COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, McClanahan and Haley
Argued at Chesapeake, Virginia
KEVIN A. CANTY
OPINION BY
v. Record No. 0691-09-1 JUDGE ELIZABETH A. McCLANAHAN
OCTOBER 5, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
James A. Cales, Jr., Judge
Nathan A. Chapman (Chapman Law Firm, P.C., on briefs), for
appellant.
Karen Misbach, Assistant Attorney General II (Kenneth T.
Cuccinelli, II, Attorney General, on briefs), for appellee.
Kevin A. Canty appeals the suspension revocation of his February 2008 sentence for
possession of heroin. Canty argues the trial court erred by finding him in violation of the terms of
his probation and suspension because the violation he committed, while after the date of his initial
sentence, was before his prior revocation hearing. We find 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. Therefore, we affirm
the judgment of the trial court.
I. BACKGROUND
Canty was convicted of heroin possession in February 2008. The trial court sentenced
him to two years incarceration and suspended the entire sentence conditioned upon the
successful completion of two years of supervised probation. In August 2008, Canty’s probation
officer filed a report with the trial court alleging Canty violated the terms of his probation 1 and a
show cause capias was issued. When the capias was executed and Canty was taken into custody,
the police found heroin in his possession but did not charge him with drug possession at that
time. 2 In October 2008 (the first revocation hearing), the trial court found Canty violated the
terms of his probation and revoked the previously suspended sentence, reimposed the sentence of
two years incarceration, and resuspended one year and eight months. The fact that Canty was in
possession of heroin when taken into custody in September was not revealed to the trial court
and not considered. 3
Subsequently, Canty was indicted for heroin possession. The charge was based on his
possession of the drug when he was taken into custody on the probation violation. 4 In January
2009, Canty was found guilty on the September 2008 drug possession charge and his probation
officer filed a report stating that Canty had violated the conditions of his probation. At a second
revocation hearing, the trial court found Canty guilty of violating the terms of his probation,
1
Canty’s probation officer alleged Canty failed to report to the officer as instructed,
failed to be truthful with the officer, and unlawfully used, possessed, or distributed controlled
substances or related paraphernalia.
2
The Commonwealth asserted Canty was not charged with possession at that time
because he agreed to aid police in their investigation of other drug offenders. There is no
evidence of any such agreement in the record, and we have not considered the Commonwealth’s
assertion in this regard in reaching our holding.
3
In his supplemental brief, Canty argues “there is nothing in the record to indicate” his
possession of heroin in September 2008 was not considered by the trial court in the first
revocation hearing. To the contrary, the trial court found that “only two people knew about [the
September 2008 drug possession]” – Canty and the Commonwealth – at the first revocation
hearing. Thus, the record affirmatively shows it was neither known nor considered by the trial
court at the first revocation hearing.
4
According to the Commonwealth, Canty was charged in connection with the September
2008 heroin possession when he failed to cooperate with police as he had previously agreed to
do. Again, because there is no agreement to this effect in the record, we do not consider the
Commonwealth’s contention.
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revoked his previously suspended sentence, reimposed one year and eight months, and
resuspended eight months.
II. ANALYSIS
Canty argues the trial court erred in finding he violated the conditions of his probation
because he committed no violative act after the first revocation hearing. Canty contends the
holdings in Hamilton v. Commonwealth, 217 Va. 325, 228 S.E.2d 555 (1976), and Oliver v.
Commonwealth, 38 Va. App. 845, 568 S.E.2d 465 (2002), should extend to future revocation and
resuspension events. Those decisions hold that a trial court cannot rely upon conduct occurring
before the initial sentencing in finding a probation violation. Specifically, Canty argues that acts he
committed after the initial sentencing but before his previous revocation hearing cannot be
considered in determining subsequent probation violations.
“[U]nder Virginia law once a defendant receives a suspen[sion] [of] sentence, a judge’s
power to revoke the suspension . . . is governed by statute.” Carbaugh v. Commonwealth, 19
Va. App. 119, 123, 449 S.E.2d 264, 266 (1994) (citing Grant v. Commonwealth, 223 Va. 680, 684,
292 S.E.2d 348, 350 (1982); Dyke v. Commonwealth, 193 Va. 478, 479, 69 S.E.2d 483, 484
(1952)). “Code § 19.2-306 clearly specifies the periods in which the events amounting to cause for
revocation must occur in order for a judge to properly revoke a suspended sentence.” Oliver, 38
Va. App. at 849, 568 S.E.2d at 467. The “court may revoke the suspension of sentence” for any
cause that occurred within “the probation period,” or 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.” Code § 19.2-306(A).
By the plain language of the statute, a trial court is empowered to revoke a suspended
sentence for misconduct occurring after the initial suspension of sentence and prior to the expiration
of the period of suspension. Collins v. Commonwealth, 269 Va. 141, 147, 607 S.E.2d 719, 722
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(2005). The “statutes obviously confer upon trial courts ‘wide latitude’ and much ‘discretion in
matters of suspension and probation’” in order to provide them with “a remedial tool” in the
rehabilitation of criminals. Wright v. Commonwealth, 32 Va. App. 148, 151, 526 S.E.2d 784, 786
(2000) (citation omitted). Hence, the “power of the court to revoke for breach of the terms and
conditions of probation should not be restricted beyond the limitations fixed by the statutes.” Rease
v. Commonwealth, 227 Va. 289, 294, 316 S.E.2d 148, 151 (1984). 5
When the trial court initially imposed Canty’s sentence in February 2008, it conditioned
the suspension of his sentence on his successful completion of two years supervised probation
and his compliance “with all the rules and requirements set by the Probation Officer.” Condition
1 of the Conditions of Probation/Post-Release Supervision required Canty to “obey all Federal,
State and local laws and ordinances.” In accordance with Code § 19.2-306(A), the trial court
was empowered to revoke the suspension of Canty’s sentence for conduct that occurred
subsequent to the February 2008 suspension and within the probation period, which therefore
included Canty’s heroin possession in September 2008.
In addition to the explicit conditions in the original sentencing order, the implicit condition
of good behavior attaches to the suspended sentence ‘“the moment following its pronouncement.’”
Collins, 269 Va. at 146, 607 S.E.2d at 721 (quoting Coffey v. Commonwealth, 209 Va. 760, 763,
167 S.E.2d 343, 345 (1969)). Once imposed, the condition of good behavior lasts “throughout the
5
On appeal from a revocation proceeding, a trial court’s revocation of a suspension of
sentence will not be disturbed in the absence of an abuse of discretion. Allison v. Commonwealth,
40 Va. App. 407, 411, 579 S.E.2d 655, 657 (2003); Davis v. Commonwealth, 12 Va. App. 81, 86,
402 S.E.2d 684, 686 (1991). “The cause deemed by the court to be sufficient for revoking a
suspension must be a reasonable cause.” Hamilton, 217 Va. at 327, 228 S.E.2d at 556 (internal
citations and quotations omitted). Reasonable cause for revoking a sentence includes the
defendant’s failure to comply with the conditions of probation, Hartless v. Commonwealth, 29
Va. App. 172, 175, 510 S.E.2d 738, 739 (1999), or conditions of the suspension, Griffin v.
Cunningham, 205 Va. 349, 354, 136 S.E.2d 840, 844 (1964). The issue in this case is the trial
court’s power to consider certain conduct, not the exercise of its discretion.
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period of supervised probation.” Id. at 147, 607 S.E.2d at 721. That there are multiple “periods to
which the condition of good behavior” is attached is “immaterial” if “the condition of good behavior
was in effect at the time the defendant committed the new offenses.” Coffey, 209 Va. at 763-64,
167 S.E.2d at 345. Thus, throughout Canty’s period of supervised probation the trial court had the
“power to invoke the condition of good behavior which had attached to [Canty’s] suspension from
the beginning.” Id. at 764, 167 S.E.2d at 346.
Code § 19.2-306 addresses the effect of a prior hearing on the court’s authority to
consider alleged violations and contains its own statutory preclusionary rule: “If any court has,
after hearing, found no cause” to “revoke a suspended sentence,” then “any further hearing” for
that purpose, “based solely on the alleged violation for which the hearing was held, shall be
barred.” Code § 19.2-306(D) (emphasis added). Therefore, had 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. 6
No Virginia precedent, however, has interpreted this statute to preclude a trial court from
relying on a ground not raised at a prior hearing and not previously found to be “no cause” for
revocation. Code § 19.2-306(D). Doing so would be to “judicially graft” an unwritten provision
into the statute, Cent. Va. Obstetrics & Gynecology Assocs., P.C. v. Whitfield, 42 Va. App. 264,
280, 590 S.E.2d 631, 640 (2004), under the subtle “guise of judicial interpretation,” Holly Hill
Farm Corp. v. Rowe, 241 Va. 425, 431, 404 S.E.2d 48, 51 (1991).
6
There is “no requirement . . . that the suspension may be revoked only upon the
conviction of a subsequent criminal offense.” Slayton v. Commonwealth, 185 Va. 357, 365, 38
S.E.2d 479, 483 (1946). 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.
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Contending the trial court was barred from considering acts that occurred prior to the
“new” period of suspension and probation in October 2008, Canty misplaces his reliance on
Hamilton and Oliver. In Hamilton, the Supreme Court held a defendant could not be found in
violation of his probation for conduct occurring prior to initial sentencing. In Oliver, this Court
similarly held revocation of a suspended sentence must be for conduct occurring after the
imposition of the suspended sentence. But these holdings, which recognize the common sense
principle that a defendant cannot be found in violation of conditions not yet in existence, 7 have
no application here since the probation condition violated by Canty was in place from the time of
his initial sentencing in February 2008 and, therefore, at the time of his September 2008 drug
possession. 8 In neither Hamilton nor Oliver did the courts suggest that the trial court is
precluded from considering conduct occurring after the initial sentencing but prior to a
subsequent revocation and resuspension. And we find no reason to extend the holdings in
Hamilton and Oliver to future revocation and resuspension events. 9 Indeed, we reject the notion
7
Even this proposition must give way to the “‘principle that revocation of probation is
permissible when defendant’s acts prior to sentencing constitute a fraud on the court.’” Bryce v.
Commonwealth, 13 Va. App. 589, 591, 414 S.E.2d 417, 418 (1992) (quoting United States v.
Kendis, 883 F.2d 209, 210 (3d Cir. 1989)).
8
Because the probation violation found in October 2008 was not itself a criminal
conviction, the revocation and resuspension of Canty’s suspended sentence in October was
merely a modification of the original suspended sentence. See Alsberry v. Commonwealth, 39
Va. App. 314, 318, 572 S.E.2d 522, 524 (2002) (a probation violation is not itself a criminal
conviction). Accordingly, the sentence imposed after the second revocation hearing was not a
modification of the October 2008 sentence, as Canty contends, but rather a further modification
of the original February 2008 suspended sentence. Id. (“[T]he issue at a revocation proceeding is
not what sentence to impose upon the defendant for his prior criminal conviction, but whether to
continue all or any portion of a previously imposed and suspended sentence due to the
defendant’s failure to abide by the terms of his probation.”).
9
Canty argues because “each revocation of a previously suspended sentence and the
resuspension of some or all of that previously suspended sentence is a ‘new sentencing event,’”
the trial court cannot consider acts prior to the most recent sentencing event. Although we have
referred to the revocation and resuspension as a “new sentencing event,” we did so in the context
of recognizing the trial court’s power to place new conditions on resuspensions. We explained
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that the revocation and resuspension of all or part of a defendant’s suspended sentence prevents
the trial court from thereafter considering conduct by the defendant, never before considered,
that occurred prior to the date of the revocation and resuspension. To do so would immunize the
defendant (in the context of sentencing on the original crime) from the consequences of acts he
committed, no matter how heinous, in violation of certain conditions of his probation once the
trial court found him in violation of other, even minor, terms of his probation.
Therefore, since the September 2008 drug possession was not raised at the first
revocation hearing, the trial court had the power to rely on it at the second revocation hearing in
finding Canty violated the terms of his probation. See Rease, 227 Va. at 294, 316 S.E.2d at 151
(the “power of the court to revoke for breach of the terms and conditions of probation should not
be restricted beyond the limitations fixed by the statutes”).
For these reasons, we affirm the judgment of the trial court.
Affirmed.
the trial court is “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.” Reinke v. Commonwealth, 51 Va. App. 357,
367-68, 657 S.E.2d 805, 811 (2008); see also Wright, 32 Va. App. at 153, 526 S.E.2d at 787
(trial court had authority to extend the suspension period when it sentenced defendant following
defendant’s violations of the conditions of his previously suspended sentence). The revocation
and resuspension is a new sentencing event but it is not a new sentence. See Alsberry, 39
Va. App. at 318, 572 S.E.2d at 524. And it does not follow that the trial court’s authority to
place new conditions on a resuspension prevents it from considering misdeeds committed by the
defendant prior to the resuspension in determining future probation violations. In fact, the
principle recognized in Reinke and Wright, that the trial court’s power should not be restricted
beyond the statutory limitations, should apply with equal force here.
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