William Todd House v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Willis
Argued at Salem, Virginia
WILLIAM TODD HOUSE
MEMORANDUM OPINION * BY
v. Record No. 0654-96-3 CHIEF JUDGE NORMAN K. MOON
MAY 27, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
Donald R. Mullins, Judge
Norman Lamson for appellant.
Ruth A. Morken, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Margaret Ann B. Walker, Assistant Attorney
General, on brief), for appellee.
William Todd House appeals the revocation of his suspended
sentence. House asserts that the trial court abused its
discretion in revoking his suspended sentence on the basis of its
finding that House had failed to perform public service, a
condition of his probation. Holding that the trial court's
revocation of House's suspended sentence was based on reasonable
cause and was within the sound discretion of the trial court, we
affirm.
On March 13, 1995, House was convicted of attempting to
purchase or possess a firearm after having been convicted of a
felony. Subsequent to a hearing on April 24, 1995, House was
sentenced to five years in prison, all of which were
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
conditionally suspended. At the conclusion of the sentencing
hearing, the trial court explained the terms of the suspended
sentence to House, stating:
I'm going to sentence you to five years in
the penitentiary. And I am going to suspend
that on the normal and usual terms and
conditions of probation. One of the special
conditions will be that you get a job. A
full time job or at any time that you're not
fully employed you'll have to perform
community service. At least thirty-six hours
a week. And if you fail to do that then
you'll be in violation of your probation and
the Court will then have you serve the five
years.
(Emphasis added.) In relevant part, the final sentencing order
stated: "[t]he Court . . . does suspend the execution of the
aforesaid penitentiary sentence . . . upon the express terms and
conditions that the defendant be of good behavior . . . [and]
that he perform community service if not employed full time
. . . ."
In order to participate in the community service program, it
was necessary for House to sign a liability release form. House,
who had previously suffered a back injury and took prescription
medication for the injuries, refused to sign the waiver. House's
probation officer, H. M. Flynn, and the community service
placement director had been informed of House's condition and the
consequent limitations on his work capacity by House's physician.
Accordingly, Flynn ordered that House only be assigned to
community service positions within the range of his capabilities.
Nevertheless, Flynn reported that House told the community
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service placement director that "someone [would] be responsible
for [him] getting injured."
Flynn notified the court that House had violated the terms
of his probation by refusing to follow his probation officer's
instructions and by failing to be cooperative. Specifically,
Flynn reported House's refusal to sign the liability release form
and his statement to the community service placement director. A
revocation hearing was conducted at which House stated that he
would perform community service and that he would not "present
himself as some invalid at a work site and create problems." On
November 6, 1995, House's probation officer informed the court
that House was then performing community service. Consequently,
by written order dated November 17, 1995, the court continued
House's probation on the same terms and conditions as originally
imposed.
On December 20, 1995, House's probation officer informed the
court that:
On November 6, 1995, an update was presented
to the court by letter indicat[ing] that Mr.
House was performing community service.
However, since that letter, subject has not
performed community service due to work site
supervisors not allowing him to perform his
duties because of his attitude. Mr. House
appears to be able to talk himself out of the
community service work on the first day at
each site by complaining of illnesses or
other problems. This officer is requesting
that the Probation Violation Hearing of July
15, 1995, be rescheduled with a
recommendation of revocation.
On January 30, 1996, the trial court ordered House to show
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cause why his probation should not be revoked. Flynn testified
that during the nine months that House had been on probation he
had failed to regularly perform community service as required and
that in fact, he had only performed 165.5 total hours of service.
Flynn stated that
at each site [House] goes to he presents
himself as injured, on drugs, not able to do
the community service. For example, at the
last site, which would be the water treatment
plant, his first statements basically were do
I need to have shots before I work here? I'm
on Valium. I've been injured and that kind
of thing. And of course none of the site
supervisors will accept him.
Flynn also stated that he and the community service placement
director were aware of House's work limitations and that Flynn
had specifically instructed that House not be assigned work
outside of his physical restrictions. House testified that he
never complained about the work "on any job site" and that he
never stated that he "couldn't perform the work." House also
stated that he had worked on a variety of projects, but that
ultimately someone would "pull him out."
The trial judge found that House had violated his probation
and informed House that:
[Y]ou've been before me on this issue and you
were brought the first time because when you
were sentenced here on April 24th the first
time you appeared . . . to sign up for
community service, you told the lady there
that someone will be responsible for me
getting injured. That concerned the lady
there. And we had a little hearing about
that and you came in and you told the Court
that you were willing to work and that you
would present yourself with an attitude that
would get you through and you could complete
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your community service. Community service is
required of everybody on probation here and
you know that. You knew it when you entered
your plea. Full-time community service calls
for a hundred and seventy-three hours a
month. That's forty hours a week. A hundred
and seventy-three hours a month. You were
sentenced in April of '95. This is February
or the last of January of '96 and you've
performed a hundred and sixty-five and a half
hours. I believe you've wasted your time and
my time and chances have been exhausted. I'm
finding you guilty of violating the terms of
your probation. I'm going to revoke your
suspended sentence and have you serve it.
Code § 19.2-303 provides that a trial court "may suspend
imposition of sentence or suspend the sentence in whole or in
part and in addition may place the accused on probation under
such conditions as the court shall determine . . . ." In
addition, "[t]he court may, for any cause deemed by it sufficient
which occurred at any time within the probation period . . .
revoke the suspension of sentence and any probation . . . [and]
pronounce whatever sentence might have been originally imposed."
Code § 19.2-306; see also Patterson v. Commonwealth, 12 Va.
App. 1046, 1048, 407 S.E.2d 43, 44 (1991). The trial court's
decision to revoke must be based on reasonable cause, however,
the trial court has broad discretion in determining when
revocation is appropriate. Patterson, 12 Va. App. at 1048, 407
S.E.2d at 44. On appeal the trial court's revocation order will
be reversed only where there has been a clear abuse of
discretion. Slayton v. Commonwealth, 185 Va. 357, 367, 38 S.E.2d
479, 484 (1946).
Here, the record establishes that House understood that he
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was to perform community service when he was not working and that
during the nine months that he was on probation, he completed
only 165.5 total hours of service. The record reflects that
House was employed fixing small engines, but no evidence was
introduced regarding how many hours a week House was employed nor
how long House was employed. Ultimately, the record is only
sufficient to prove that House performed 165.5 hours of community
service, an amount constituting slightly less than one month of
full-time community service.
Further, House's assertion that the trial court's order was
ambiguous because it failed to specify the amount of community
service to be performed is unsupported by the evidence. The
trial judge's order from the bench specified thirty-six hours of
service. The court's written order reiterated the court's intent
that House "perform community service if not employed full time."
That the written order did not restate the thirty-six hour
requirement does not make the order any less binding on House.
As we have noted,
generally a court speaks through its written
orders. . . . However, where the record
clearly establishes what was intended, we
must give force and effect to that intent
rather than rely solely on precise and
technical wording of the court's written
order.
Guba v. Commonwealth, 9 Va. App. 114, 118, 383 S.E.2d 764, 767
(1989). House stated that he understood the conditions of his
suspended sentence and that he was "prepared to accept" the
conditions imposed. Assuming, arguendo, that House believed that
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he was to be employed at least thirty-six hours a week, and if
not so employed, to perform community service, the record
reflects that House failed to do even this. The evidence
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suggests that there were numerous weeks in which House neither
worked full time, nor performed any amount of community service.
The record also establishes that House was responsible for
the difficulty he experienced in retaining those community
service positions offered to him. Flynn testified that both he
and the community service placement director were aware of
House's physical limitations. The record establishes that House
was repeatedly offered positions which required work within the
parameters of his physical abilities. However, when House was
interviewed for the various positions offered, he would present
himself as "on drugs," injured, and generally unsuited for work.
Through these representations, he raised sufficient concern
among the supervisors interviewing him to assure his rejection.
House's testimony that he did not refuse the work offered and his
assertions that he was "pulled out" of the positions where he was
employed, need not have been accepted by the trial court. The
credibility of witnesses and the weight to be accorded their
testimony are matters for the trial court to decide. Slayton,
185 Va. at 367, 38 S.E.2d at 484.
Finding that the trial court's revocation of House's
suspended sentence was reasonably based on House's failure to
complete sufficient public service, we hold that the trial court
did not abuse its discretion, and accordingly, we affirm.
Affirmed.
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