COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Clements and McClanahan
Argued at Richmond, Virginia
MARK ANDREW RHODES
OPINION BY
v. Record No. 1537-04-2 JUDGE JEAN HARRISON CLEMENTS
MAY 24, 2005
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUISA COUNTY
John R. Cullen, Judge
Robert R. Hagy, II (Law Offices of Rob Hagy, P.C., on briefs), for
appellant.
Virginia B. Theisen, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
Mark Andrew Rhodes (appellant) appeals from an order of the trial court revoking the
suspension of his previously suspended sentences and resuspending seven of the nine unserved
years of those sentences. He contends the trial court erred in (1) resuspending only seven of the
nine remaining years of his original sentences and (2) failing to consider reasonable alternatives
to incarceration. Finding no error, we affirm the trial court’s judgment.
I. BACKGROUND
“Under familiar principles of appellate review, we view the evidence and all reasonable
inferences fairly deducible from that evidence in the light most favorable to the Commonwealth,
the party that prevailed below.” Banks v. Commonwealth, 41 Va. App. 539, 543, 586 S.E.2d
876, 877 (2003). So viewed, the evidence established that, while riding in the passenger seat of
an automobile on May 25, 2001, appellant seized the steering wheel from the driver and caused
the vehicle to collide with a tree. Both the driver and appellant were injured in the collision.
Appellant was charged with and convicted of malicious wounding, driving while intoxicated, and
driving on a suspended license. By order dated April 3, 2002, the trial court sentenced him to ten
years in prison, with seven years suspended, on the malicious-wounding charge and twelve
months in jail, with twelve months suspended, on each of the driving charges. The suspended
sentences were conditioned upon appellant’s good behavior, abstention from alcohol and drug
use, five years of supervised probation, and successful completion of the “Detention and
Diversion Programs upon completion of his active sentence.”
In prison, appellant’s doctors prescribed Neurontin and Ibuprofen to treat the persistent
back pain and numbness he continued to experience as a result of the collision. He tried other
medications but believed this combination of pain medication was most effective in treating his
condition.
After serving his three-year active sentence, appellant went directly to the White Post
Detention Center Program on April 19, 2004. He was still taking Neurontin and Ibuprofen at the
time. Upon his arrival at the detention center, the facility nurse informed him that the use of
Neurontin was not permitted in the facility. In response, appellant indicated he wanted to “sign
out” of the detention center program, but was persuaded to stay until he could see the facility
physician. During his stay at the facility, appellant performed “exceptionally well in all
components of the program.”
On April 22, 2004, appellant met with the physician. The doctor prescribed Tylenol
500 mg as an alternative to Neurontin. On April 27, 2004, appellant reported to the doctor that,
although not as widespread as before, his back pain persisted. Upon examining him, the doctor
noted that appellant was able to “easily ben[d] over on an elevated table to grab his socks and . . .
bend over at the waist” and “had no difficulty getting dressed and putting his boots on.”
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On April 30, 2004, appellant voluntarily withdrew from the detention center program,
aware that such an action constituted a violation of the terms and conditions of his suspended
sentences. In signing a form entitled “Voluntary Request for Program Removal,” appellant
indicated he understood his decision would trigger a revocation hearing that could “result in the
imposition of [his] suspended sentence[s] and [his] incarceration.”
The trial court conducted a revocation hearing on June 7, 2004. At that hearing, appellant
testified that, since his withdrawal from the detention center program, his prescription for pain
medication had been changed to Flexeril and Motrin. He further testified he wanted to be
reevaluated for the detention and diversion center programs and would be “willing to try to give
it a go with the medications that [the doctors in those programs] would prescribe.”
Finding appellant “guilty of violating the terms and conditions of the [April 3, 2002]
order [requiring] him to enter into and successfully complete the detention center program and
the diversion center program,” the trial court revoked the suspension of the remaining seven-year
portion of the prison sentence on the malicious-wounding charge and the unserved twelve-month
jail sentences on the driving-while-intoxicated and driving-on-a-suspended-license charges.
Further finding that appellant was not “an appropriate candidate for either the detention center or
the diversion center program,” the court resuspended five years of the prison sentence and twelve
months of each jail sentence, resulting in an active sentence of two years in prison.
This appeal followed.
II. ANALYSIS
On appeal, appellant does not dispute that he violated the terms and conditions of his
previously suspended sentences by voluntarily withdrawing from the detention center program.
Nor does he challenge the trial court’s revocation of the suspension of those sentences. Rather,
he contends solely that the trial court abused its discretion (1) in resuspending only seven of the
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remaining nine years of his sentences and (2) in not considering reasonable alternatives to active
incarceration at the revocation hearing. For the reasons that follow, we disagree.
A. Resuspension of Sentences
Code § 19.2-306(C) provides, in pertinent part, as follows:
If the court, after hearing, finds good cause to believe that
the defendant has violated the terms of suspension, then . . . 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.
Having found good cause to believe appellant had violated the terms of suspension by
voluntarily withdrawing from the detention center program, the trial court revoked the
suspension of the balance of appellant’s original sentences. Thus, the unserved nine-year portion
of those sentences was “in full force and effect” and the trial court was authorized to resuspend
“all or any part” of that unserved portion of the original sentences. Code § 19.2-306(C). The
trial court then resuspended seven of the nine remaining years.
Appellant argues that the resultant imposition of two years of active prison time was
disproportionate to his violation of the terms and conditions of his suspended sentences and was,
thus, an abuse of the trial court’s discretion. Appellant’s argument is without merit.
The determination under Code § 19.2-306(C) of what, if any, part of the restored original
sentence is to be resuspended is a matter that lies within the trial court’s sound discretion. See
Slayton v. Commonwealth, 185 Va. 357, 365, 38 S.E.2d 479, 482-83 (1946) (noting that the
suspension of a sentence is “left to the discretion of the trial court”); Wright v. Commonwealth,
32 Va. App. 148, 152-53, 526 S.E.2d 784, 786-87 (2000) (noting that Code § 19.2-306 confers
broad discretion upon the trial court in matters involving the suspension of sentences). Hence,
the question here is simply whether there has been an abuse of discretion. The exercise of
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judicial discretion “‘implies conscientious judgment, not arbitrary action.’” Slayton, 185 Va. at
367, 38 S.E.2d at 484 (quoting Burns v. United States, 287 U.S. 216, 222-23 (1932)).
Here, there is no showing in the record that the trial court acted arbitrarily in
resuspending only seven of the nine unserved years remaining on appellant’s original sentences.
After having been convicted of malicious wounding, driving while intoxicated, and driving on a
suspended license, appellant was sentenced to a total of twelve years’ incarceration. Treating
appellant with leniency, the trial court suspended all but three years of appellant’s sentences
upon the condition that, among other things, he successfully complete the detention center
program and the diversion center program. Thus, once appellant completed the three-year period
of active incarceration, he was to be successively confined in “another intermediate facility of
the Department [of Corrections] as an alternative to incarceration where he would receive a
variety of services.” Word v. Commonwealth, 41 Va. App. 496, 504-05, 586 S.E.2d 282, 286
(2003). Clearly, then, the trial court did not intend that appellant would be released from
confinement after only three years of incarceration without first spending “an additional term of
confinement in a regimented environment with a structured program between his active
incarceration and his release into the community.” Id. at 503, 586 S.E.2d at 285. When
appellant violated the terms of his suspended sentences by voluntarily withdrawing from the
detention center program, the trial court found that he was not “an appropriate candidate for
either the detention center or the diversion center program” and effectively returned him to active
incarceration for an additional two years, which was well within the range of his original
sentence and “consistent with the trial court’s original sentencing objectives.” Id. at 505, 586
S.E.2d at 286.
Under these circumstances, we cannot say the trial court abused its discretionary
authority under Code § 19.2-306(C). See id. (“When [the defendant] could no longer satisfy the
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prerequisite condition under which his sentence was suspended, i.e. that he enter and
successfully complete two Department programs, the court had the authority to reconsider the
suspended sentences and to determine what portion of the suspended sentences or other
alternatives to incarceration would be appropriate in lieu of the confinement that had been
ordered in the community-based programs.”).
B. Reasonable Alternatives to Incarceration
Appellant’s contention that the trial court abused its discretion by not considering
reasonable alternatives to active incarceration at the revocation hearing is also without merit.
For one thing, appellant’s premise that the trial court did not consider reasonable
alternatives to active incarceration is not supported by the record. In response to appellant’s
request at the revocation hearing that he be reevaluated for the detention and diversion center
programs, the trial court expressly found that appellant was no longer “an appropriate candidate
for either the detention center or the diversion center program.” Clearly, the making of such a
finding constitutes consideration by the trial court of the alternatives to active incarceration
requested by appellant.
Moreover, there is no legal authority requiring a trial court to consider reasonable
alternatives to incarceration under the circumstances before us in this case. As previously
mentioned, the trial court suspended nine of the twelve total years of appellant’s sentences upon
the condition that he successfully complete the detention center program and the diversion center
program. After serving the active portion of his prison sentence, appellant reported to the
detention center program, where he learned he would be unable to use the medication he found
to be the most effective in relieving his back pain. Appellant was initially persuaded to stay in
the program and performed “exceptionally well.” However, citing the unsuitability of the
medication prescribed by the facility doctor, he voluntarily withdrew from the detention center
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program after eleven days, in violation of the terms and conditions of his suspended sentences.
The record contains neither a finding by any healthcare personnel that such a withdrawal was
medically necessary nor a determination by the Department of Corrections that appellant was
unable to complete the program.
Code § 19.2-316.2(A)(4) provides, in pertinent part, as follows:
Upon the defendant’s (i) voluntary withdrawal from the
[detention center] program [or] (ii) removal from the [detention
center] program by the Department for intractable behavior as
defined in § 19.2-316.1. . . , the court shall cause the defendant to
show cause why his . . . suspension of sentence should not be
revoked. Upon a finding that the defendant voluntarily withdrew
from the program [or] was removed from the program by the
Department for intractable behavior . . . , the court may revoke all
or part of the . . . suspended sentence . . . .
Code § 19.2-316.1 defines “intractable behavior” as “that behavior which, in the determination
of the Department of Corrections, (i) indicates an inmate’s unwillingness or inability to conform
his behavior to that necessary to his successful completion of the program or (ii) is so disruptive
as to threaten the successful completion of the program by other participants.” Thus, the
Department of Corrections may remove a participant from the detention center program, under
Code § 19.2-316.2(A)(4)(ii), for “intractable behavior” if the participant is “no longer physically,
or mentally, suited for the program.” Peyton v. Commonwealth, 268 Va. 503, 511, 604 S.E.2d
17, 21 (2004).
Here, however, appellant concedes he voluntarily withdrew from the detention center
program. Accordingly, the trial court was authorized, under Code § 19.2-316.2(A)(4), to revoke
the suspension of appellant’s previously suspended sentences and return him to active
incarceration to serve the balance of his original sentences. See also Leitao v. Commonwealth,
39 Va. App. 435, 438, 573 S.E.2d 317, 319 (2002) (“When a court revokes the suspension of
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execution of sentence, ‘the original sentence shall be in full force and effect.’” (quoting Code
§ 19.2-306(C))).
Nevertheless, relying on Peyton, appellant argues that, in light of the circumstances
“necessitating” his withdrawal from the detention center program, the trial court abused its
discretion in not considering reasonable alternatives to incarceration. Appellant’s reliance on
Peyton is misplaced.
In Peyton, the trial court suspended a part of Peyton’s sentence upon the condition that he
complete the detention center program. 268 Va. at 506, 604 S.E.2d at 18. After more than three
months in the program, Peyton began vomiting blood and was taken to the hospital. Id. Citing
“medical/psychological reasons,” the Department of Corrections removed Peyton from the
program. Id. at 507, 604 S.E.2d at 18. In a show cause hearing, having determined that Peyton
had violated the terms of his suspended sentence by not completing the detention center
program, “the trial court revoked the suspended sentence and imposed the original three[-]year
active sentence,” id., “without considering reasonable alternatives to imprisonment,” id. at 511,
604 S.E.2d at 21. Upon review, the Supreme Court first noted that Peyton’s removal from the
detention center program was not a voluntary withdrawal from the program. Id. at 510, 604
S.E.2d at 20. Examining the meaning of the term “intractable behavior” in Code
§ 19.2-316.2(A)(4)(ii) and focusing on the “distinction between the willful failure of an inmate to
comply with the requirements of the detention center program . . . and the subsequent inability of
the inmate to do so resulting from an unforeseen medical condition,” the Court then held that,
where the removal of a participant from the detention center program results from the
participant’s “unforeseen medical condition,” rather than his willful “behavior or conduct,” a
trial court abuses its discretion in revoking a suspended sentence without considering
“reasonable alternatives to imprisonment.” Id. at 511, 604 S.E.2d at 21. Finally, the Supreme
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Court determined that, in light of the circumstances of the case, the trial court abused its
discretion in revoking Peyton’s suspended sentence “without considering reasonable alternatives
to imprisonment.” Id.
Here, unlike Peyton, appellant was not removed from the detention center program for
“intractable behavior.” Instead, he chose to withdraw from the program of his own accord and
his decision to do so was admittedly voluntary. Nothing in the record shows that his removal
was being contemplated by the Department of Corrections or that it was medically necessary.
Additionally, the instant record reflects that the trial court in this case, unlike the trial court in
Peyton, considered alternatives to incarceration at the revocation hearing. Thus, Peyton is
clearly distinguishable from the case before us and is inapposite.
We conclude, therefore, that the trial court’s decision, following appellant’s violation of
the terms and conditions of his suspended sentences, to effectively impose an active sentence of
two years in prison rather than permit appellant to participate in the detention center and
diversion center programs was not an abuse of the court’s discretionary authority under Code
§ 19.2-316.2(A)(4).
Accordingly, we affirm the trial court’s judgment.
Affirmed.
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