Dayman Aaron Carter v. Commonwealth of Virginia ( 2014 )


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  •                                              COURT OF APPEALS OF VIRGINIA
    Present: Chief Judge Felton, Judges Kelsey and Petty
    UNPUBLISHED
    Argued at Richmond, Virginia
    DAYMAN AARON CARTER
    MEMORANDUM OPINION* BY
    v.     Record No. 0941-13-2                              CHIEF JUDGE WALTER S. FELTON, JR.
    MAY 6, 2014
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF ORANGE COUNTY
    Daniel R. Bouton, Judge
    Kirk T. Milam (The Law Office of Kirk T. Milam, P.L.C., on brief),
    for appellant.
    Leah A. Darron, Senior Assistant Attorney General (Kenneth T.
    Cuccinelli, II, Attorney General, on brief), for appellee.
    Dayman Aaron Carter (“appellant”) appeals the judgment of the Circuit Court of Orange
    County (“trial court”) that he violated the terms and conditions of his supervised probation.
    Appellant asserts that his five-year probation term, imposed as a condition of his suspended
    sentence, expired prior to the date he was convicted of the offense that gave rise to the probation
    violation. He further contends the trial court abused its discretion by first revoking and then
    re-imposing his two-year-and-six-month suspended sentence. In the alternative, he asserts that
    the trial court erred by failing to resuspend all or part of the re-imposed sentence.
    I. BACKGROUND
    On December 10, 2003, the trial court sentenced appellant to a five-year term of
    imprisonment for assaulting a police officer, in violation of Code § 18.2-57(C). The trial court
    imposed an active sentence of one year and nine months’ incarceration of appellant’s five-year
    *
    Pursuant to Code § 17.1-413, this opinion is not designated for publication.
    sentence. The trial court suspended the remainder of appellant’s sentence on the condition that he
    be of good behavior for a period of ten years following his release from confinement after serving
    the active sentence. The trial court placed appellant on supervised probation for a period of five
    years, also to commence upon his release from confinement after serving the one year and nine
    months’ active sentence.
    On March 16, 2007, appellant was released from confinement. On that date, he commenced
    serving his five-year term of probation and ten-year term of good behavior, terms imposed by the
    trial court as conditions of the court’s suspending appellant’s remaining sentence of three years and
    three months’ imprisonment.1
    On October 6, 2008, the trial court found that appellant had violated the terms and
    conditions of his probation and suspended sentence by possessing cocaine.2 The trial court
    revoked the remaining three years and three months of appellant’s suspended sentence from his
    2003 conviction. It then resuspended two years and six months of that sentence, and ordered
    appellant to serve an active sentence of nine months’ imprisonment of the previously suspended
    sentence. The trial court imposed “the same conditions as stated in the previous sentencing
    order” as a condition for resuspending the unserved portion of appellant’s 2003 sentence. On
    April 20, 2009, appellant was released from confinement imposed as a result of his 2008
    probation violation.
    1
    “[T]he condition of good behavior is implicit in every order suspending sentence, is a
    condition of every such suspension, whether probation is provided for or not, and applies
    ‘whether expressly so stated or not.’” Collins v. Commonwealth, 
    269 Va. 141
    , 146, 
    607 S.E.2d 719
    , 721 (2005) (quoting Coffey v. Commonwealth, 
    209 Va. 760
    , 762-63, 
    167 S.E.2d 343
    ,
    344-45 (1969)).
    2
    It is unclear from the record on appeal whether appellant was convicted of possession of
    cocaine.
    -2-
    On October 6, 2012, appellant was arrested for distribution of cocaine, second or
    subsequent offense, in violation of Code § 18.2-248.3 On November 15, 2012, appellant was
    convicted of that offense and sentenced to thirty years’ incarceration, with twenty-five years
    suspended.
    On April 27, 2013, appellant was brought before the trial court for a revocation hearing
    based upon his 2012 felony drug conviction. The trial court found that appellant “clearly has
    violated the terms and conditions of the [c]ourt’s prior order, be it supervised probation and/or
    the period of good behavior. At the very least he’s violated the good behavior requirement with
    his new serious felony conviction.” In its final written order, the trial court “[found] the
    defendant has violated the conditions of his probation and is guilty as charged.” The trial court
    then imposed appellant’s previously suspended sentence of two years and six months’
    incarceration remaining from his 2003 conviction, ordered that appellant’s sentence run
    consecutively with any other sentences, and terminated appellant’s supervised probation.
    II. ANALYSIS
    On appeal from a revocation of a suspended sentence, the judgment of the trial court will not
    be reversed absent a clear showing of abuse of discretion. Dunham v. Commonwealth, 
    59 Va. App. 634
    , 638, 
    721 S.E.2d 824
    , 826, aff’d, 
    284 Va. 511
    , 
    733 S.E.2d 660
     (2012).
    A.
    Appellant argues that his supervised probation period, imposed in 2003 as a condition of
    his suspended sentence, expired on March 16, 2012, five years after his March 16, 2007 release
    date from imprisonment for assaulting a law enforcement officer. He contends that he was no
    longer on probation as of November 15, 2012, the date of his conviction of distribution of
    cocaine. Accordingly, appellant asserts the trial court erred by ruling that he violated the terms
    3
    The arrest warrant charged that the date of offense was May 17, 2012.
    -3-
    and conditions of his supervised probation when he was convicted of the new drug offense on
    November 15, 2012.
    Code § 19.2-306(A) provides, in pertinent part, “[i]n any case in which the court has
    suspended the execution or imposition of sentence, the court may revoke the suspension of
    sentence for any cause the court deems sufficient that occurred at any time within the probation
    period, or within the period of suspension fixed by the court.”
    Code § 19.2-303.1 provides that a trial court may suspend a sentence “for a reasonable
    time.” That provision applies not only to any condition imposed as a condition of the sentence
    imposed at an accused’s initial sentencing, but also to any suspension of a sentence imposed in a
    subsequent revocation proceeding. Wright v. Commonwealth, 
    32 Va. App. 148
    , 153, 
    526 S.E.2d 784
    , 787 (2000). A trial court has “authority to extend the suspension period when it sentence[s]
    appellant following appellant’s violations of the conditions of his previously suspended
    sentence,” so that “each of the trial court’s revocation orders sets new . . . suspension periods,
    which [run] from the dates of entry of the revocation orders.” Id. at 150-51, 
    526 S.E.2d at 785-86
    .
    The Commonwealth argues that appellant’s period of supervised probation had not
    expired as of November 15, 2012, the date of his conviction of distribution of cocaine. The
    Commonwealth asserts that the trial court imposed a new five-year term of supervised probation
    when it found him guilty of his first probation violation on October 6, 2008. On that date, the
    trial court revoked appellant’s previously suspended sentence, imposed an active sentence of
    nine months, and then resuspended two years and six months of appellant’s sentence on “the
    same conditions as stated in the previous sentencing order.” The Commonwealth asserts that a
    plain reading of the trial court’s October 6, 2008 order demonstrates that the court intended a
    new five-year term of probation to commence on the date appellant was released from
    -4-
    confinement after serving a portion of his suspended sentence as a result of the first probation
    violation.4
    Appellant, for his part, argues that the trial court did not intend to impose a new five-year
    period of supervised probation to commence upon his release from incarceration for his first
    probation violation. Rather, appellant asserts that the trial court’s October 6, 2008 order merely
    reiterated that he would remain subject to supervised probation until March 16, 2012, five years
    from his March 16, 2007 release from incarceration on his original conviction.
    Trial courts “have the authority to interpret their own orders,” and appellate courts “‘give
    deference to the interpretation adopted by the lower court.’” Fredericksburg Constr. Co. v. J.W.
    Wyne Excavating, Inc., 
    260 Va. 137
    , 144, 
    530 S.E.2d 148
    , 152 (2000) (quoting Rusty’s Welding
    Serv., Inc. v. Gibson, 
    29 Va. App. 119
    , 129, 
    510 S.E.2d 255
    , 260 (1999) (en banc)). Here, the
    trial court’s October 6, 2008 order, entered after appellant’s first probation violation, conditioned
    appellant’s resuspended sentence of two years and six months’ imprisonment on “the same
    conditions as stated in the previous sentencing order.” After the entry of the October 6, 2008
    order, the trial court, the probation officer,5 and appellant himself6 operated in a manner
    consistent with recognizing that the trial court had in fact ordered that appellant serve a new
    five-year term of supervised probation as a condition of the resuspension of a portion of his
    4
    Appellant was released from confinement on April 20, 2009.
    5
    On March 12, 2013, the probation officer issued a major violation report as a result of
    appellant’s new felony conviction. In that report, and in the probation officer’s letter
    subsequently issued to the trial court, the officer noted that appellant’s period of supervised
    probation ran from April 20, 2009, the date of his release from incarceration on his first
    probation violation, to at least April 20, 2014.
    6
    Appellant persisted in reporting to his probation officer as of May 2012, in
    contraindication of his assertion that his term of supervised probation expired on March 16,
    2012, five years after his release from confinement for his conviction of assaulting a law
    enforcement officer.
    -5-
    initial sentence, to commence upon appellant’s release from incarceration for the October 6,
    2008 probation violation. Appellant was released from incarceration on April 20, 2009,
    commencing a five-year probation period that would expire on April 20, 2014. At appellant’s
    April 27, 2013 revocation hearing, following his new felony conviction in November 2012, the
    trial court imposed appellant’s previously suspended sentence of two years and six months’
    incarceration, ordered that appellant’s sentence run consecutively with any other sentences, and
    terminated appellant’s supervised probation. By terminating appellant’s supervised probation on
    April 27, 2013, the trial court clearly indicated that it found appellant continued to be subject to
    serving the five-year term of probation that commenced on April 20, 2009, following appellant’s
    release from incarceration for his first probation violation in October 2008.
    Appellant was well within the five-year probation period that commenced on April 20,
    2009, the date of his release from confinement after serving a portion of his previously
    suspended sentence imposed for his first probation violation, when he was convicted of
    distribution of cocaine on November 15, 2012. Accordingly, we conclude that the trial court did
    not abuse its discretion by finding that appellant had violated the conditions of his supervised
    probation, imposed as a condition of suspending a portion of his sentence to confinement, when
    he was convicted of distribution of cocaine on November 15, 2012.
    B.
    Appellant further asserts the trial court erred by revoking and re-imposing his remaining
    two-year-and-six-month suspended sentence from his 2003 conviction, or in the alternative, by
    failing to resuspend all or part of the re-imposed sentence. He contends that he performed
    successfully on probation for a period of three years, that he maintained employment during that
    time, and that he did not test positive for any illegal substances.
    -6-
    “A trial court has broad discretion to revoke a suspended sentence and probation based on
    Code § 19.2-306, which allows a court to do so ‘for any cause deemed by it sufficient.’” Davis
    v. Commonwealth, 
    12 Va. App. 81
    , 86, 
    402 S.E.2d 684
    , 687 (1991). Code § 19.2-306 is “highly
    remedial and should be liberally construed to provide trial courts a valuable tool for
    rehabilitation of criminals.” Grant v. Commonwealth, 
    223 Va. 680
    , 684, 
    292 S.E.2d 348
    , 350
    (1982). “The revocation of the suspended sentence ‘must be based on reasonable cause,’ and
    must be based upon cause that occurred within the suspension or probation period.” Bailey v.
    Commonwealth, 
    19 Va. App. 355
    , 357, 
    451 S.E.2d 686
    , 687 (1994) (quoting Patterson v.
    Commonwealth, 
    12 Va. App. 1046
    , 1048, 
    407 S.E.2d 43
    , 44 (1991)).
    At the conclusion of the April 27, 2013 revocation hearing, appellant exercised his right
    of allocution. Following appellant’s allocution, the trial court told appellant, “let me tell you
    what we’re going to do and why.” The trial court stated:
    There’s no further point in supervised probation in your case. So
    the remaining question is do we invoke the entire two years and six
    months [remaining from the 2003 conviction], or do we invoke
    only a part of it, or if we do invoke it all, do we run any of it
    concurrent with any other sentences? That’s really the issue before
    the [c]ourt. And the [c]ourt will be direct with you, Mr. Carter, we
    never hesitate to invoke only a portion of sentences. We often run
    all or some portions of sentences concurrent with other sentences,
    but in your case, [number one], your original conviction was
    assaulting a police officer. That’s a serious crime of violence that
    the [c]ourt has to give consideration to. This probation violation,
    or this violation of the [c]ourt’s prior order, involves the charge of
    distribution of cocaine. Both of those offenses, for different
    reasons, the assaulting the officer and the cocaine charge, that
    involves danger to others in the community. And in this instance it
    represents the second time you’ve violated the [c]ourt’s prior
    order. So, we don’t find that in your circumstances there would be
    any real mitigation. You need to be out of the community for an
    extended period of time so that you don’t do those kinds of things
    which have an impact on other citizens. And we don’t find the two
    years six month sentence excessive, but, in fact, we find it fair and
    appropriate for the fact of a second probation violation in a serious
    case. So we’ll simply invoke the two years and six months in its
    -7-
    entirety[, and] direct that you serve it. Supervised probation will
    be terminated.
    From the record on appeal, this Court cannot say that the trial court abused its discretion
    or lacked reasonable cause to revoke and impose the entirety of appellant’s previously suspended
    sentence.
    III. CONCLUSION
    For the foregoing reasons, we affirm the trial court’s judgment that appellant violated the
    terms and conditions of his supervised probation, a condition of his suspended sentence, when he
    was convicted of distribution of cocaine on November 15, 2012. Likewise, we affirm the trial
    court’s order revoking and imposing the entirety of appellant’s previously suspended sentence.
    Affirmed.
    -8-