COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Coleman
Argued at Richmond, Virginia
TYRONE ORLANDO PEYTON
OPINION BY
v. Record No. 0547-02-2 JUDGE ROSEMARIE ANNUNZIATA
AUGUST 26, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
Steven D. Benjamin (Betty Layne DesPortes;
Benjamin & DesPortes, P.C., on briefs), for
appellant.
Michael T. Judge, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
On appeal, Tyrone Orlando Peyton challenges the validity of
the revocation of his suspended sentence by the Circuit Court of
Henrico County. We find no error and affirm.
Facts
The material facts underlying this case are not in dispute.
On April 3, 2001, Peyton was convicted of possession of cocaine
with intent to distribute. On July 12, 2001, the trial court
sentenced him to 10 years in prison and suspended 7 years. The
trial court further ordered that Peyton be evaluated for
participation in an alternative sentencing program pursuant to
Code § 19.2-316.2. Peyton was accepted into the program, and
the trial court suspended the balance of his sentence on the
condition that he complete the program. On October 1, 2001, he
was transferred from local confinement to a detention center in
accordance with the alternative sentencing program.
In January 2002, Peyton began vomiting blood while at the
detention center and was taken to the hospital. He had
approximately one month remaining in the program. Peyton was
discharged from the detention center program on January 15, 2002
due to "medical/psychological reasons." In a show cause
proceeding on February 7, 2002, the trial court determined that
Peyton had violated the terms of his suspended sentence by not
completing the program and imposed the original three-year
active sentence, with credit for time served. The trial court
stated that Peyton's participation in the detention center
program "didn't work out."
Analysis
On appeal, Peyton argues the trial court abused its
discretion in revoking his suspended sentence, on the ground his
discharge from the detention center was not due to his willful
conduct or behavior. We find his contention without merit.
"A trial court has broad discretion to revoke a suspended
sentence and probation based on Code § 19.2-306, which allows a
court to do so 'for any cause deemed by it sufficient.' The
court's findings of fact and judgment will not be reversed
unless there is a clear showing of abuse of discretion." Davis
v. Commonwealth, 12 Va. App. 81, 86, 402 S.E.2d 684, 687 (1991)
- 2 -
(citations omitted). Furthermore, 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)).
Code § 19.2-316.2(A) authorizes courts to "consider[]"
committing certain non-violent felons to a detention center in
lieu of an active period of incarceration. 1 The detention
centers operate as part of the Department of Corrections,
pursuant to Code § 53.1-67.7. Code § 19.2-316.2(A)(2) requires
a prospective participant to meet certain physical and emotional
requirements as a condition for acceptance and participation in
the program. Satisfying these requirements is a prerequisite to
1
Code § 19.2-316.2(A) provides:
A defendant who otherwise would have been
sentenced to incarceration for a nonviolent
felony as defined in § 19.2-316.1 or who has
been previously incarcerated for a
nonviolent felony as defined in § 19.2-316.1
but otherwise meets the following criteria
and (i) who is determined by the court to
need more security or supervision than
provided by the diversion center
incarceration program under § 53.1-67.7,
(ii) whose age or physical condition
disqualifies him from the Boot Camp
Incarceration Program under § 53.1-67.1, and
(iii) who can benefit from a regimented
environment and structured program, may be
considered for commitment to a detention
center established under § 53.1-67.8 . . . .
- 3 -
the Department's recommendation that the trial court commit the
defendant to the program. 2 Code § 19.2-316.2(A)(4) further
provides: "Upon a finding that the defendant . . . was removed
from the program by the Department for intractable behavior
. . . the court may revoke all or a part of the probation and
suspended sentence . . . ." Code § 19.2-316.1 3 defines
"Intractable behavior," in part, as: "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[.]"
Applying these statutory provisions to the case at bar, we
find that the trial court did not abuse its discretion in
revoking Peyton's commitment to the detention center and his
2
Code § 19.2-316.2(A)(2) provides:
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.
3
Code § 19.2-316.1 specifically addresses the "Boot Camp
Incarceration Program" while § 19.2-316.2 addresses the
"Detention Center Incarceration Program." Both sections use the
phrase "intractable behavior," as a ground for removal from the
programs. The phrase is only defined in § 19.2-316.1. Thus, we
have cited to § 19.2-316.1 for purposes of defining "intractable
behavior," despite the fact that Peyton entered a detention
center program pursuant to § 19.2-316.2.
- 4 -
suspended sentence. Code § 19.2-316.1 does not provide that an
inmate's "unwillingness" to continue the program is the sole or
exclusive reason warranting removal from a detention center
program and the revocation of a suspended sentence pursuant to
Code § 19.2-316.2(A)(4). The Code also provides that an
inmate's "inability" to conform his behavior to program
requirements will justify his removal from the program and the
revocation of a suspended sentence. Code § 19.2-316.1.
Moreover, Code § 19.2-316.2(A)(2) provides that a "determination
that . . . [a] defendant is physically . . . suited for the
program" is a prerequisite to being recommended or accepted into
the program. When, subsequently, a defendant can no longer meet
the initial requirements for participation, and is no longer
"physically suited" for the detention program, neither the
program nor the court is required to continue him in the
program. Where, as here, participation in a detention center
program is a required condition under Code § 19.2-316.2(A) to
qualify a nonviolent felon for diversion in lieu of
incarceration, we find that the trial court did not abuse its
discretion in revoking the suspended sentence.
Peyton began vomiting blood in January 2002, while he was
in the program, and had to be taken to the hospital. When he
returned from the hospital, he continued to have abdominal pain.
Shortly thereafter, the Department of Corrections discharged him
from the detention center for "medical/psychological reasons."
- 5 -
From this evidence, the trial court concluded that the
Department of Corrections had determined Peyton no longer met
the physical requirements for participation in the program and,
thus, did not have the ability to conform his behavior to that
necessary to complete the program. The trial court acted within
its discretion under Code § 19.2-316.2(A) when it revoked
Peyton's suspended sentence.
Peyton relies on our holding in Duff v. Commonwealth, 16
Va. App. 293, 429 S.E.2d 465 (1993), to support his contention
that "if noncompliance [with the terms of the suspended
sentence] is not willful, revocation is unreasonable." Duff is
distinguishable from the case at bar because the suspended
sentence in Duff did not involve the application of express
statutory provisions establishing specific criteria to qualify
for diversion rather than incarceration. 4 Whether Code
§ 19.2-316.2(A)(4) requires willful conduct in order to justify
revocation of a suspended sentence was not at issue in Duff and
Peyton's reliance on it is, therefore, misplaced.
4
In Duff, the defendant was convicted of embezzlement and
received a partially suspended sentence, on the condition that
he make restitution payments. When he failed to comply with the
restitution condition, the trial court revoked his suspended
sentence. The evidence established that the defendant's failure
to make restitution payments resulted from various financial
setbacks and was not "willful." Accordingly, we reversed the
trial court's decision for abuse of discretion, on the ground
that the revocation was unreasonable. Duff, 16 Va. App. at 298,
429 S.E.2d at 468.
- 6 -
Peyton further argues that the trial court abused its
discretion in revoking the suspended sentence because the trial
court erroneously believed it was required to impose Peyton's
original sentence. We disagree with this contention. Assuming
the trial judge was unaware that he had the discretion to
continue the suspended sentence he earlier imposed, Peyton
explicitly informed him of that principle during the motion to
reconsider. After the trial court revoked Peyton's suspended
sentence, Peyton made a motion to reconsider, in which he
specifically stated to the court,
I wanted to make sure that I had done my job
and noted that he is before you with, or had
been before you with ten years suspended and
that this court had the power and the
jurisdiction not to impose any of that, not
to revoke any of that suspended sentence.
After hearing the motion, the trial judge stated, "[H]e gets the
three year sentence. That's plain and simple. Same as last
time . . . I don't have any different feeling about it." The
trial judge considered the argument and responded that his
decision remained the same. Thus, we find no abuse of
discretion.
For the foregoing reasons, we affirm.
Affirmed.
- 7 -
Benton, J., dissenting.
"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
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 evidence established that the trial judge suspended
Peyton's prison sentence for a non-violent crime on the
condition that he participate in an alternative detention
program. Peyton was accepted in the program and successfully
completed three months of the program. A month before he would
have finished the program, Peyton began to develop abdominal
pains and was discharged from the program. The trial judge
indicated it "sounds like ulcers." Although the trial judge
found that he did not question Peyton's sincerity or desire to
finish the program, he nevertheless revoked Peyton's suspended
sentence and ordered him to prison, noting "I don't think
there's anything I can do . . . it didn't work out."
The statute governing the detention program contains the
following proviso:
- 8 -
Upon the defendant's (i) voluntary
withdrawal from the program, (ii) removal
from the program by the Department for
intractable behavior as defined in
§ 19.2-316.1, or (iii) failure to comply
with the terms and conditions of probation,
the court shall cause the defendant to show
cause why his probation and suspension of
sentence should not be revoked. Upon 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
probation and suspended sentence and commit
the defendant as otherwise provided in this
chapter.
Code § 19.2-316.2(A)(4).
I would hold that the trial judge abused his discretion by
revoking the suspended sentence and ordering Peyton to prison.
The record does not establish the existence of any of the
statutory conditions that would support the revocation of the
suspended sentence. Peyton demonstrated neither intractable
behavior nor an unwillingness or refusal to finish the program.
In Duff, we reversed the trial judge's revocation of a
suspended sentence because the evidence proved that Duff's
"failure to pay the restitution resulted from an inability to
pay it rather than an unwillingness or refusal to do so." 16
Va. App. at 296, 429 S.E.2d at 466. We reasoned as follows:
[T]he trial court's determination that
Duff's failure to pay the restitution was
neither willful nor the result of
fraudulently secreting funds precludes a
determination that his failure to pay the
restitution was unreasonable. Rather, the
- 9 -
court's determination inexorably leads to
the conclusion that Duff simply did not have
the ability to pay the restitution.
Moreover, the evidence suggests and supports
no other determination. Under such facts,
we hold as a matter of law that the evidence
was insufficient to revoke the suspended
sentence and that the trial court, in so
doing, abused its discretion.
In reaching this result, we are not
unmindful of the conscientious concerns of
the trial judge for the victims of Duff's
crime, and for Duff, that are patently clear
from the record. We share the concern that
restitution should be completed within a
reasonable period of time. Nor do we mean
to suggest that Duff's current financial
situation prevents the trial court from
imposing alternate means of punishment upon
him. Rather, the court is required to
consider reasonable alternatives to
imprisonment and not merely to automatically
revoke the suspended sentence.
Id. at 298, 429 S.E.2d at 468.
Peyton's failure to finish the program resulted from a
medical inability to continue and was not the result of an
unwillingness or refusal to do so. This illness was not a
reasonable cause to revoke Peyton's suspended sentence. Code
§ 19.2-316.2 allows the judge to revoke all or part of the
suspended sentence if the defendant voluntarily withdraws, is
removed "for intractable behavior," or violates the terms of
probation. The majority, however, upholds the trial judge's
decision and cites Peyton's physical illness as the event that
deprived him of "the ability to conform his behavior to that
necessary to complete the program." Simply put, the connection
- 10 -
between vomiting blood and "intractable behavior" is tenuous and
unconvincing.
The majority further reasons that the trial judge's
revocation was not an abuse of discretion because being
"physically suited" is a prerequisite for acceptance into the
program. There is a clear distinction, however, between the
terms of acceptance into the program and cause for removal from
the program. The majority blurs the distinction and
incorporates one into the other. The statute does not equate
"intractable behavior" with a person's failure to complete the
program through illness or a lack of individual fault. Code
§ 19.2-316.1 defines "Intractable behavior" in terms that denote
willful or obstinate conduct.
As in Duff, I would reverse the trial judge's revocation of
the suspended sentence and remand to consider reasonable
alternatives to imprisonment.
- 11 -