Clarke v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Beales and Senior Judge Bumgardner
Argued at Alexandria, Virginia

RONALD EUGENE CLARKE
OPINION BY
v. Record No. 1562-10-4 JUDGE RANDOLPH A. BEALES
MAY 15, 2012
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF STAFFORD COUNTY
Charles S. Sharp, Judge

Elizabeth Christoff Hutson, Assistant Public Defender (Office of the
Public Defender, on brief), for appellant.

Kathleen B. Martin, Senior Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.

On October 27, 2005, Ronald E. Clarke (appellant) was convicted by the trial court of

driving while a habitual offender, subsequent offense, in violation of Code § 46.2-357, and

sentenced to five years in prison. The trial court suspended three years and six months of that

sentence. On October 16, 2009, the trial judge found appellant had violated his probation,

revoked appellant’s previously suspended sentence, and resuspended two years and six months

(thereby sentencing appellant to one year of active incarceration from the originally suspended

sentence). On May 24, 2010, the same trial judge found that appellant had again violated his

probation. Accordingly, the trial judge revoked appellant’s suspended sentence and resuspended

two years (thereby sentencing appellant to another six months of active incarceration from the

originally suspended sentence). 1

1
The trial court’s May 24, 2010 order states that it “REVOKES two (2) years and six
(6) months of the previously suspended sentence on the conviction of Driving While a Habitual
 On appeal, appellant argues that the trial court erred at the May 21, 2010 revocation

hearing when it revoked appellant’s suspended sentence for behavior which occurred prior to a

“previous sentencing event.” Specifically, appellant contends that, since the trial judge was

aware at the October 16, 2009 revocation hearing that there were charges pending against

appellant in another jurisdiction, the trial judge thus subsequently lacked authority at the May 21,

2010 revocation hearing to revoke appellant’s suspended sentence because one of those pending

charges had resulted in a criminal conviction. However, for the following reasons, we affirm the

trial court’s revocation of appellant’s suspended sentence.

I. BACKGROUND

After the October 16, 2009 revocation hearing described above, on March 12, 2010,

appellant’s probation officer advised the Commonwealth’s Attorney by letter that appellant had

violated his probation by having been convicted in the Caroline County Circuit Court on March

9, 2010 of a “Habitual Offender 6th” offense. The trial court issued a show cause order for

appellant and held a revocation hearing on May 21, 2010.

At the May 21, 2010 revocation hearing, appellant argued that the Caroline County

offense could not be a ground to revoke his suspended sentence because it had been known as a

pending charge to the trial court at the revocation hearing held on October 16, 2009. 2 In support

Offender-Subsequent Offense and RE-SUSPENDS all but six (6) months.” However, the trial
judge earlier had stated from the bench that “[t]wo years and six months was previously
suspended. The Court reimposes all that time and resuspends six months. That means you’ve
got two years on this violation of probation.” A trial court is, nevertheless, presumed to speak
through its written orders, and so we are now reviewing on appeal the terms of the trial court’s
“Conviction and Sentencing Order” entered on May 24, 2010. See McMillion v. Dryvit Sys.,
262 Va. 463, 469, 552 S.E.2d 364, 367 (2001) (noting that “trial courts speak only through their
written orders and that such orders are presumed to reflect accurately what transpired”).
2
In the sentencing phase of the May 21, 2010 revocation hearing, the prosecutor
introduced, without objection from the defendant, the original letter from appellant’s probation
officer, dated August 13, 2009, which had been the basis for the October 16, 2009 revocation.

-2-
of his argument, appellant presented a letter dated October 6, 2009, from his probation officer to

the Commonwealth’s Attorney of Stafford County, which the trial court admitted into evidence

without objection. The letter stated appellant had incurred new charges, including “Habitual

Offender 6th, Driving Under the Influence, Refusal, Possession of Thc 3 2nd, and Speeding

50/35” in Caroline County on September 7, 2009, which were set for preliminary hearing on

October 9, 2009. The letter further stated: “If [Clarke] is convicted of these charges, then it

would be a violation of condition 1.” 4 By the time of this May 21, 2010 revocation hearing, one

of the Caroline County charges, the “Habitual Offender 6th” offense, resulted in a conviction. 5

The trial judge, who also presided at the October 16, 2009 revocation hearing, found that there

was no evidence to suggest the court had considered the new charges as a basis for revocation at

The letter stated that appellant had failed to maintain contact with his probation officer and had
used cocaine.
3
Although the record on appeal does not clarify precisely for what the abbreviation
“Thc” stands, it appears to refer to the substance tetrahydrocannabinol. See, e.g., Monson v.
DEA, 589 F.3d 952, 955 (8th Cir. 2009) (explaining that “cannabis plants contain
tetrahydrocannabinol (THC)”).
4
Condition 1 required appellant to “obey all federal, state and local laws and
ordinances.”
5
Even though the trial judge did not revoke appellant’s suspended sentence based on the
pending charges (instead he revoked on the basis of a conviction that resulted from one of those
charges), a trial judge may, in the exercise of his discretion, revoke a suspended sentence on the
basis of evidence of conduct that does not necessarily result in an actual criminal conviction.
See Marshall v. Commonwealth, 202 Va. 217, 220-21, 116 S.E.2d 270, 273-74 (1960) (the
Supreme Court stated that “the failure of a defendant to be of good behavior, amounting to
substantial misconduct, during the period of the suspension would provide reasonable cause for
revocation of the suspension . . .”); see also Holden v. Commonwealth, 27 Va. App. 38, 42, 497
S.E.2d 492, 494 (1998) (“Iniquitous, but not necessarily illegal, conduct [also] justifies a court’s
revocation of a suspended sentence.” (citing Bryce v. Commonwealth, 13 Va. App. 589, 591,
414 S.E.2d 417, 418 (1992))).

-3-
the October 16, 2009 hearing. 6 Specifically, the trial judge stated: “So, the Court finds that

there is no evidence to suggest that [the Caroline County charges] were considered.”

Accordingly, on May 24, 2010, the trial judge entered a written order finding that appellant again

violated the terms of his suspended sentence and revoked that sentence, resuspending all of it but

six months, which appellant was ordered to serve.

II. ANALYSIS

On appeal, appellant argues that the trial court erred at the revocation hearing on May 21,

2010 by revoking his suspended time for behavior which occurred prior to a “previous

sentencing event” – i.e., before the revocation hearing held on October 16, 2009. However, it is

clear that the trial judge did not abuse his discretion under Code § 19.2-306 in revoking

appellant’s suspended sentence. Moreover, it is plain that the trial judge simply did not consider

the Caroline County charges at the October 16, 2009 revocation hearing. Thus, under Canty v.

Commonwealth, 57 Va. App. 171, 699 S.E.2d 526 (2010), the trial judge had the “power to

revoke the suspension” at the May 21, 2010 revocation hearing, based on the “Habitual Offender

6th” charge that ultimately resulted in a conviction. Id. at 173, 699 S.E.2d at 527.

Code § 19.2-306, which governs revocation of suspension of sentence and probation,

reads 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.

* * * * * * *

6
The transcript of the October 16, 2009 revocation hearing is not a part of the record on
appeal in this case. “[T]he burden is on the appellant to present to us a sufficient record from
which we can determine whether the lower court has erred in the respect complained of.” Justis
v. Young, 202 Va. 631, 632, 119 S.E.2d 255, 256-57 (1961).

-4-
 (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 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.

(Emphasis added).

The “revocation of a suspended sentence lies in the discretion of the trial court and that

. . . discretion is quite broad.” Peyton v. Commonwealth, 268 Va. 503, 508, 604 S.E.2d 17, 19

(2004). On appeal from a revocation proceeding, the trial court’s “‘findings of fact and

judgment will not be reversed unless there is a clear showing of abuse of discretion.’” Keselica

v. Commonwealth, 34 Va. App. 31, 35, 537 S.E.2d 611, 613 (2000) (quoting Davis v.

Commonwealth, 12 Va. App. 81, 86, 402 S.E.2d 684, 687 (1991)).

Appellant argues that the trial judge abused his discretion because the October 16, 2009

probation violation hearing was a new sentencing event and the trial court was not permitted to

look back to the conduct of appellant which occurred prior to a new sentencing event.

Accordingly, appellant argues that any subsequent revocation (i.e., the one ordered on May 24,

2010) could only be based on behavior that occurred after the October 16, 2009 revocation

hearing. However, appellant complains that the offense date for his new charges occurred before

the October 16, 2009 revocation hearing – on September 7, 2009 – and, thus, should not have

been considered at the revocation hearing on May 21, 2010.

In support of this argument, appellant cites Reinke v. Commonwealth, 51 Va. App. 357,

367-68, 657 S.E.2d 805, 811 (2008), in which this Court held that the language of Code

§ 19.2-306(C)

-5-
 makes clear that revocation of a previously suspended sentence
and the resuspension of some or all of that previously suspended
sentence is a new sentencing event, restricted only by limitations
that it may not extend the length of the original sentence or the
length of the period of suspension and, as is the case with an
original suspension, that any conditions of suspension be
reasonable.

(emphasis in original). However, appellant misapplies Reinke. This Court in Reinke discussed a

“new sentencing event” in the context of acknowledging a trial court’s authority under Code

§ 19.2-306(C) to place new conditions on a resuspended sentence – an entirely different context

then that presented to us in this appeal. See id. at 367-68, 657 S.E.2d at 810-11. Thus, Reinke is

simply not on point or actually relevant to the analysis in this case.

The case law governing the situation before us is quite clear. The trial court

“‘undoubtedly has the power to revoke [the suspension of a sentence] when the defendant has

failed to comply with the conditions of the suspension.’” Russnak v. Commonwealth, 10

Va. App. 317, 321, 392 S.E.2d 491, 493 (1990) (quoting Griffin v. Cunningham, 205 Va. 349,

354, 136 S.E.2d 840, 844 (1964)). Here, appellant violated Condition 1 (which required

appellant to “obey all federal, state and local laws and ordinances”) when he was convicted in

Caroline County of “Habitual Offender 6th” and, thus, the trial judge properly revoked

appellant’s suspended sentence on that basis on May 24, 2010.

Moreover, this Court’s decision in Canty is highly persuasive on this issue. Appellant

admits that his argument may well be contrary to the current rulings of this Court and the

Supreme Court of Virginia. See Canty, 57 Va. App. at 171, 699 S.E.2d at 526. However,

appellant contends that this case is factually distinguishable from Canty. While it is true that the

facts of this case differ somewhat from those in Canty, the legal principle announced in Canty

also applies here.

-6-
 The trial court in Canty was not aware when it revoked the defendant’s suspended

sentence in October 2008 that the defendant had been found in possession of heroin the month

before, although the Commonwealth had been apprised of this fact. See Canty, 57 Va. App. at

174, 699 S.E.2d at 527. A second show cause hearing was held after Canty was convicted of the

new heroin offense, and the trial court revoked and resuspended Canty’s sentence. Id. at 174-75,

699 S.E.2d at 527-28. This Court rejected Canty’s argument that, at the second revocation

hearing, the trial court could only consider as grounds to revoke his suspended sentence the

misconduct that had occurred after the first revocation hearing. This Court held that “the trial

court had the power to revoke the suspension because though the violation committed by Canty

was before his most recent revocation hearing, the trial court had not previously considered that

conduct.” Id. at 173, 699 S.E.2d at 527 (emphasis added).

This Court explained in Canty that Code § 19.2-306 “empowered” a trial court “to revoke

a suspended sentence for misconduct occurring after the initial suspension of sentence and prior

to the expiration of the period of suspension.” Id. at 175-76, 699 S.E.2d at 528 (emphasis

added). This Court further observed that Code § 19.2-306(D) 7 precluded a trial court from

considering at a subsequent revocation hearing misconduct it had rejected as cause to revoke at a

prior hearing. Id. at 177, 699 S.E.2d at 529. This Court stated, however, that Code

§ 19.2-306(D) did not prohibit a trial court from considering conduct that was “not raised at a

7
Code § 19.2-306(D) reads:

If any court has, after hearing, found no cause to impose a sentence
that might have been originally imposed, or to revoke a suspended
sentence or probation, then any further hearing to impose a
sentence or revoke a suspended sentence or probation, based solely
on the alleged violation for which the hearing was held, shall be
barred.

(Emphasis added).

-7-
prior hearing and not previously found to be ‘no cause’ for revocation.” Id. (emphasis in

original). The Supreme Court of Virginia affirmed this Court’s opinion in Canty. See Canty v.

Commonwealth, Record No. 102221 (Va. Oct. 7, 2011) (unpublished order).

While, unlike in Canty, the trial court here was aware of appellant’s pending charges in

Caroline County (because the Commonwealth presented the trial court with the information on

the new pending charges in a letter on October 6, 2009), the trial judge clearly attached no legal

significance to the charges. In fact, he expressly did not consider them as cause to revoke.

Specifically, the trial judge, who presided at both the October 16, 2009 and May 21, 2010

revocation hearings, stated at the May 21, 2010 revocation hearing: “So, the Court finds that

there is no evidence to suggest that these items [the Caroline County charges] were considered

[at the October 16, 2009 revocation hearing].”

At the May 21, 2010 revocation hearing, the trial judge found: “It’s clear, given the

evidence before the Court then, at this point, that [appellant] has violated the terms of his

probation and I find him guilty of violating his probation.” (Emphasis added). The record

establishes that the trial court actually considered appellant’s habitual offender conduct as a

ground for revocation only at this May 21, 2010 hearing. The trial court appropriately relied on

this conviction as a basis for revoking appellant’s suspended sentence at that hearing under

Canty because, while appellant’s misconduct was committed “before [appellant’s] most recent

revocation hearing,” that misconduct was “not previously found to be ‘no cause’ for revocation.”

Canty, 57 Va. App. at 173, 177, 699 S.E.2d at 527, 529 (emphasis in original). 8

8
Appellant suggests that a trial court’s bare knowledge of a pending charge that exists at
the time of a revocation hearing per se deprives the trial court of the authority to revoke a
defendant’s suspended sentence on the basis of that conduct at a subsequent revocation hearing.
However, neither the revocation statute nor this Court’s decision in Canty supports this view.
Code § 19.2-306(D) states,

-8-
 It is appellant’s burden to provide this Court with a record from which it can decide the

issues in the case. See Commonwealth v. Williams, 262 Va. 661, 669, 553 S.E.2d 760, 764

(2001) (citing Justis, 202 Va. at 632, 119 S.E.2d at 257 (holding “on appeal the judgment of the

lower court is presumed to be correct and the burden is on the appellant to present to us a

sufficient record from which we can determine whether the lower court has erred in the respect

complained of”)). The record on appeal before this Court simply provides no basis for

concluding that the trial court considered the Caroline County charges (including the charge of

“Habitual Offender 6th” offense) as grounds to revoke appellant’s suspended sentence on

October 16, 2009. In fact, as discussed above, the trial court expressly stated at the May 21,

2010 revocation hearing that it did not consider the Caroline County charges at the October 16,

2009 revocation hearing.

Therefore, given the trial court’s broad discretion in revoking suspended sentences under

Code § 19.2-306, 9 see Peyton, 268 Va. at 508, 604 S.E.2d at 19, and the highly persuasive

If any court has, after hearing, found no cause to impose a sentence
that might have been originally imposed, or to revoke a suspended
sentence or probation, then any further hearing to impose a
sentence or revoke a suspended sentence or probation, based solely
on the alleged violation for which the hearing was held, shall be
barred.

(Emphasis added). See Canty, 57 Va. App. at 177, 699 S.E.2d at 529 (“[H]ad Canty’s
September 2008 drug possession been raised at the first revocation hearing, and had the trial
court determined it was not grounds for a revocation, Code § 19.2-306(D) would have precluded
it from being used in any later hearing for this purpose.”). Therefore, both under Code
§ 19.2-306 and under Canty, the determinative factor is whether the trial court has rejected the
defendant’s alleged conduct as a basis for revocation at an earlier revocation hearing by making
a finding of “no cause.” See id. at 177 n.6, 699 S.E.2d at 529 n.6 (“Accordingly, had the issue
been raised at the first revocation hearing, the trial court could have considered the conduct or
elected to wait until charges were brought or a conviction was obtained.” (emphasis added)).
9
Appellant’s argument might well prevent a trial court from exercising its discretion and,
in so doing, from waiting to see what happens with pending charges before revoking part or all
of a suspended sentence. Appellant’s argument implies that a trial court must act and decide

-9-
authority of Canty to the facts of this case, the trial court did not abuse its discretion when it

revoked appellant’s suspended sentence on the basis of his conviction for the “Habitual Offender

6th” offense.

III. CONCLUSION

The trial court’s own statements make clear that, even though the Caroline County offenses

were raised to its attention at the October 16, 2009 revocation hearing, it never actually considered

appellant’s commission of the “Habitual Offender 6th”offense, as a basis for revoking appellant’s

suspended sentence, until the May 21, 2010 revocation hearing, at which point appellant had been

convicted of the “Habitual Offender 6th” offense. Therefore, the trial court did not abuse its

discretion in revoking appellant’s suspended sentence on that basis at the May 21, 2010 revocation

hearing. Accordingly, we affirm the trial court’s May 24, 2010 revocation order.

Affirmed.

whether to revoke all or part of a suspended sentence when charges are brought to the trial
court’s attention. Such a rule could needlessly undermine the trial court’s flexibility in a way
that could actually result in more revocations and more prison time for many defendants.

- 10 -