Garfield B. Johnson v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bray
Argued at Richmond, Virginia
GARFIELD B. JOHNSON
MEMORANDUM OPINION * BY
v. Record No. 1655-97-2 JUDGE JAMES W. BENTON, JR.
DECEMBER 15, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE EDWARD COUNTY
Richard S. Blanton, Judge
Michael J. Brickhill for appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
This appeal arises from a proceeding commenced after
Garfield Johnson pled guilty on March 17, 1997 to possessing with
the intent to distribute cocaine. Before the trial judge
sentenced Johnson pursuant to that plea, Johnson moved to
withdraw his guilty plea. The trial judge denied Johnson's
motion to withdraw his plea, found him guilty, and sentenced him
to prison. Johnson's appeal from that conviction order has been
affirmed by this Court today in Johnson v. Commonwealth, Record
No. 1587-97-2.
After the trial judge sentenced Johnson pursuant to
Johnson's March 17, 1997 guilty plea, the trial judge revoked two
previously suspended sentences resulting from Johnson's
convictions in 1996. On this appeal, Johnson contends that the
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
trial judge erred in revoking the previously suspended sentences.
For the reasons that follow, we affirm the judgment.
I.
In 1996, Garfield Johnson pled guilty to possessing with the
intent to distribute cocaine, see Code § 18.2-248, and possession
of a firearm while in possession of cocaine, see Code
§ 18.2-308.4. The trial judge found Johnson guilty of both
charges and sentenced him to five years in prison for the cocaine
offense, with three years and eight months suspended, and to five
years in prison on the firearms offense, with all five years
suspended. The suspended sentences were conditioned on Johnson's
"be[ing] of good behavior for a period of ten (10) years from the
date of his release from incarceration . . . [and] pay[ing] all
court costs." The trial judge also "placed [Johnson] on
supervised probation . . . for a period of ten (10) years from
the date of his release from incarceration."
Four months after Johnson was released from prison, he was
again arrested and pled guilty on March 17, 1997 to possessing
with the intent to distribute cocaine. After the trial judge
denied Johnson's motion to withdraw his guilty plea, the trial
judge sentenced Johnson to a term of years in prison. The trial
judge then revoked the eight years and eight months that had been
suspended from Johnson's 1996 convictions.
II.
A trial judge "may, for any cause deemed by [him or her]
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sufficient which occurred at any time within the probation
period, . . . revoke the suspension of sentence." Code
§ 19.2-306. "The question of whether to revoke the suspension of
a sentence lies within the sound discretion of the trial
[judge]." Singleton v. Commonwealth, 11 Va. App. 575, 580, 400
S.E.2d 205, 208 (1991). Absent "a clear showing of abuse of
discretion," we will not disturb the decision of the trial judge.
Davis v. Commonwealth, 12 Va. App. 81, 86, 402 S.E.2d 684, 687
(1991).
A panel of this Court today affirmed Johnson's 1997
conviction for possessing with the intent to distribute cocaine.
See Johnson v. Commonwealth, Record No. 1587-97-2. Therefore,
the record clearly establishes that Johnson's conduct "during the
probationary period was inconsistent with the terms and
conditions of the probation and evidenced h[is] unwillingness to
avail h[im]self of the opportunity afforded by the court. Under
such circumstances, the judgment of the trial [judge] clearly
constituted no abuse of discretion." Connelly v. Commonwealth,
14 Va. App. 888, 890, 420 S.E.2d 244, 245 (1992). See also
Patterson v. Commonwealth, 12 Va. App. 1046, 1049, 407 S.E.2d 43,
45 (1991) ("The appeal of the underlying conviction will
determine the outcome of the appeal of the revocation
proceeding.").
Accordingly, we affirm the trial judge's decision.
Affirmed.
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