentence because it had been
more than five years since the first sentencing. This Court again rejected the argument. This
Court held the trial court had intended to set new five-year terms each time it revoked and
re-suspended. This Court also explicitly held that the trial court had the authority to extend the
suspension in this fashion. Wright, 32 Va. App. at 153.
3. The Code permits a trial court to set, anew, the period of suspension when it
re-suspends a sentence after revocation.
The holdings of Briggs and Wright—that the trial court has the authority to set an entirely
new period of suspension without reference to the expiration of the period of suspension set in
the original sentencing order—is entirely consistent with the statutory scheme for suspension of
sentences.
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Appellant claims that Code § 19.2-303.1 allows the trial court to “fix the period of
suspension” only when the trial court “suspends” the sentence. He argues that the trial court
only has authority to suspend a sentence under Code § 19.2-303 immediately “after conviction.”
Even if Code § 19.2-303 only allows the trial court to suspend a sentence immediately after
conviction, however, Code § 19.2-306(C) allows the trial court to “again suspend” the sentence.
Thus, in a new suspension after the revocation of the suspension of a sentence, Code
§ 19.2-303.1 still applies to allow the trial court to again set the length of the suspension. Thus,
the holdings in Briggs and Wright are consistent with the statute and the trial court had the
authority to suspend appellant’s sentence for the remainder of his life after it revoked the
previous suspension. Therefore, the trial court did not err by concluding it had the authority to
place appellant on probation for the rest of his life.
V. REASONABLENESS OF PROBATION TERM AND CONDTIONS
Finally, in his third assignment of error, appellant makes two arguments. He argues that
the trial court erred in finding that he was grooming P.D. He next argues that a lifetime of
probation was not justified under the circumstances of his case. Neither argument has merit.
First, the trial court’s finding that appellant was grooming P.D. is supported by the
evidence. “The credibility of the witnesses and the weight accorded the evidence are matters
solely for the fact finder who has the opportunity to see and hear that evidence as it is presented.”
Elliott v. Commonwealth, 277 Va. 457, 462 (2009). This Court gives “deference to the fact
finder who, having seen and heard the witnesses, assesses their credibility and weighs their
testimony.” Id. Thus, this Court must accept “the trial court’s determination of the credibility of
witness testimony unless, ‘as a matter of law, the testimony is inherently incredible.’” Nobrega
v. Commonwealth, 271 Va. 508, 518 (2006) (quoting Walker v. Commonwealth, 258 Va. 54,
70-71 (1999)).
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“The power to segregate a witness’s testimony into the believable, partly believable, or
wholly unbelievable is an exercise of decisional discretion intrinsic to the factfinding task and
essential to its proper performance.” Harper v. Commonwealth, 49 Va. App. 517, 523 (2007).
“Furthermore, a fact finder’s evaluations of credibility are not limited to choosing between
competing accounts offered by different witnesses, but often include, as in this case, resolving
conflicts in a single witness’ testimony, accepting that part of the testimony it deems credible and
rejecting the portion it deems incredible.” Commonwealth v. McNeal, 282 Va. 16, 22 (2011).
Here, the trial court had sufficient evidence to support its finding that appellant was
grooming P.D. for future sexual activity. The Commonwealth’s expert testified that the text
messages between appellant and P.D. demonstrated appellant was grooming P.D.9 Although
appellant’s expert opined appellant was not grooming P.D., he agreed that appellant’s conduct
could have been the first step and that at least some of appellant’s text messages to P.D. were
inappropriate, such as the message encouraging P.D. to use untraceable messaging apps to hide
his conversations from his parents. Moreover, the trial court had the text message before it.
There was sufficient evidence to accept Dr. Berlin’s opinion that appellant’s conversations fit
within step one of the grooming process and reject his ultimate conclusion that appellant was not
grooming P.D. Thus, the evidence supports the trial court’s factual finding that appellant was
grooming P.D., and this Court will not disturb that finding on appeal.
9
Appellant claims the trial court rejected the Commonwealth’s expert’s testimony and
thus that testimony cannot support the finding that appellant was grooming P.D. The trial court,
however, did not reject the Commonwealth’s expert testimony. It found it unnecessary to rely on
the Commonwealth’s expert because it found appellant’s expert testimony sufficient to find
appellant was grooming P.D. Because the trial court did not explicitly find the Commonwealth’s
expert incredible, this Court can rely on his testimony as evidence to support a finding appellant
was grooming P.D. Perry v. Commonwealth, 280 Va. 572, 580 (2010) (“[A]n appellate court’s
‘examination is not limited to the evidence mentioned by a party in trial argument or by the trial
court in its ruling.’” (quoting Bolden v. Commonwealth, 275 Va. 144, 147 (2008))).
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Second, the trial court could properly conclude that lifetime probation with the conditions
it imposed was reasonable in light of the circumstance. “The sole statutory limitation placed
upon a trial court’s discretion in its determination of such conditions is one of reasonableness.”
Anderson v. Commonwealth, 256 Va. 580, 585 (1998). “Probation conditions must be
reasonable in light of the nature of the offense, the defendant’s background, and the surrounding
circumstances.” Murry v. Commonwealth, 288 Va. 117, 122 (2014).
Appellant contends that the Supreme Court’s decision in Murry, 288 Va. at 130,
necessitates reversal of appellant’s lifetime probation. In Murry, at the defendant’s initial
sentencing after conviction for the rape of his stepdaughter, the trial court placed the defendant
on probation for the rest of his life. It found the defendant had been grooming his stepdaughter
for years and concealing it from the rest of his family. One of the conditions of probation was
that he submit to any search demanded by his probation officer or law enforcement, even if the
demand was not based on any individualized suspicion. The Supreme Court held that as a “total
surrender of [the defendant’s] Fourth Amendment Rights,” the condition was not “necessary to
facilitate his rehabilitation and protect the public.” Id. at 127-28. Tellingly, however, the
Supreme Court discussed how a narrower search provision might have been justified and did not
hold that lifetime probation was unjustified under the circumstances.
Although appellant discusses how the conditions of his probation impact his
constitutional rights, he only requests this Court reverse the trial court’s imposition of lifetime
probation, not any of the specific conditions.10 Thus, this Court need only examine the
limitations of appellant’s rights to the extent that the conditions make lifetime probation
unreasonable. Here, the trial court’s imposition of lifetime probation was justified.
10
Appellant does challenge the personal internet use condition, but as noted earlier, he
has waived his challenge to that specific condition by failing to raise it in the trial court.
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First, unlike in Murry, the trial court did not impose lifetime probation at the initial
sentencing. Although both the defendant in Murry and appellant were convicted of sexually
abusing minors, here, the trial court only imposed lifetime probation after appellant violated the
conditions of his original probation by grooming another minor. Second, although appellant’s
privacy, associational, and travel rights may be restricted to some degree, none of the conditions
appellant complains of result in the “total surrender” of a constitutional right. Finally, although
the Supreme Court in Murry invalidated the search waiver condition, it did not hold that
imposing lifetime probation on the defendant was improper.
Here, where appellant was convicted of sexually abusing minors and had prolonged
unauthorized contact with another minor whom the trial court found was being groomed,11 the
trial court did not abuse its discretion in determining appellant needed to be supervised for the
remainder of his life.
VI. CONCLUSION
First, appellant waived his First Amendment challenge to the probation condition
restricting his internet use. He failed to raise the issue in the trial court, and Rule 5A:18 now
bars its consideration by this Court.
Second, the trial court had the authority to place appellant on probation for the rest of his
life. The trial court implicitly suspended appellant’s sentence for the remainder of his life when
it placed him on probation indefinitely. The trial court had authority to do so because a
11
Appellant repeatedly argues that the trial court erred in taking into account the
grooming because P.D. was sixteen years old and therefore above the age of consent in
Minnesota where he lives. Regardless of whether P.D. was above the age of consent in
Minnesota, the trial court could reasonably conclude that grooming P.D. was inappropriate and
justified further monitoring through probation. Appellant claims that even if the “grooming” led
to sexual activity, it would not have been the “new offense” the trial court was concerned about.
This ignores the fact that if appellant’s grooming of P.D. led him to sexual activity in Virginia, it
would be criminal. See Code § 18.2-371.
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re-suspension of a sentence after the revocation of a previous suspension is a new suspension,
and the period of the new suspension is not restricted by the period of a previous suspension.
Third, the decision to place appellant on probation for life was reasonable and not an
abuse of discretion when the trial court found, with sufficient support in the record, that appellant
had been grooming another minor for sexual activity.
Therefore, this Court affirms.
Affirmed.
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