Joe Earl Harrison v. Commonwealth ( 2005 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Felton and Kelsey
Argued at Richmond, Virginia
JOE EARL HARRISON
MEMORANDUM OPINION* BY
v. Record No. 0556-04-2 JUDGE WALTER S. FELTON, JR.
MARCH 22, 2005
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
Thomas V. Warren, Judge
Linda M. H. Tomlin (Fitzgerald, Tomlin & McKeen, PLLC, on
brief), for appellant.
Stephen R. McCullough, Assistant Attorney General (Jerry W.
Kilgore, Attorney General, on brief), for appellee.
On March 1, 2004, the trial court found Joe Earl Harrison (appellant) guilty of violating
the terms of his probation of his 1989 suspended sentence.1 It then revoked twelve months of his
1989 suspended sentence, and re-suspended the remaining unserved portion of that sentence. On
appeal, appellant contends that since the trial court did not impose a condition of indefinite
supervised probation at the time it entered the 1989 order, it lacked authority to modify that
sentencing order by adding that condition in January 20022 as a condition for continuing to
suspend the unserved portion of the 1989 sentence. He argues that the 1989 sentencing order
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
The record reflects that appellant was convicted on November 6, 1989 of the offense
that occurred on May 12, 1989. The trial court signed the sentencing order January 8, 1990.
Throughout the record and in all of the subsequent orders, this sentencing order is referred to as
the 1989 order. For clarity, we refer to the original sentencing order as the 1989 order.
2
The probation violation hearing was held in October 2001, but the final order was not
entered until January 2002.
was not modifiable 21 days after its entry under Rule 1:1, or the exceptions to Rule 1:1 in Code
§ 19.2-303.3 Ipso facto, he contends that the trial court lacked authority in March 2004 to find
him guilty of violation of any condition of supervised probation first imposed in its January 2002
order. For the following reasons, we affirm the judgment of the trial court.
BACKGROUND
The relevant facts and procedural posture in this case are not in dispute. On December
29, 1989 (the 1989 order), the trial court sentenced appellant to forty years imprisonment for
distributing cocaine in violation of Code § 18.2-248. Of the forty-year sentence imposed, the
trial court suspended “thirty (30) years upon the condition that the defendant keep the peace and
be of good behavior for a period of twenty-five years following his release from incarceration.”
In April 2001, subsequent to his release from incarceration from the 1989 sentence,
appellant pled guilty to felony driving after having been adjudicated an habitual offender and to two
misdemeanor counts of unauthorized use of a vehicle. For these new convictions, the trial court
sentenced appellant to five years imprisonment, with all five years suspended for ten years,
conditioned on his good behavior, his being placed on indefinite supervised probation, his eligibility
for twelve months work release, and his payment of a $200 fine and court costs. The trial court
further advised appellant that he was in violation of the conditions of his 1989 suspended sentence
and requested that a show cause be issued for that violation.
3
Code § 19.2-303 provides authority for the trial court to suspend the unserved portion of
an imposed sentence to jail, or for a felony sentence to the Department of Corrections if the
prisoner has not been transferred to the Department, more than 21 days after the entry of the
sentencing order.
Rule 1:1 of the Rules of the Supreme Court of Virginia provides that a court can modify a
final judgment only within 21 days of its entry and not thereafter.
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In October 2001, as a result of the new convictions, the trial court found appellant guilty of
“VIOLATION OF HIS PROBATION CASE # F89-110 OFFENSE DATE: MAY 12, 1989.” 4 In
its revocation order entered January 17, 2002, the trial court sentenced “the defendant to
incarceration with the Department of Corrections for a term of Two (2) Years.” The order
continued:
It is further Ordered that the defendant is placed on supervised
probation to commence on his release from incarceration, under
the supervisors [sic] of Probation Officer for an indefinite period of
time or unless sooner released by the court or by the Probation
Officer. The defendant shall comply with all the rules and
requirements set by the Probation Officer.
Appellant did not appeal, or otherwise challenge, the January 17, 2002 revocation order. It is this
sentencing order, placing appellant on indefinite supervised probation following his serving the
two-year sentence for violating the conditions of the 1989 suspended sentence, that appellant
contends is the invalid modification of the 1989 sentencing order.
4
The use of the term “probation violation” at first glance may seem confusing in that the
trial court did not use the term “probation” in its 1989 sentencing order. The trial court, at the
2001 revocation hearing and in its January 2002 order, appears to equate “probation” with “good
behavior” as distinguished from “supervised probation.” See Dyke v. Commonwealth, 193 Va.
478, 484, 69 S.E.2d 483, 486 (1952) (terms and conditions, such as good behavior, “are
probation only in the sense that they require the defendant to observe a specified course of
conduct; but they are not the supervised probation referred to in the statute”).
Black’s Law Dictionary defines “probation” as “[a] court-imposed criminal sentence that,
subject to stated conditions, releases a convicted person into the community instead of sending
the criminal to jail or prison.” Black’s Law Dictionary 1240 (8th ed. 1999). Black’s further
defines “bench probation” as “Probation in which the offender agrees to certain conditions or
restrictions and reports only to the sentencing judge rather than a probation officer.” Id.
The Virginia Supreme Court recently had occasion in Collins v. Commonwealth, 269 Va.
141, 607 S.E.2d 719 (2005), to distinguish between suspension of sentence and probation. It
noted that “[t]he concepts are distinct but overlapping, in the sense that a sentence of
confinement may be suspended without admitting the defendant to probation while a prerequisite
to probation is that any sentence of confinement be first suspended.” Id. at 145, 607 S.E.2d at
721 (discussing Code § 19.2-306). The Court “observed that the 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 . . . . ” Id. at 146, 607 S.E.2d at 721 (citing Marshall v.
Commonwealth, 202 Va. 217, 219-21, 116 S.E.2d 270, 273-74 (1960)).
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Appellant was released from the Department of Corrections in March 2003. In September
2003, appellant’s probation officer advised the trial court that appellant’s adjustment to probation
had been unsatisfactory. Appellant was charged with abduction and kidnapping, stalking, and
destruction of property5 and with violating specific conditions of his supervised probation, including
failure to report the new charges, failure to report to the probation office as directed, and change of
residence without the permission of the probation officer.
Following a hearing on February 23, 2004, the trial court again found defendant guilty of
“VIOLATION OF PROBATION CASE # F89-110 OFFENSE DATE: MAY 12, 1989.” It then
imposed a sentence of twelve months in jail from the 1989 suspended sentence. At the revocation
hearing, appellant pled not guilty to violating his probation. He argued that because the trial court
lacked authority to place him on supervised probation in its January 2002 order, he could not be
found guilty of violating that condition of his 1989 suspended sentence. The Commonwealth
acknowledged that appellant was not placed on supervised probation until entry of the January 2002
order revoking a portion of the 1989 suspended sentence.
During the 2004 probation violation proceedings that are the subject of this appeal, appellant
acknowledged that his conduct violated the terms of his supervised probation, “regardless of
whether or not it was the one dealing with the October 2001 [January 2002 revocation order] or the
April 2001 judgment of the trial court.” Nor did he challenge that at the time the trial court entered
the January 2002 revocation order, he was already on indefinite supervised probation as a condition
of the five-year suspended sentence for the April 2001 convictions. He simply argued that because
he was not lawfully placed on supervised probation in January 2002, any violation of supervised
5
These charges were subsequently nolle prossed. He was, however, found guilty of
contempt for failing to appear.
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probation would have to be based on the suspended sentence for the April 2001 convictions. The
trial court noted that:
The situation here is . . . he was sentenced in ‘89 to a term of years
suspended to 25 years. Not until 2001 when he violated the law by
those earlier convictions was he put on supervised probation. And
the Court certainly has inherent power to put a person on
supervised probation that earlier was not supervised and the
supervised probation was a lawful order of the Court . . . .
On March 1, 2004, the trial court found appellant guilty of violating his probation, revoked
twelve months of appellant’s 1989 suspended sentence and ordered him to remain on supervised
probation following his release from incarceration. Appellant appealed the judgment of the trial
court.
ANALYSIS
Appellant acknowledges that the provisions of Code § 19.2-306, in effect in 1989 and
January 2002, authorized the trial court to revoke the entire unserved portion of the 1989 suspended
sentence for “good cause shown,” but contends it could not add supervised probation as a condition
of continuing to suspend the remaining unserved portion of the 1989 sentence.6 He argues that it
was not until the 2002 amendments to Code § 19.2-306 that the General Assembly granted the trial
court authority to modify an otherwise final sentencing order to add a condition of probation, when
it revoked a previously suspended sentence.
6
Code § 19.2-306, in effect at the time of the revocation hearing in 2001 [January 2002
order], provided in pertinent part that
the court may, for any cause deemed by it sufficient which
occurred at any time within . . . the period of suspension fixed by
the court, . . . revoke the suspension of sentence . . . and cause the
defendant to be arrested and brought before the court at any
time . . . within one year after the period of suspension fixed by the
court . . . whereupon . . . the original sentence shall be in full force
and effect . . . .
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Prior to July 1, 2002, Code § 19.2-306 did not explicitly authorize a trial court to impose a
condition of supervised probation when it revoked a previously suspended sentence.7 However,
prior to the 2002 amendment to Code § 19.2-306, both the Supreme Court and this Court have
consistently noted that 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); see Briggs v. Commonwealth, 21 Va. App. 338, 344,
464 S.E.2d 512, 514 (1995). In Hartless v. Commonwealth, 29 Va. App. 172, 510 S.E.2d 738(1999), we said “[a] court’s ability to revoke the suspension of a sentence and to impose that
sentence permits it to enforce a probationary requirement as a condition of suspension.”8 Id. at 175,
510 S.E.2d at 739. Imposing supervised probation as condition of re-suspension, on a finding of
violation of the conditions of a previously suspended sentence, is consistent with the legislative goal
of assisting in the rehabilitation of those convicted of criminal offenses.
The amendments to Code § 19.2-306 in 2002 simply made explicit that which was implicit
before. Both prior to and after the 2002 amendment, revocation of a previously suspended sentence
and the imposition of all or part of that suspended sentence was a new sentencing event, restricted
only by the limitations that it could not extend the length of the original sentence nor the length of
the period of suspension and that any conditions of suspension be reasonable. See Nuckoles v.
7
The 2002 General Assembly amended Code § 19.2-306 to provide, in relevant part, “[i]f
the court, after hearing, finds good cause to believe that the defendant has violated the terms of
suspension . . . [t]he court may again suspend all or any part of its sentence and may place the
defendant upon terms and conditions or probation.” Code § 19.2-306(C).
8
In comparison, we held in Russnak v. Commonwealth, 10 Va. App. 317, 392 S.E.2d
491 (1990), that where there had been no revocation of a suspended sentence, the trial court was
without authority to modify a sentencing order, that had become final, by adding a condition of
probation. In Lamb v. Commonwealth, 40 Va. App. 52, 577 S.E.2d 530 (2003), we held that the
trial court had no authority to add post-release supervision under Code § 19.2-295.2 after
revocation of suspended sentence when that supervision was not imposed at the original
sentence.
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Commonwealth, 12 Va. App. 1083, 1086, 407 S.E.2d 355, 356 (1991); see also Robertson v.
Superintendent of the Wise Correctional Unit, 248 Va. 232, 236, 445 S.E.2d 116, 118 (1994)
(noting that Code § 19.2-306 does not give a court “authority to lengthen the period of
incarceration” once sentence imposed on the underlying charge becomes final).
Here, appellant failed to abide by the terms and conditions of his 1989 suspended sentence,
that he “keep the peace and be of good behavior.” In 2001, he was convicted of additional criminal
offenses, given an additional suspended sentence and placed on supervised probation. As a result of
those convictions, he was found to have violated his probation; that is, the terms and conditions of
the 1989 suspended sentence. Implicit in the trial court’s sentencing authority was its power to
impose the entire suspended sentence, and then to re-suspend all or a portion of the reimposed
sentence under such terms and conditions it deemed appropriate, including placing the appellant on
supervised probation.
We, therefore, conclude that the trial court did not impermissibly modify or extend the
1989 sentencing order in violation of Rule 1:1, or its exceptions in Code § 19.2-303, by placing
appellant on supervised probation as a condition of its continuing to suspend the remaining
portion of the 1989 sentence. Once the trial court found appellant had violated the terms of his
1989 suspended sentence as a result of his convictions in April 2001, nothing in the text of Code
§ 19.2-306 prevented it from imposing supervised probation as a condition of revoking only a
portion of that sentence. In imposing the condition of supervised probation, it did not
impermissibility increase the length of the sentence or the length of time the sentence was
suspended. Nor was there any claim by appellant that the terms of the probation were
unreasonable or any more restrictive than the supervised probation he received as a condition of
the suspended sentences imposed in April 2001. See Nuckoles, 12 Va. App. at 1086, 407 S.E.2d
at 356. Moreover, the condition of supervised probation provided appellant with a less harsh
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alternative to an increased period of incarceration which would have resulted had the trial court
revoked his entire remaining 1989 suspended sentence, then “in full force and effect.” See Code
§ 19.2-306.
In resentencing appellant following its revocation of the 1989 suspended sentence, the trial
court had implicit authority to continue to suspend all or a portion of the previously suspended
sentence, under such terms and conditions as it deemed appropriate, considering the remedial and
rehabilitative purposes inherent in suspending sentences. Placing appellant, a person with an
extensive criminal record, on supervised probation following his release from serving the revoked
portion of the formerly suspended sentence, was clearly a reasonable condition.
“When a trial court suspends a sentence it ‘does not make a contract with the accused, but
only extends to him the opportunity which the State affords him to repent and reform.’”
Marshall, 202 Va. at 219, 116 S.E.2d at 273 (quoting Richardson v. Commonwealth, 131 Va.
802, 810-11, 109 S.E. 460, 462 (1921)). Here, the trial court imposed the conditions it deemed
necessary for continuing to suspend part of appellant’s original sentence, putting into place the
rehabilitative goal inherent in Virginia’s sentencing laws. See Esparza v. Commonwealth, 29
Va. App. 600, 608-09, 513 S.E.2d 885, 889 (1999) (presuming the court “considered this
rehabilitative purpose when it revoked appellant’s suspended sentence and imposed a portion of
the suspended sentence”). It applied the least restrictive condition in light of appellant’s lengthy
criminal history and clear violation of the terms and conditions of his 1989 suspended sentence.
Moreover, followed to its logical conclusion, appellant’s contention that the trial court
lacked authority under Code § 19.2-306 to impose supervised probation as a condition of continuing
to suspend all or a portion of his lengthy sentence, would limit a trial court, prior to the 2002
amendment, to imposing “the original sentence . . . in full force and effect,” depriving the trial court
of any discretion to impose only a portion of the previously suspended sentence. Such a narrow
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reading of the statute would deny the trial courts the discretion over sentencing the General
Assembly intended. See Grant, 223 Va. at 684, 292 S.E.2d at 350.
We conclude that the trial court had authority in January 2002, at the time it first found
appellant to be in violation of the terms of his 1989 suspended sentence, to impose supervised
probation, following appellant’s release from serving the revoked portion of his prior suspended
sentence, as a condition of suspending the remainder of the 1989 sentence. Accordingly, when
appellant was again before the trial court in 2004 charged with violating the conditions of “keeping
the peace” and “being of good behavior” of the 1989 suspended sentence and violating the terms of
his supervised probation, the trial court did not err in revoking part of the remaining 1989 suspended
sentence. The record before us contains ample evidence that appellant violated both the terms of his
supervised probation, imposed in January 2002 and in April 2001, as well as the terms and
conditions that he “keep the peace and be of good behavior” imposed at the time of his initial
sentencing in 1989.
We hold that in January 2002, the trial court had implicit statutory authority under Code
§ 19.2-306 then in effect, to place appellant on supervised probation as a condition of re-suspending
the 1989 sentence. Accordingly, the trial court did not err in finding appellant guilty of violating
that probation in February 2004 and revoking part of his 1989 suspended sentence.
For these reasons, we affirm the judgment of the trial court.
Affirmed.
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