Bernard Vernon West v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and McCullough
UNPUBLISHED
Argued at Alexandria, Virginia
BERNARD VERNON WEST
MEMORANDUM OPINION* BY
v. Record No. 0025-14-4 JUDGE STEPHEN R. McCULLOUGH
FEBRUARY 10, 2015
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Daniel S. Fiore, II, Judge
Allison H. Carpenter, Senior Assistant Public Defender (Matthew T.
Foley, Public Defender; Office of the Public Defender, on briefs), for
appellant.
Aaron J. Campbell, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Bernard Vernon West challenges the trial court’s revocation of his suspended sentence on
several grounds. For the following reasons, we affirm the judgment of the trial court.
BACKGROUND
Appellant pled guilty to three charges of credit card theft, and on October 3, 2006, the
trial court sentenced him to three concurrent terms of four years’ incarceration with two years
and eight months suspended. The court also ordered him to submit to supervised probation for
four years upon release from incarceration.
Appellant was released from prison on October 11, 2007. On July 10, 2009, his
probation officer requested that the court issue a bench warrant for failing to comply with several
conditions of probation. By order dated December 3, 2009, the court found him guilty of
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
violating the terms of his probation and imposed sixty days of his suspended sentence. The order
specifies that “the Defendant’s probation be extended for a period of one (1) year,” but it did not
state that the court was re-suspending the balance of his suspended sentence.
On October 20, 2011, appellant’s probation officer informed the court that appellant
failed to pay his court costs. The officer requested that the court schedule a show cause hearing,
and one was scheduled for June 29, 2012. On June 22, 2012, the probation office informed the
court that appellant had been convicted of new crimes in Washington, D.C. On July 26, 2012,
the court entered an order in connection with appellant’s court costs. Appellant had asked the
court to allow him to perform community service hours in lieu of paying court costs. The court
granted the motion and extended appellant’s probation to June 21, 2013. The court continued the
show cause hearing to September 21, 2012.
On September 18, 2012, the probation office informed the court that appellant had been
sentenced on his drug-related offenses in Washington, D.C. In an addendum dated October 24,
2013, the probation office noted that appellant had also been convicted of attempted armed
robbery on January 10, 2013, in Anne Arundel County, Maryland. By order dated December 2,
2013, the court found appellant guilty of violating the terms of his probation and imposed “the
balance of the time previously suspended.” The court denied appellant’s motion to reconsider
his sentence.
ANALYSIS
We review de novo the trial court’s authority to revoke a suspended sentence. Hodgins v.
Commonwealth, 61 Va. App. 102, 107, 733 S.E.2d 678, 680 (2012). Appellant assigns two
errors to the judgment below:
I. The trial court erred in finding West in violation of his probation
because the period of his sentence suspension ended in October
2011, before his alleged general good behavior violations occurred,
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and the trial court accordingly lacked jurisdiction to revoke his
probation.
II. The trial court erred in finding West in violation of his
probation because the trial court lacked the authority to extend
West’s probation in November 2009, and it accordingly lacked
jurisdiction to revoke his probation.
On October 3, 2006, the trial court sentenced appellant to serve three concurrent
sentences of four years in prison with two years and eight months suspended. The court also
placed him on probation for a four-year period, which was to commence upon his release from
incarceration. Appellant was released from incarceration on October 11, 2007. The parties
agree that, without an extension, his suspended sentence would have expired on October 11,
2011. There is no dispute that the trial court had jurisdiction to revoke all or part of his
suspended sentence on December 3, 2009. The parties disagree over what the court actually did
in its December 3, 2009 order. In particular, the parties disagree over the consequence of the
trial court’s failure in that order expressly to re-suspend the previously suspended sentence.
Appellant argues that trial courts speak through their written orders and that the trial
court’s failure to expressly re-suspend the remaining balance of his suspended sentence in the
order means that the suspended sentence expired long before the trial court entered an order
revoking the balance of appellant’s suspended sentence. He further contends that a period of
probation is distinct from the period under which a sentence is suspended. Accordingly, he
argues, merely extending the period of probation does not extend the time for which the sentence
remains suspended.1
Our resolution of this issue is controlled by Leitao v. Commonwealth, 39 Va. App. 435,
573 S.E.2d 317 (2002), and Jacobs v. Commonwealth, 61 Va. App. 529, 738 S.E.2d 519 (2013).
1
In light of our conclusion, we find it unnecessary to address arguments whether
appellant has (impermissibly) collaterally attacked the December 3, 2009 order.
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Following a probation violation, the trial court in Leitao revoked the defendant’s suspended
sentence and probation, ordered him to serve one year of the original sentence, and placed him
on probation for two years upon his release. 39 Va. App. at 437, 573 S.E.2d at 318. As in the
present case, the trial court’s order did not expressly re-suspend the balance of the defendant’s
sentence. Id. at 437 n.1, 438, 573 S.E.2d at 318 n.1, 318-19. Several years later, when the
defendant was brought before the court for another probation violation, he argued that there was
nothing left of his suspended sentence for the court to revoke. Id. at 437-38, 573 S.E.2d at 318.
We disagreed, concluding that “[t]he absence of an explicit recitation re-suspending the balance
of the original sentence did not implicitly discharge the remaining sentence; it implicitly re-
suspended the balance that the defendant had not served.” Id. at 438, 573 S.E.2d at 319.
We revisited the issue in Jacobs. As in Leitao, the trial court did not expressly re-suspend
the balance of the remaining available sentence when it found the defendant guilty of violating
the terms of his probation. See Jacobs, 61 Va. App. at 532, 535, 738 S.E.2d at 520, 522. We
held that the “lack of an explicit re-suspension of the balance of the remaining sentence” did not
constitute reversible error. Id. at 535, 738 S.E.2d at 522. It was “evident that the trial court
implicitly interpreted the [earlier] revocation order in its subsequent . . . revocation order,
showing that the trial court actually intended in its [earlier] order to re-suspend the balance of the
remaining available sentence.” Id. at 535-36, 738 S.E.2d at 522. We concluded that, “[a]s in
Leitao, the trial judge here construed its revocation order in the only manner possible – given
that a trial court simply lacks any authority to ‘shorten the original suspended sentence.’” Id. at
536, 738 S.E.2d at 522 (citation omitted).
A number of important considerations drive our holdings in these cases. First, a
sentence, including a suspended sentence, that has become final remains in effect whether or not
a trial court mentions it in a subsequent order. Id. at 540, 738 S.E.2d at 524 (“It is clear that
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[w]hen a court revokes the suspension of execution of sentence, the original sentence shall be in
full force and effect.” (alteration in original) (quoting Leitao, 39 Va. App. at 438, 573 S.E.2d at
319) (internal quotation marks omitted)). It does not vanish by omission. Second, “probation
depends for enforceability upon the existence of a term of sentence suspension.” Hartless v.
Commonwealth, 29 Va. App. 172, 175, 510 S.E.2d 738, 740 (1999). Therefore, when a trial
court imposes a new term of probation without expressly re-suspending the balance of the
sentence, we do not assume that this act was meaningless. Instead, we presume that the trial
court intended to make the term of probation effective and that it implicitly re-suspended the
balance of the previously suspended sentence. Finally, when coupled with a suspended sentence,
probation represents “an act of grace,” Price v. Commonwealth, 51 Va. App. 443, 448, 658
S.E.2d 700, 703 (2008) (internal quotation marks and citation omitted), which allows the
criminal defendant the opportunity to “repent and reform,” Marshall v. Commonwealth, 202 Va.
217, 219, 116 S.E.2d 270, 273 (1960) (internal quotation marks and citation omitted). Probation
statutes are to “be liberally construed to provide trial courts a valuable tool for rehabilitation of
criminals.” Grant v. Commonwealth, 223 Va. 680, 684, 292 S.E.2d 348, 350 (1982).
Construing orders to provide a disincentive for reform and repentance would be inconsistent with
the overarching purpose of these statutes.
As Leitao and Jacobs make clear, the December 3, 2009 order implicitly re-suspended
any unserved portions of appellant’s suspended sentence. Furthermore, Code § 19.2-304 allows
the court to “subsequently increase or decrease the probation period” and to “revoke or modify any
condition of probation.” Under this statute, the trial court could extend appellant’s probation on
December 3, 2009, and again on July 26, 2012. Moreover, in Dunham v. Commonwealth, 59
Va. App. 634, 639 n.2, 721 S.E.2d 824, 827 n.2, aff’d, 284 Va. 511, 733 S.E.2d 660 (2012) (per
curiam), we noted that “a trial court does not err by increasing the period of suspension
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subsequent to an original sentencing order, upon revocation and resuspension of the sentence.”
See generally Wright v. Commonwealth, 32 Va. App. 148, 526 S.E.2d 784 (2000). Finally, Code
§ 19.2-306(A) provides,
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.
The trial court retained jurisdiction over the case. On December 3, 2009, and on July 26,
2012, it could extend appellant’s probation. On December 2, 2013, it could revoke the balance
of the suspended sentence for the relevant probation violations.
CONCLUSION
We affirm the judgment of the trial court.
Affirmed.
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