Andy Lewis Ralston, s/k/a Andrew Lewis Ralston v. Commonwealth of Virginia ( 2010 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Petty and Senior Judge Bumgardner
ANDY LEWIS RALSTON, S/K/A
ANDREW LEWIS RALSTON
MEMORANDUM OPINION *
v. Record No. 1624-09-4 PER CURIAM
JUNE 8, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUTNY
William D. Hamblen, Judge
(John V. Notarianni; Velasquez & Associates, on brief), for
appellant. Appellant submitting on brief.
(Kenneth T. Cuccinelli, II, Attorney General; Alice T. Armstrong,
Assistant Attorney General II, on brief), for appellee. Appellee
submitting on brief.
Andy Lewis Ralston argues the trial court erred in finding that he violated the terms and
conditions of his probation and in revoking a previously suspended sentence. Ralston contends he
was already punished for noncompliance with the court-ordered substance abuse program, the
Fairfax County charges were pending at the time of the revocation hearing, and the new Prince
William County charges occurred after the expiration of his probation period. We disagree and
affirm.
On February 1, 2001, the trial court sentenced Ralston to three years, with two years
suspended, for driving after having been declared an habitual offender. The trial court conditioned
the suspended sentence on several conditions, including the successful completion of a substance
abuse program under the supervision of his probation officer. On December 9, 2008, Ralston’s
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
probation officer requested a show cause order because Ralston tested positive for alcohol on the
last day of the court-ordered substance abuse program. The probation officer notified the trial court
that as a sanction, Ralston had to re-enter the program and successfully complete it. The trial court
issued a show cause order on December 16, 2008. According to the probation officer’s letter,
Ralston’s probation was scheduled to expire on January 2, 2009. 1
In a March 30, 2009 letter, the probation officer notified the trial court that Ralston was
charged with new offenses in Fairfax County on November 20, 2008, and charged with new
offenses in Prince William County on January 8, 2009. In a May 28, 2009 letter, the probation
officer notified the trial court that Ralston entered Alford pleas in Prince William County for
robbery, burglary, and object sexual penetration. Sentencing for the Prince William County charges
was scheduled for October 1, 2009.
At a revocation hearing on June 12, 2009, Ralston admitted he had alcohol on his breath on
the last day of the substance abuse program. Ralston stated to the trial court that he was seeking to
withdraw his Alford pleas in the Prince William County charges and that he had not been convicted
of the new Fairfax County charges. The trial court continued the revocation hearing for one week to
examine the plea Ralston entered for the Prince William County charges.
At the reconvened revocation hearing on June 19, 2009, Ralston stated that the Fairfax
County charges had not been adjudicated. Ralston also stated that since he was seeking to withdraw
his Alford plea for the Prince William County charges, those convictions were not final for purposes
of adjudicating a probation violation, which left only the allegation that he had alcohol in his system
on the last day of the substance abuse program. Based upon the content of the probation officer’s
letters, the trial court revoked the balance of the suspended sentence for the habitual offender
conviction.
1
Ralston does not argue on appeal that this expiration date was incorrect.
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After suspending a sentence, a trial court “may revoke the suspension of sentence for any
cause the court deems sufficient . . . .” Code § 19.2-306(A) (emphasis added). The trial court
“‘undoubtedly has the power to revoke [the suspension of a sentence] when the defendant has
failed to comply with the conditions of the suspension.’” Russnak v. Commonwealth, 10
Va. App. 317, 321, 392 S.E.2d 491, 493 (1990) (quoting Griffin v. Cunningham, 205 Va. 349,
354, 136 S.E.2d 840, 844 (1964)).
“When coupled with a suspended sentence, probation represents ‘an act of grace on the
part of the Commonwealth to one who has been convicted and sentenced to a term of
confinement.’” Price v. Commonwealth, 51 Va. App. 443, 448, 658 S.E.2d 700, 703 (2008)
(quoting Pierce v. Commonwealth, 48 Va. App. 660, 667, 633 S.E.2d 755, 758 (2006)).
“‘Probation is a disposition intended to reform the offender, appropriate in mitigating
circumstances or to promote the public interest. It provides an opportunity for an accused to
repent and reform, which may be withdrawn for reasonable cause, determined in the sound
discretion of the trial court.’” Holden v. Commonwealth, 26 Va. App. 403, 409-10, 494 S.E.2d
892, 895 (1998) (quoting Connelly v. Commonwealth, 14 Va. App. 888, 890, 420 S.E.2d 244,
245 (1992)).
“‘There is no requirement . . . that the suspension [of sentence] may be revoked only upon
the conviction of a subsequent criminal offense.’” Resio v. Commonwealth, 29 Va. App. 616, 622,
513 S.E.2d 892, 895 (1999) (quoting Slayton v. Commonwealth, 185 Va. 357, 365, 38 S.E.2d 479,
483 (1946)).
Ralston has failed to demonstrate that the trial court abused its discretion in revoking the
suspended sentence. Ralston conceded he violated an express term of his probation by failing to
successfully complete the substance abuse program. This conceded violation was sufficient cause
for the trial court to revoke Ralston’s probation.
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Ralston never argued to the trial court that the sanction imposed by the probation officer —
to re-enter the substance abuse program — prevented the trial court from revoking the suspended
sentence. Accordingly, he waived this argument pursuant to Rule 5A:18 and the record does not
reflect any reason to invoke the good cause or ends of justice exceptions to Rule 5A:18. The
evidence proved that Ralston was charged with additional felonies in Fairfax County, which
occurred during the probation period, but had not yet been convicted. However, there is no
requirement that a revocation be based solely on criminal convictions; it may be based upon the
condition of good behavior implicit in every order suspending a sentence. See Marshall v.
Commonwealth, 202 Va. 217, 220-21, 116 S.E.2d 270, 273-74 (1960) (affirming a probation
revocation even though the defendant was acquitted of criminal charges that occurred while he
was on probation).
Ralston also failed to argue to the trial court that the pending Prince William County charges
occurred after the probation period expired. Instead, Ralston argued to the trial court only that he
was seeking to withdraw his Alford pleas and that he had not yet been sentenced for the charges.
Accordingly, he waived this argument pursuant to Rule 5A:18 and the record does not reflect any
reason to invoke the good cause or ends of justice exceptions to Rule 5A:18. The record
nowhere identifies the dates of the offenses which led to the criminal charges filed in Prince
William County. Nothing in the record, therefore, proves these offenses necessarily occurred
after the expiration of the probationary period.
No abuse of discretion occurred in this case, and the trial court’s decision revoking the
balance of Ralston’s suspended sentence is affirmed.
Affirmed.
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