Michael Sean Green v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Malveaux and Senior Judge Annunziata
Argued at Alexandria, Virginia
PUBLISHED
MICHAEL SEAN GREEN
OPINION BY
v. Record No. 1338-17-4 JUDGE WILLIAM G. PETTY
JULY 17, 2018
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
Victoria A.B. Willis, Judge
Brian Carrico, Assistant Public Defender, for appellant.
Leah A. Darron, Senior Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
In 2017, Michael Sean Green was found in violation of the conditions of his suspended
sentence on a 1993 arson conviction. The trial court revoked his nine-year suspended sentence.
On appeal, Green argues that the “[t]rial [c]ourt erred in finding that it had jurisdiction to revoke
Green’s nine year suspended sentence relating to his 1993 arson conviction because that 10-year
period of suspension had expired.” For the reasons stated below, we agree and reverse the
judgment of the trial court.
BACKGROUND
“On appeal, we review the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible therefrom.” Wells v. Commonwealth, 65
Va. App. 722, 725, 781 S.E.2d 362, 364 (2016) (quoting Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987)).
On December 14, 1993, Green pleaded guilty to one count of felony arson pursuant to
Code § 18.2-81. The trial court sentenced Green to ten years of confinement with nine years
suspended “on the condition that the defendant keep the peace and be of good behavior and
violate no criminal laws of the Commonwealth or of any other jurisdiction of the United States
for a period of ten (10) years.” The trial court further conditioned that “[u]pon the defendant’s
release from confinement, he is to be placed on active supervised probation under the Probation
Officer of this [c]ourt for the term of suspension for a period of time deemed appropriate by the
[c]ourt.” Green was also required to pay restitution, court costs, and attorney’s fees.
Prior to his release from confinement on the arson conviction, Green was convicted of
unrelated offenses that he committed prior to December 14, 1993. Green was sentenced to a
total of fifty-four years in prison. Green was eligible for parole, however, and was released from
incarceration on November 7, 2014. He was on concurrent parole supervision for the unrelated
offenses and supervised probation for the arson conviction. On June 8, 2015, a capias for
violation of a probation order was issued for Green’s arrest. The major violation report
regarding his probation alleged that Green was in violation of his probation for events that
occurred in May of 2015. The report alleged that he failed to report to his probation officer that
he was charged with reckless driving, he admitted to being in possession of prohibited sexual
video content, and he absconded.
Green was arrested, and he moved to dismiss the violation pursuant to Code § 19.2-306.
The trial court denied Green’s motion and ordered him to serve the remaining nine years of his
suspended sentence on the arson conviction.
ANALYSIS
Green argues that the period of suspension on his arson conviction expired in 2003, when
his period of good behavior concluded. Accordingly, Green argues that the trial court lacked
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jurisdiction to revoke and impose the previously suspended portion of his sentence for violations
that occurred after his release from prison in 2014.1 We agree.
Generally, “[a]bsent an abuse of discretion, [this Court] will not reverse a trial court’s
revocation of a suspended sentence under Code § 19.2-306.” Leitao v. Commonwealth, 39
Va. App. 435, 438, 573 S.E.2d 317, 319 (2002). However, the “authority of the trial court to
revoke [an] appellant’s suspended sentence is one of statutory interpretation and presents a pure
question of law, which this Court reviews de novo.” Wilson v. Commonwealth, 67 Va. App. 82,
88-89, 793 S.E.2d 15, 18 (2016) (alterations in original) (emphasis added) (quoting Hodgins v.
Commonwealth, 61 Va. App. 102, 107, 733 S.E.2d 678, 680 (2012)).
Code § 19.2-303 provides, in pertinent part: “After conviction . . . the court may suspend
imposition of sentence or suspend the sentence in whole or part and in addition may place the
defendant on probation under such conditions as the court shall determine . . . .”
Code § 19.2-306 provides, in pertinent part:
A. In any case in which the court has suspended the
execution or imposition of sentence, the court may revoke the
suspension of sentence for any cause the court deems sufficient
that occurred at any time within the probation period, or within the
period of suspension fixed by the court. If neither a probation
period nor a period of suspension was fixed by the court, then the
court may revoke the suspension for any cause the court deems
sufficient that occurred within the maximum period for which the
defendant might originally have been sentenced to be imprisoned.
....
C. If the court, after hearing, finds good cause to believe
that the defendant has violated the terms of suspension, then: (i) if
the court originally suspended the imposition of sentence, the court
shall revoke the suspension, and the court may pronounce
1
By jurisdiction we assume Green is referring to the concept that “other conditions of
fact must exist which are demanded by the unwritten or statute law as the prerequisites of the
authority of the court to proceed to judgment or decree.” Porter v. Commonwealth, 276 Va. 203,
228, 661 S.E.2d 415, 426 (2008) (quoting Farant Inv. Corp. v. Francis, 138 Va. 417, 427-28, 122
S.E. 141, 144 (1924)).
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whatever sentence might have been originally imposed or (ii) if the
court originally suspended the execution of the sentence, the court
shall revoke the suspension and the original sentence shall be in
full force and effect. The court may again suspend all or any part
of this sentence and may place the defendant upon terms and
conditions or probation.
Furthermore, “[b]ecause probation depends for enforceability upon the existence of a
term of sentence suspension, the duration of . . . probation cannot extend beyond . . . the
specified period of suspension.” Hartless v. Commonwealth, 29 Va. App. 172, 175, 510 S.E.2d
738, 740 (1999). Finally, a sentence is suspended “from the moment following its
pronouncement.” Coffey v. Commonwealth, 209 Va. 760, 763, 167 S.E.2d 343, 345 (1969).
Here, on December 14, 1993, the trial court suspended nine years of Green’s ten-year
sentence for ten years on condition that Green be of good behavior for those ten years. That
ten-year period of suspension period began from the moment of its pronouncement, December
14, 1993, and expired ten years later, on December 14, 2003.
The Commonwealth argues the trial court had authority to revoke the suspended sentence
in 2017 because the order provided that the period of supervised probation did not commence
until Green was released from incarceration, which did not occur until 2014. However, Code
§ 19.2-306 contains no provision that would toll the period of suspension while Green was
incarcerated for unrelated offenses that occurred prior to the commencement of the period of
suspension.2 And, as we have noted above, the period of probation cannot exceed the period of
suspension. See Hartless, 29 Va. App. at 175, 510 S.E.2d at 740. Accordingly, after December
14, 2003, the trial court no longer had authority to revoke Green’s previously-suspended
2
But see Rease v. Commonwealth, 227 Va. 289, 316 S.E.2d 148 (1984), decided under
Code § 19.2-306 prior to the enactment of the 2002 amendments, which held that where an
individual on probation commits a new crime during the period of probation and is arrested by a
foreign jurisdiction beyond the reach of the trial court, the one-year time constraint of Code
§ 19.2-306 is suspended.
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sentence. Thus, the trial court erred in revoking that suspended sentence for events that occurred
in 2015.
CONCLUSION
For the foregoing reason, the decision of the trial court is reversed.
Reversed and dismissed.
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