Nancy Anderson Johnson v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Clements
Argued at Alexandria, Virginia
NANCY ANDERSON JOHNSON
MEMORANDUM OPINION * BY
v. Record No. 0072-00-4 JUDGE JERE M. H. WILLIS, JR.
JANUARY 9, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Herman A. Whisenant, Jr., Judge
Daniel J. Morissette (DePolo & Morissette,
P.C., on brief), for appellant.
Richard B. Smith, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
On appeal from the revocation of her previously suspended
sentences, Nancy Anderson Johnson contends that because the term
of her probation had expired when she committed the predicate
violations, the trial court lacked jurisdiction to revoke her
suspended sentences. We affirm the judgment of the trial court.
I. BACKGROUND
On May 2, 1991, Johnson pleaded guilty to eight counts of
forgery, violations of Code § 18.2-172. On September 9, 1991,
she was sentenced on each of seven counts as follows:
[T]he Court sentences the defendant to
confinement in the penitentiary of the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Commonwealth for a term of three (3) years,
of which sentence the Court suspends the
execution of two (2) years thereof upon
condition the defendant keeps the peace and
is of uniform good behavior. . . .
The Court . . . ORDERS that the defendant
shall be placed on probation under the
supervision of a Probation Officer of this
Court for a period of three (3) years, such
probation to begin after the defendant's
release from any incarceration pursuant to
this or any other Order.
The sentencing court imposed the same punishment on the eighth
count, but suspended the entire three-year sentence.
On June 29, 1993, Johnson was paroled to Maryland on a
detainer for incarceration in that state.
On December 23, 1994, Johnson was released on parole from
her incarceration in Maryland. She returned to Virginia, where
she resided in Richmond on supervised probation, until her
probation was transferred to Kentucky.
On November 26, 1997, Johnson was convicted in Kentucky for
theft.
On December 9, 1999, the trial court conducted a revocation
hearing on the original forgery convictions. Johnson moved to
dismiss. She contended that the court lacked jurisdiction
because her three-year probation began when she was paroled to
Maryland on June 29, 1993, and ended on June 29, 1996, before
she committed the Kentucky crime. The trial court disagreed and
entered a revocation order as follows:
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Revocation of Suspended Sentence
- Incarceration. The Court hereby Orders
the following:
CR28803 - one (1) year imposed of the
previously suspended sentence of two
(2) years,
CR28804 - one (1) year imposed of the
previously suspended sentence of two
(2) years,
CR28805 - one (1) year imposed of the
previously suspended sentence of two
(2) years,
CR28806 - one (1) year imposed of the
previously suspended sentence of two
(2) years,
CR28807 - one (1) year imposed of the
previously suspended sentence of two
(2) years, for a total sentence of five
(5) years.
The sentences shall run consecutively and
consecutively to all other sentences.
In CR28808, 28809, and 28810, the Court
takes no action on the probation violation.
Johnson contends that the trial court lacked jurisdiction to
revoke the suspended sentences.
II. JURISDICTION
Code § 19.2-306 provides:
The court may, for any cause deemed by
it sufficient which occurred at any time
within the probation period, or if none,
within the period of suspension fixed by the
court, or if neither, within the maximum
period for which the defendant might
originally have been sentenced to be
imprisoned, revoke the suspension of
sentence and any probation, if the defendant
be on probation, and cause the defendant to
be arrested and brought before the court
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. . . within one year after the maximum
period for which the defendant might
originally have been sentenced to be
imprisoned, whereupon, in case the
imposition of sentence has been suspended,
the court may pronounce whatever sentence
might have been originally imposed.
(Emphasis added).
On September 9, 1991, the original sentencing court
suspended execution of Johnson's sentence for an unspecified
time period. Because Johnson could have received a maximum
sentence of ten years in prison for her forgery convictions, 1
Code § 19.2-306 granted the trial court authority to revoke
Johnson's suspended imposition of sentence and impose a sentence
at any time up until September 9, 2001. See Carbaugh v.
Commonwealth, 19 Va. App. 119, 123-24, 449 S.E.2d 264, 266
(1994) (applying Code § 19.2-306). Therefore, the trial court
did not err in revoking Johnson's suspended sentences.
Accordingly, we affirm the judgment of the trial court.
Affirmed.
1
Forgery is a Class 5 felony. See Code § 18.2-172. The
maximum sentence available for a Class 5 felony is ten years.
See Code § 18.2-10(e).
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