Word v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Senior Judge Coleman
Argued at Richmond, Virginia

VERLIE MARION WORD, JR.
OPINION BY
v. Record No. 0097-02-2 JUDGE SAM W. COLEMAN III
SEPTEMBER 16, 2003
COMMONWEALTH of VIRGINIA

FROM THE CIRCUIT COURT OF HALIFAX COUNTY
Leslie M. Osborn, Judge

Tracy L. Quackenbush (Law Office of W. W.
Bennett, Jr., P.C., on brief), for appellant.

Leah A. Darron, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.

Verlie Marion Word, Jr., appeals the trial court's order

revoking his suspended sentence contending that the court abused

its discretion by finding he violated a condition of probation.

He argues that he was unable, through no fault of his own, to

enter and successfully complete the Detention Center Incarceration

Program (Program), to which the court had ordered him committed,

because the Program's administrator arbitrarily refused to accept

him after having previously recommended to the court that he be

permitted to participate.

From our reading of the trial court's order, it is unclear

whether the trial court found Word to be in violation of a
condition of probation. What is clear from the record is the

court found it to be "an impossibility" for Word to comply with

the condition of the suspended sentence that he enter and

successfully complete the Program because the Program would no

longer accept Word; thus, the court vacated that provision of the

sentencing order which required that Word attend the Program.

Nevertheless, to the extent that the court may have found Word

violated a condition of probation, we find no evidence to support

such a finding. Accordingly, we reverse the trial court's

probation violation finding and remand the case to the trial court

to vacate that portion of its order. We affirm, however, the

trial court's revocation of a portion of Word's suspended sentence

based upon the court's determination that it was "an

impossibility" for Word to satisfy that condition of his suspended

sentence which required that he attend the Program, a requirement

imposed as a prerequisite to suspending the sentence.

FACTS

The trial court convicted Word for the felonies of eluding a

police officer, two counts of driving after being declared an

habitual offender, and possession of cocaine and sentenced him to

a total of nine years and twelve months confinement. Before

imposing sentence, the court ordered that Word be evaluated by the

Program to determine his eligibility for participation as an

alternative to incarceration. The Program determined that Word

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satisfied the criteria for acceptance and recommended him for the

program.

Based on the Program's recommendation, the trial court

ordered the following:

The Court SUSPENDS all of the (2) year
Elude Police Officer sentence, all but twelve
(12) months of the two (2) year Drive After
Declared Habitual Offender felony charge, all
of the twelve (12) month Drive After Declared
Habitual Offender misdemeanor sentence, and
all of the five (5) year Possess Schedule II
Controlled Substance – Cocaine sentence, for
a total suspension of eight (8) years, twelve
(12) months upon the following conditions:

Good Behavior: The defendant shall be of
good behavior for five (5) years from the
defendant's release from confinement.

Community-based Corrections System Program:
The defendant shall enter and successfully
complete the Detention Center Program and
then the Diversion Center Program.

Supervised probation: The defendant is
placed on probation to commence today, under
the supervision of a Probation Officer for
(3) years, or unless sooner released by the
court or by the Probation Officer. The
defendant shall comply with all the rules
and requirements set by the Probation
Officer.

Thus, while Word was sentenced to serve twelve months active

incarceration, he was then to be successively confined in the

Detention Center Program and the Diversion Center Program.

Word served the active twelve-month sentence but was not

released or transferred to the Department of Corrections for

entry into Program as the court had ordered. Word filed a

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motion that he be released because the sentencing order did not

require or authorize that he be further incarcerated awaiting

transfer into the Program. At the hearing on the motion, the

trial judge issued a capias to hold Word pending a show cause

hearing as to why his probation and suspended sentences should

not be revoked based on the Program administrator having now

determined that Word would not be accepted into the Program.

By way of proffer, the assistant Commonwealth's attorney

represented that he had informed the Program that Word was being

investigated by federal authorities for two murders that occurred

in 1993 and that indictments were likely to be forthcoming. The

Commonwealth's attorney represented that he contacted the Program

only out of a "concern for security" and to ensure that Word was

no "flight risk." After being contacted by the Commonwealth's

attorney, the Program determined that Word would not be accepted

because of the likelihood that he would be arrested and would be

unable to complete the Program. A senior probation officer

notified the court by letter that the Program would not accept

Word "due to the ongoing criminal investigation."

The trial court denied Word's motion to be released, ruling

that the court had intended that Word remain incarcerated until

he was transferred to the Program. During the show cause

portion of the hearing, the trial court ruled that Word's entry

into the Program was a condition of his suspended sentence,

which had been imposed as an alternative to incarceration.
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Thus, the trial court ruled that because entry into the Program

was now "an impossibility" Word was in violation of a condition

of his suspended sentence. Because the sentencing order provided

for successive periods of confinement in the Detention Center

Program and the Diversion Center Program as an alternative to

incarceration and after Word served a twelve-month jail

sentence, the court revoked the suspended sentence and then

re-suspended all but 120 days of the sentence, effectively

imposing a 120-day jail sentence in lieu of confinement in the

two programs.

ANALYSIS

Revoking Suspended Sentences

"The law of Virginia distinguishes the suspension of a

sentence from the imposition of probation." Anderson v.

Commonwealth, 25 Va. App. 565, 572, 490 S.E.2d 274, 277 (1997)

(citing Grant v. Commonwealth, 223 Va. 680, 292 S.E.2d 348

(1982)), aff'd en banc, 26 Va. App. 535, 495 S.E.2d 547, aff'd,

256 Va. 580, 507 S.E.2d 339 (1998). "[S]entencing judges must

be cognizant that probation and suspension of sentence are

separate and distinct concepts and that they may be fixed at

different intervals to accomplish different goals." Carbaugh v.

Commonwealth, 19 Va. App. 119, 126, 449 S.E.2d 264, 268 (1994)

(citation omitted).

Suspending sentence is to delay either the execution of an

imposed sentence or the imposition of a sentence. See Code
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§ 19.2-303. A court may "suspend" all or a portion of a

sentence or delay imposition of a sentence "under terms and

conditions which shall be entered in writing by the court." Id.

Probation, on the other hand, refers to the continued

supervision by the court over the convicted offender and may be

either supervised or unsupervised but shall be "under such

conditions as the court shall determine." Id. Probation is

defined as "the action of suspending the sentence of a convicted

offender in such a way that the offender is given freedom after

promising good behavior and agreeing to a varying degree of

supervision, to the usual imposed condition of making a report

to a particular officer or court at stated intervals, and to any

other additionally specified conditions." Webster's Third New

International Dictionary 1806 (1981). Black's Law Dictionary

defines probation as "[a] court-imposed criminal sentence that,

subject to stated conditions, releases a convicted person into

the community instead of sending the criminal to jail or

prison." Black's Law Dictionary 1220 (7th ed. 1999).

A suspended sentence and probation are often coterminous

and usually augment one another in that probation and the

conditions imposed for probation are usually ordered to enable

the convicted offender to accomplish certain goals during the

term of a suspended sentence. "[While] the conditions imposed

in probation and those imposed in the suspension of sentences

need not be analyzed in different contexts[, separate conditions
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may be imposed as a prerequisite to suspending a sentence which

may be only tangentially related to the conditions of probation.

However,] [t]he common objective of such conditions is to

protect society and to promote rehabilitation of the convict."

Anderson, 25 Va. App. at 572, 490 S.E.2d at 277.

Here, the trial court imposed a suspended sentence

conditioned upon Word (1) being of good behavior, (2) being on

supervised probation, and (3) completing the Program. The

court's sentencing order provided that, after serving a period

of incarceration in jail, Word would be confined in the Program,

a residential program operated by the Department of Corrections

(Department) pursuant to Code § 53.1-67.8.1 While entering and

successfully completing the Program may have been a condition of

probation, merely entering the Program was a prerequisite to and

one of the conditions upon which the nine-year sentence was

suspended. When the trial court sentenced Word for the various

non-violent felonies, the court clearly intended to impose, and

1
Code § 53.1-67.8 provides:

The Department is authorized to establish
and maintain a system of residential
detention centers to provide a highly
structured, short-term period of
incarceration for individuals committed to
the Department under the provisions of
§ 19.2-316.2. The Program shall include
components for military-style management and
supervision, physical labor in organized
public works projects, counseling, remedial
education, substance abuse testing and
treatment, and community re-entry services.
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did impose, upon Word an additional term of confinement in a

regimented environment with a structured program between his

active incarceration and his release into the community. The

Program is for non-violent offenders, such as Word, who do not

qualify for the Boot Camp Incarceration Program pursuant to Code

§ 19.2-316.1, but nevertheless require and would benefit from a

demanding structured program.

The Department conducted an evaluation to determine Word's

suitability for the Program and recommended he be "committed" to

the Program.2 However, prior to Word's entry, the Program's

administrator determined not to admit Word based upon the

Commonwealth's attorney having informed him that Word was under

2
Code § 19.2-316.2 provides:

1. Following conviction and prior to
imposition of sentence . . . , upon motion
of the defendant, the court may order such
defendant committed to the Department of
Corrections for a period not to exceed sixty
days from the date of commitment for
evaluation and diagnosis by the Department
to determine suitability for participation
in the Detention Center Incarceration
Program. . . .

2. Upon determination that (i) such
defendant is physically and emotionally
suited for the program, (ii) such commitment
is in the best interest of the Commonwealth
and the defendant, and (iii) facilities are
available for the confinement of the
defendant, the Department shall recommend to
the court in writing that the defendant be
committed to the Detention Center
Incarceration Program.

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federal investigation for a violent felony and that his arrest

might be imminent. Thus, because the prospect existed that Word

might be arrested and be unable to complete the Program, the

administrator changed the recommendation to denying Word

admission. Accordingly, because the Program would not accept

Word, the court determined that performance of that condition of

the suspended sentence became "an impossibility."

Code § 19.2-306 provides, "The court may, for any cause

deemed by it sufficient . . . revoke the suspension of sentence

. . . and cause the defendant to be arrested and brought before

the court . . . whereupon, . . . the court may pronounce

whatever sentence might have been originally imposed."

When a defendant fails to comply with the
terms and conditions of a suspended
sentence, the trial court has the power to
revoke the suspension of the sentence in
whole or in part. "A trial court has broad
discretion to revoke a suspended sentence
. . . based on Code § 19.2-306, which allows
a court to do so 'for any cause deemed by it
sufficient.'"

Alsberry v. Commonwealth, 39 Va. App. 314, 320, 572 S.E.2d 522,

525 (2002) (citations omitted).

Here, the trial court had sentenced Word to terms of

incarceration totaling nine years and twelve months and

suspended all but twelve months conditioned upon Word entering

and successfully completing the Detention Center Program and

then the Diversion Center Program. The sentencing order did not

provide that after serving his active incarceration that Word
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would be released from confinement and remain on probation. The

order provided that he would be confined in another intermediate

facility of the Department as an alternative to incarceration

where he would receive a variety of services. When Word could

no longer satisfy the 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, see Richardson v.

Commonwealth, 131 Va. 802, 109 S.E. 460 (1921) (when execution

of a sentence is suspended the case remains pending and the

court does not lose control of the case or the accused), 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.

While the revocation of a suspended sentence must be based

upon reasonable cause, the failure or inability of a convicted

offender to participate in a community based diversion program,

when such participation was a condition of and prerequisite to

having been given a suspended sentence, is a reasonable cause

for the court to revoke a suspended sentence. See Bailey v.

Commonwealth, 19 Va. App. 355, 451 S.E.2d 686 (1994). Here the

court conducted a revocation hearing and considered the

sentencing options available and determined to revoke, in

effect, a portion of the suspended sentence. Under these
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circumstances, we find the revocation of the suspended sentence

to be reasonable.

Accordingly, we affirm the trial court's revoking Word's

nine-year suspended sentence and in re-suspending all but 120

days, thereby requiring that he serve an additional 120 days of

active incarceration. Such action was not arbitrary; it was

done with due process, and was consistent with the trial court's

original sentencing objectives.3

Revoking Probation

To the extent that the trial court found Word to be in

violation of probation, we agree with Word that he did not

violate any condition of probation.

Word was called upon to show cause "why his suspended

sentence should not be revoked for violation of probation

conditions . . . ." The trial court's disposition order stated

that appellant "was found to have violated the terms and

3
Grounds for revoking Word's suspended sentence were not
founded in the statutes governing the Programs. Code
§ 19.2-316.2(4) provides that "[u]pon a finding that the
defendant voluntarily withdrew from the Program, was removed
from the Program by the Department for intractable behavior, or
failed to comply with the terms and conditions of probation, the
court may revoke all or part of the . . . suspended sentence
. . . ." Word was not removed from the Program for intractable
behavior. The court did not find, nor does the record suggest,
that Word was unwilling or unable to conform his behavior to
that required to complete the Program. See Code § 19.2-316.1
(defining "intractable behavior"); see also Peyton v.
Commonwealth,___ Va. App. ___, ___ S.E.2d ___ (2003) (revocation
upheld where medical condition prevented Peyton from completing
Program).
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conditions of the previously suspended sentence . . . ." We

understand this language to distinguish between revoking a

suspended sentence and revoking probation and that the court

held Word's failure to satisfy the condition of the suspended

sentence was the ground for additional time being imposed.

However, the trial court further ordered that Word "shall not be

subject to another show cause on this particular violation of

probation conditions." This, and other language in the order

suggests that the court may have found that Word violated a

condition of probation and that a probation violation may now be

part of Word's criminal record.

As previously noted,

Although the power of a court to revoke
[probation or] a suspended sentence granted
by [Code § 19.2-306] is broad, it is not
without limitation. The cause deemed by the
court to be sufficient for revoking
[probation or] a suspension must be a
reasonable cause.

The sufficiency of the evidence to sustain
an order of revocation "is a matter within
the sound discretion of the trial court.
Its findings of fact and judgment thereon
are reversible only upon a clear showing of
abuse of such discretion." The discretion
required is a judicial discretion, the
exercise of which "implies conscientious
judgment, not arbitrary action."

Duff v. Commonwealth, 16 Va. App. 293, 297, 429 S.E.2d 465, 467

(1993) (citation omitted).

The true objective of suspended sentencing
[and probation] is to rehabilitate and to
encourage a convicted defendant to be of
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 good behavior. To accomplish this it is
necessary that good conduct be rewarded. It
is important that a defendant know that good
conduct on his part will expedite his
complete restoration to society.

Hamilton v. Commonwealth, 217 Va. 325, 328, 228 S.E.2d 555,

556-57 (1976).

"Although a probation violation hearing is not a stage of a

criminal prosecution, and thus does not afford a convict all

rights attending a criminal prosecution, such revocation hearing

is nevertheless a criminal proceeding[,]" Green v. Commonwealth,

263 Va. 191, 195-96, 557 S.E.2d 230, 233 (2002) (citations

omitted), which carries significant penal consequences.

Probation violations are entered in the National Crime

Information Computer (NCIC) and become a part of a convicted

criminal's record. A person's criminal record impacts

employment and other personal opportunities, as well as any

subsequent criminal proceedings which might arise, including

bond hearings, sentencing hearings, placement in correctional

programs and institutions, and length of supervision. Most

significantly, probation violations are considered "sentencing

events" for the purpose of a court calculating sentencing

guidelines.

Appellant committed no willful act that would reasonably

support a violation of probation. The crimes for which the

prosecutor alleged the federal authorities were investigating

Word preceded the term of probation and suspended sentence and,
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thus, would not have been a basis for revoking Word's suspended

sentence. See Bailey v. Commonwealth, 19 Va. App. 355, 357,

451 S.E.2d 686, 687 (1994) (holding "revocation of the suspended

sentence . . . must be based upon cause that occurred within the

suspension or probation period"). See also Code § 19.2-306;

Preston v. Commonwealth, 14 Va. App. 731, 419 S.E.2d 288 (1992).

Moreover, insofar as the record reflects, Word was not arrested

or charged with the offenses that were being investigated at any

time the trial court was considering whether to revoke Word's

suspended sentence or probation. Thus, to the extent that the

trial court may have found that Word violated a condition of

probation, we reverse that finding and remand the case to the

trial court to vacate that finding and to take such further

action as hereafter directed to remove the probation violation

finding from Word's record.

In summary, we affirm the trial court's revocation of

Word's suspended sentence and re-suspending all but 120 days of

the remaining nine-year sentence. We reverse that portion of

the trial court's order to the extent that it may have found

that Word violated a condition of probation; we remand the case

to the trial court with instructions that the court determine

whether Word was found to have violated a condition of probation

and, as a result, has a probation violation on his record. To

the extent that Word has a probation violation on his record,

the court shall vacate that part of its order and enter such
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order as is necessary to remove and expunge the probation

violation from Word's record.

Affirmed in part,
vacated and
remanded in part.

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Benton, J., concurring, in part, and dissenting, in part.

I concur in the portion of the opinion styled Revoking

Probation and in reversing the trial judge's finding that Verlie

Marion Word violated a condition of probation. I dissent from

the holding that the trial judge did not err in revoking Word's

suspended sentence.

The record indicates that after the trial judge accepted

Word's guilty plea, the judge ordered that Word be evaluated by

the Detention Center Incarceration Program. The Detention

Center did so and determined that Word was suitable for the

placement. The final conviction order, which was entered in

2001, suspended eight years and twelve months of Word's sentence

on condition that he enter and successfully complete the

Detention Center program. After Word served the sentence of

active incarceration, the Department of Corrections did not

transfer him to the Detention Center as required by the order.

At a hearing held less than four months after entry of the

conviction order, the prosecutor represented to the trial judge

by way of proffer the following reason for the Department's

actions:

Mr. Word is the subject of a federal
investigation related to two murders that
occurred in 1993. We've been investigation
this . . . since '93 and with my
involvement, I guess, since the last of
that, four months.

Mr. Word, in our opinion, was a
security risk. Word had gotten back to him
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 that he was going to be charged with two
counts of capital murder. We believe that
he is a security risk, a flight risk.

I made contact with the detention
center and inquired of them as to what their
facilities were like, whether or not he
would be allowed to leave the premises
unaccompanied.

They advised that precautions could be
taken with somebody, but in light of the
charges, though they are not pending, I want
to make that clear to the Court, he has not
been charged yet, though I can state quite
frankly in court, he will be charged. The
evidence is quite sufficient.

He will probably be charged in February
for the two counts of capital murder plus a
number of other federal charges relating to
the attempted distribution of controlled
substances. I believe that would be more
than fifty grams.

Anyway, I'm sorry, I relayed that
information to the detention center. And
they said, quite frankly, in that case, we
can't take someone like that, he cannot be
housed here, especially in light of the fact
that I cannot guarantee them, that he would
not be able to complete any type of program
and that it's most likely that he would be
taken out of the program there soon after
July.

So, that's the basis for the show
cause. And, in essence he cannot complete
the detention center.

"Although the power of the court to revoke a suspended

sentence granted by . . . [Code § 19.2-306] is broad, it is not

without limitation." Duff v. Commonwealth, 16 Va. App. 293,

297, 429 S.E.2d 465, 467 (1993). By well established rules of

decision "'[t]he cause deemed by the court to be sufficient for

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revoking a suspension must be a reasonable cause.'" Id. Thus,

we have held that "a reasonable failure to [conform to the

condition of the suspension] negates a reasonable cause to

revoke a suspended sentence." Id. at 298, 429 S.E.2d at 467.

The dispositive issue is whether, based on the information

before the trial judge, Code § 19.2-316.2 permitted revocation

of the suspended sentence or whether revocation was otherwise

authorized under Code § 19.2-306, the general statute for

revoking probation and suspended sentences. I believe those

statutes did not authorize the revocation of the sentence. When

the trial judge convicted and sentenced Word for non-violent

felonies, the judge intended to impose upon Word confinement in

a regimented environment with a structured program between his

active incarceration and his release into the community. The

Detention Center is for non-violent offenders, such as Word, who

do not qualify for the Boot Camp Incarceration Program pursuant

to Code § 19.2-316.1, but nevertheless require structured

detention. The Detention Center determined that Word was

emotionally and physically suited to the program and could

benefit from it. When the program later determined not to

"accept" Word after the judge had ordered the placement, Word

had not been charged in that interval with any offense.

Code § 19.2-316.2(4) provides that "[u]pon a finding that

the defendant voluntarily withdrew from the program, was removed

from the program . . . for intractable behavior, or failed to
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comply with the terms and conditions of probation, the court may

revoke all or part of the probation and suspended sentence

. . . ." Word did not withdraw from the Detention Center and

was not removed for intractable behavior as defined by Code

§ 19.2-306.1. The crimes, which the prosecutor alleges the

federal authorities were investigating, preceded the term of

probation and suspended sentence and, thus, would not have been

a basis for revoking Word's suspended sentence. See Bailey v.

Commonwealth, 19 Va. App. 355, 357, 451 S.E.2d 686, 687 (1994)

(holding that "[t]he revocation of the suspended sentence . . .

must be based upon cause that occurred within the suspension or

probation period"). See also Code § 19.2-306; Preston v.

Commonwealth, 14 Va. App. 731, 419 S.E.2d 288 (1992). Indeed,

the prosecutor noted the Commonwealth had been investigating

these same events since 1993. At the 2001 sentencing

proceeding, however, these matters were not disclosed to the

trial judge as a reason to deny granting either the suspended

sentence or probation.

The trial judge did not find and the record does not

suggest that Word was unwilling or unable to conform his

behavior to that required to complete the program. See Code

§ 19.2-316.1 (defining "intractable behavior" in terms that

denote willful or obstinate conduct). Furthermore, no

provisions of Code §§ 19.2-316.2 or 19.2-316.1 require that a

person being considered for the program be disqualified due to
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ongoing criminal investigations. The Detention Center had

determined pursuant to Code § 19.2-316.2(A)(2) and (3) that Word

met the criteria for eligibility in the program, and the record

establishes no grounds for revocation of his suspended sentence.

Additionally, the prosecutor did not prove any violations of the

conditions of probation or of the requirements to be of good

behavior.

The record also does not establish that the Detention

Center had a policy which precluded Word's admission to the

program. Indeed, Word's attorney proffered that the supervisor

of the program told her the Detention Center's policies did not

bar Word's entry to the program. The prosecutor concurred in

that representation in the following colloquy:

[PROSECUTOR]: That seems to confirm my
conversation with him. When I initially
spoke with him I was just inquiring as to
their security at this facility. I mean, I
fully expected Mr. Word to go to the
detention center, and I was just concerned
that he was a flight risk and was inquiring
what the security was. When I mentioned
pending charges or the possibility of
pending charges -- and I guess I was
forceful, I guess, in my representation that
charges are coming -- it's more of, I guess,
a matter of getting the ducks in a row at
the federal level -- that seemed to peak his
interest, but it -- but I guess the counter
question from him was could I guarantee that
Mr. Word would complete the program. And
that seemed to be -- their biggest concern
was they didn't want someone that they knew
was most likely going to be taken out before
the completion of the program. And I don't
know if they have some sort of statistic
thing or --
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 [JUDGE]: Their funding is based on how many
people they get -- they get to complete the
program.

[PROSECUTOR]: I thought that might be the
issue, Your Honor.

[THE COURT]: That's their problem. They're
going to shy away from anybody they don't
think -- they're not pretty sure is going to
get through the program.

[PROSECUTOR]: I think that's -- maybe I was
too forceful in the representation that this
is coming . . . .

Thus, it is apparent from the record that Word continued to be

qualified for participation in the program. The Detention

Center, nevertheless, refused to accept custody of Word because

it was concerned about protecting its statistical profile. The

trial judge accepted that rationale, ruled that Word had

violated the terms of his suspended sentence, and did not

consider any alternatives but that of additional incarceration.

While our decision in Duff addressed probation violations

under Code § 19.2-305.1, specifically the failure to pay

restitution, the principles discussed in that opinion concerning

reasonableness apply generally. See also Code § 19.2-306;

Coffey v. Commonwealth, 209 Va. 760, 167 S.E.2d 343 (1969)

(holding that good behavior is an implicit condition of every

suspended sentence). "Where the evidence establishes that the

failure [to comply with the terms of a suspended sentence]

resulted from an inability to [perform] and not a willful

refusal, it is an abuse of discretion to automatically revoke
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the prior suspended sentence without considering reasonable

alternatives to imprisonment." Duff, 16 Va. App. at 298-99,

429 S.E.2d at 468. In the present case, the trial judge

acknowledged that the Detention Center's refusal to accept Word

was not due to willful misconduct by Word. Further, the trial

judge accepted the proffers and made no direct inquiry as to why

the Detention Center failed to accept Word after the Detention

Center had found him qualified and recommended the referral.

Simply put, the record indicates the revocation of the

suspended sentence was based on the fact that the Detention

Center did not receive from the prosecutor a "guarantee that

. . . Word would complete the program" and, thus, the Detention

Center declined to put at risk its statistical profile. The

trial judge exercised an arbitrary and unreasonable judgment in

accepting this rationale. "The discretion required is a

judicial discretion, the exercise of which 'implies

conscientious judgment, not arbitrary action.'" Hamilton v.

Commonwealth, 217 Va. 325, 327, 228 S.E.2d 555, 556 (1976)

(citation omitted). Under these circumstances, I would hold

that the trial judge abused his discretion in finding that Word

violated the terms and conditions of his suspended sentence and

in sentencing him to an additional term of incarceration.

For these reasons, I would reverse both the finding that

Word violated his probation and the order revoking the suspended

sentence.
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