Dejuan Hodgins v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Beales and Senior Judge Willis
PUBLISHED

Argued by teleconference

DEJUAN HODGINS
OPINION BY
v. Record No. 0899-11-3 JUDGE RANDOLPH A. BEALES
NOVEMBER 6, 2012
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
James V. Lane, Judge

Bruce D. Albertson for appellant.

Steven A. Witmer, Senior Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.

Dejuan Hodgins (appellant) argues that the Circuit Court of Rockingham County (the

trial court) “did not have jurisdiction to revoke” his suspended sentence on April 6, 2011 because

he “had not begun his probation and had not begun the suspended portion of his sentence” when

he committed new criminal offenses that served as the basis for the April 6, 2011 order of

revocation. For the following reasons, we disagree with appellant’s argument and affirm the trial

court’s revocation of appellant’s suspended sentence.

I. BACKGROUND

Appellant was sentenced by the trial court on December 9, 1998 for the following

convictions: eight counts of forgery, one count of credit card theft, and one count of uttering.

Appellant was sentenced to one year of imprisonment for each of the eight counts of forgery for

a total of eight years imprisonment – with six of those eight years suspended (and four years of

probation). For the one count of credit card theft, appellant was sentenced to one year of
imprisonment, all of which was suspended. For the one count of uttering, appellant was

sentenced to one year of imprisonment, all of which was suspended.

On May 7, 1999 he was again sentenced by the trial court on two new counts of uttering

– for which he was sentenced to three years of imprisonment for each count of uttering – for a

total of six years of imprisonment, which were all suspended. Thus, appellant then had a total of

14 years of suspended time.

Appellant was found in violation of the terms of his probation on August 30, 2002,

November 15, 2002 and September 5, 2008. Concerning the September 2008 probation

violation, the sentencing summary from the trial court’s September 22, 2008 order states that the

total sentence revoked at that time from the 1998 convictions was eight years – with a two-year

active sentence imposed and the remaining six years suspended. 1

Appellant was actually authorized to participate in a work release program during the

active portion of this sentence. 2 While serving on work release, appellant was charged and later

convicted in the Circuit Court of Augusta County with forgery and with uttering.

Appellant’s probation officer wrote a letter on June 8, 2010 to the Rockingham County

Commonwealth’s Attorney requesting that a violation hearing be scheduled due to his arrest on

new felony offenses that occurred while appellant was incarcerated and on work release. On

June 23, 2010, the Circuit Court of Rockingham County issued a capias for appellant’s arrest,

and appellant was arrested on January 5, 2011. The hearing was continued until March 8, 2011.

1
Specifically, the trial court ordered: “The execution of the one (1) year sentence
revoked under the Indictments, Docket nos. 20730, 20740, 20742, 20747, 20753, and 20906 are
resuspended and the defendant is recommitted to supervised probation, upon his release.”
2
The trial court entered an order on March 23, 2009, nunc pro tunc to September 22,
2008, which allowed appellant to participate in a work release program during the active portion
of this sentence.
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Arguments were presented on March 8, March 15, and April 1. Appellant argued at the March 8

hearing:

The reason for my motion to strike is he wasn’t at that point serving his
suspended sentence, so the condition of good behavior of the suspended
sentence was not applicable. And he was not on probation. Again, he
was on the active portion of his sentence when this occurred. My
argument to the Court is that the Court can’t revoke his suspended
sentence which he’s not yet started. The Court can’t revoke for a
probation period that he has not yet started. Really at this point he has to
be punished for the underlying charge, which he has been, and the
facility can determine not to give him good time credit. So I’d argue that
there is nothing to be revoked at this stage.

The Commonwealth’s attorney argued in response:

I would say though that implicit in the Court’s order as far as the
disposition of the original cases and any consideration for his probation
would be a term of good behavior for the entire time, and that began the
moment that the Court issued its original order in the matter.
Mr. Hodgins has been afforded several opportunities as this series of
cases has progressed. This would be his fourth probation violation and
we feel like that while on his work release and during his work release
privileges committing these new offenses certainly warrants the Court
taking a look at a violation of his probation.

In a March 16, 2011 letter opinion, the trial court judge denied appellant’s motion to

strike, and found that Code §19.2-306 gave him the authority to revoke the remaining six years

of appellant’s previously suspended sentence. The letter opinion reads in pertinent part:

Virginia Code Section 19.2-306 states that “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.” Since the Court re-suspended 20730,
20740, 20742, 20747, 20753, and 20906 [all referencing the 1998
convictions] in its Re-supension Order dated September 22, 2008 for a
period of two years supervised probation upon Defendant’s release, these
offenses remain subject to revocation as of the offense date June 8, 2010.
See Keene v. Commonwealth 2003 Va. App. LEXIS 679. Therefore,
this Court retains jurisdiction and may revoke the suspended time
remaining on 20730, 20740, 20742, 20747, 20753, and 20906.

On April 6, 2011, the trial court entered its revocation order. It is from this order that

appellant now appeals. The April 6, 2011 order states: “After hearing further evidence and
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arguments of counsel, the Court revoked one (1) of the suspension of the following offenses, for

a total of six (6) years revoked.” This order concludes with a sentencing summary, indicating

that the total sentence imposed is six years, the total sentence suspended is “none,” and the total

sentence to serve in active incarceration is six years.

II. ANALYSIS

On appeal, appellant’s argument requires that this Court examine the terms of the

September 22, 2008 order, and the trial court’s authority to revoke appellant’s suspended

sentence under Code § 19.2-306, which states:

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.

(Emphasis added).

The question of the authority of the trial court to revoke appellant’s suspended sentence is

one of statutory interpretation and presents a pure question of law, which this Court reviews de

novo. Booker v. Commonwealth, 60 Va. App. 35, 42, 723 S.E.2d 621, 624 (2012) (citing

Kozmina v. Commonwealth, 281 Va. 347, 349, 706 S.E.2d 860, 862 (2011)).

Appellant argues that the trial court’s finding that appellant violated his supervised

probation (see March 16, 2011 letter opinion and the April 6, 2011 order) was limited by the

terms of the September 22, 2008 order, which he interprets as only putting appellant on a period

of suspension and supervised probation “upon his release.” (Emphasis added). Appellant

emphasizes the fact that he was serving the active portion of his sentence when he committed the

offenses that instituted the violation proceeding, which resulted in the April 6, 2011 revocation

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order from which this appeal arose. Appellant argues that, under the trial court’s order entered

on September 22, 2008, he only would begin his suspended sentence and probation “upon his

release,” and, therefore, would not fall “within the period of suspension fixed by the court”

under Code § 19.2-306. (Emphasis added). The September 22, 2008 order states: “The

execution of the one (1) year sentence revoked under the Indictments, Docket nos. 20730, 20740,

20742, 20747, 20753, and 20906 are resuspended and the defendant is recommitted to supervised

probation, upon his release.” Based on appellant’s reading of the trial court’s September 22,

2008 order, he asserts that Code § 19.2-306 did not authorize any revocation of a suspended

sentence while appellant was solely serving an active sentence. Accordingly, appellant argues

that, because he had not been released from incarceration as of the date of his offenses that

prompted the revocation on April 6, 2011, the trial court did not have authority under Code

§ 19.2-306 to revoke the suspended sentence or find a violation of the terms of probation – both

of which, he claims, had not yet begun.

The trial court already considered this argument when it heard it at the hearing which

began on March 8, 2011, and implicitly rejected it in its March 16, 2011 letter opinion. 3 “A

court speaks through its orders and those orders are presumed to accurately reflect what

transpired.” McBride v. Commonwealth, 24 Va. App. 30, 35, 480 S.E.2d 126, 128 (1997). Trial

3
The March 16, 2011 letter opinion reads in pertinent part:

J.W. Wyne Excavating, Inc., 260 Va. 137, 144, 530 S.E.2d 148, 152 (2000). When examining a

lower court’s order on appeal, we “give deference to the interpretation adopted by the lower

court.” Id.

Thus, we defer to the trial court’s interpretation of its own orders. We presume it knew

what it meant in its sentencing summary of the September 22, 2008 order that states the total

sentence imposed was eight years, the total sentence suspended was six years, and the total

sentence to serve was two years. Significantly, the sentencing summary of the September 22,

2008 order does not state that the suspended sentence was conditioned “upon release.” We also

presume that the trial court knew what it meant in its sentencing summary of the April 6, 2011

order, indicating that the total sentence imposed is six years, the total sentence suspended is

“none,” and the total sentence to serve is six years. Based on the sentencing summary of the

April 6, 2011 order, it is clear that the trial court intended to revoke the six-year suspended

sentence that it had referenced in its September 22, 2008 order.

When read in their proper contexts, these sentencing summaries are clear. A plain

reading of these sentencing summaries shows that the trial court intended to give appellant

another chance on September 22, 2008, when it decided to re-suspend six years of the available

eight-year suspended sentence still remaining from the December 1998 convictions. On April 6,

2011, the trial court then exercised its discretion to revoke the remaining six-year suspended

sentence from these December 1998 convictions – after appellant was yet again found to have

engaged in criminal activity.

Moreover, probationary statutes “obviously confer upon trial courts ‘wide latitude’ and

much ‘discretion in matters of suspension and probation . . . to provide a remedial tool . . . in the

rehabilitation of criminals’ and, to that end, ‘should be liberally construed.” Wright v.

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Commonwealth, 32 Va. App. 148, 151, 526 S.E.2d 784, 786 (2000); see Coffey v.

Commonwealth, 209 Va. 760, 762, 167 S.E.2d 343, 345 (1969) (probation is the opportunity the

court offers a defendant to repent and reform).

Here, appellant was convicted of numerous crimes, came before the trial court repeatedly

for violations of his probation, and was repeatedly given the opportunity to correct his behavior.

Appellant chose not to do so. After more than ten years of the trial court’s giving appellant

multiple chances to reform his behavior, appellant was brought back before the trial court yet

again with new convictions for crimes of moral turpitude, which were crimes very similar to his

underlying criminal offenses. At the final revocation hearing on April 1, 2011, the trial court

judge noted:

[T]his is a case that has a very long history. It goes back to I
believe 1998. There have been numerous attempts to move
forward in the case. It’s unfortunate, of course, that Mr. Hodgins
is not taking advantage of those opportunities. There comes a
point when you have a matter that is this old that I don’t see a light
at the end of the tunnel here.

Consequently, the trial court concluded that appellant was not a good candidate for reformation

through additional probation, and in its April 6, 2011 order, it revoked the remaining six years of

appellant’s suspended sentence for the convictions imposed in 1998. It is common sense that,

when a defendant commits crimes while he or she is serving an active sentence – whether

actually incarcerated or, as in this case, while on work release – the defendant may be disciplined

through internal procedures in the prison, by criminal prosecution for those new crimes, and

through the appropriate revocation of a suspended sentence that may still exist for that defendant.

Appellant argues that good behavior is not required when serving the active portion of a

sentence – but instead that the requirement of good behavior only starts upon release. However,

the Supreme Court of Virginia has made clear that “the condition of good behavior is implicit in

every order suspending sentence,” and that implicit condition attaches ‘“from the moment
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following [the] pronouncement’” of a suspended sentence. Collins v. Commonwealth, 269 Va.

141, 146, 607 S.E.2d 719, 721 (2005) (quoting Coffey, 209 Va. at 762-63, 167 S.E.2d at

344-45). In addition, a condition of good behavior is implicit in every order suspending a

sentence, “whether expressly so stated or not.” Coffey, 209 Va. at 763, 167 S.E.2d at 345. Here,

the trial court had ordered a six-year re-suspended sentence for the 1998 convictions, as the

sentencing summary of the September 22, 2008 order reflects.

Accordingly, the trial court here revoked appellant’s suspended sentence “within the

period of suspension fixed by the court” under Code § 19.2-306. Because appellant’s six-year

suspended sentence was in effect from the time it was pronounced in September 2008, and

because, as the Supreme Court stated in Collins, a condition of good behavior attached to that

suspension from the moment of pronouncement, we hold that the trial court had the authority

under Code § 19.2-306 to revoke appellant’s suspended sentence for misconduct that occurred

while he was serving time on work release. This holding is also consistent with the Supreme

Court’s holding that the “revocation of a suspended sentence lies in the discretion of the trial

court and that this discretion is quite broad.” Peyton v. Commonwealth, 268 Va. 503, 508, 604

S.E.2d 17, 19 (2004).

Further, if appellant’s argument on appeal is taken to its logical conclusion, the result

would essentially be to shield defendants who commit new crimes while actually incarcerated

from the consequences of ever having any suspended sentences they also had incurred from

being revoked because of their new crimes. This result is certainly contrary to the General

Assembly’s intent expressed in Code § 19.2-306. If trial courts cannot revoke suspended

sentences of defendants who are serving active time, as appellant suggests, then those defendants

are free to commit crimes while incarcerated without the consequence of revocation – regardless

of the severity or frequency of those newly committed crimes. ‘“[A] statute should never be

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construed so that it leads to absurd results.”’ Auer v. Commonwealth, 46 Va. App. 637, 651, 621

S.E.2d 140, 147 (2005) (quoting Branch v. Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d

422, 424 (1992)).

The trial court here was appropriately exercising its broad discretion in revoking

appellant’s suspended sentence under Code § 19.2-306 after appellant repeatedly committed

crimes, squandering his multiple opportunities to reform.

III. CONCLUSION

Code § 19.2-306 permitted the trial court, in the exercise of its discretion, to revoke

appellant’s suspended sentence when appellant again failed to be of good behavior. Therefore,

for the foregoing reasons, we affirm the trial court’s revocation of appellant’s suspended

sentence.

Affirmed.

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