COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Elder and
Senior Judge Hodges
Argued at Salem, Virginia
CHARLES STEVE ALLISON
OPINION BY
v. Record No. 2498-01-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
APRIL 29, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Clifford R. Weckstein, Judge
John P. Varney (Office of the Public
Defender, on brief), for appellant.
Paul C. Galanides, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Charles Steve Allison (appellant) appeals the trial court's
decision to revoke his probation and impose twelve months of a
previously suspended sentence. Appellant contends the trial court
erred in finding he absconded and as a result revoked his
probation more than one year after the probation period ended in
violation of Code § 19.2-306. Finding no error, we affirm.
I. BACKGROUND
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party below, granting to that evidence all
reasonable inferences fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
On June 23, 1998, appellant was convicted of possession of
cocaine and sentenced to 2 years incarceration with 20 months
suspended and one year of probation upon release. Appellant's one
year of probation began October 9, 1998. Appellant signed his
conditions of probation form on October 20, 1998. Those
conditions of probation included, inter alia, appellant's
agreement to obey all federal, state and local laws and
ordinances; report any arrests, including traffic tickets, within
three days to the probation officer; report in person, by
telephone, and as otherwise instructed by the probation officer;
not change his residence without the permission of the probation
officer nor leave the Commonwealth of Virginia or travel outside
of a designated area without permission of the probation officer,
and condition 11 which specifically stated he would be considered
an absconder when his whereabouts were no longer known to his
supervising officer.
Initially, he met with his probation officer, Michael Smith
(Smith), as required; however, he failed to meet with him after
December 16, 1998. In February, 1999, Smith attempted to contact
appellant at his last known address and was unable to do so.
Appellant had numerous criminal charges filed against him during
the time he failed to contact his probation officer. On January
8, 1999 appellant was charged with assault and battery and
malicious wounding. On March 9, 1999, he failed to appear on
those charges in the Juvenile and Domestic Relations District
Court of Roanoke City, and a capias was issued. He was convicted
of two counts of assault and battery and for failure to appear on
June 4, 2001. Smith also later determined that appellant was
charged with first-degree battery in Arkansas sometime between
December 16, 1998 and April 2001. On June 14, 2001 the
- 2 -
Commonwealth filed a motion to revoke appellant's suspended
sentence, and on June 22, 2001 the trial court revoked twelve
months of appellant's suspended sentence.
At the close of the Commonwealth's case at the revocation
hearing, appellant moved to strike stating:
I'm not sure what the definition of
absconding is but I don't think this is it.
This probation statute says "In the event
any person placed on probation shall leave
the jurisdiction of the court without the
consent of a judge or having obtained leave
to remove to another locality violated any
of the terms of this probation, he may be
apprehended and returned to the court and
dealt with as provided.["] But I'm not sure
that's a tolling cause or not. But if it is
a tolling cause and if that's the provision
by which the Commonwealth wants to take
advantage of, there's no proof that he left
the jurisdiction of the court.
The trial court overruled the motion to strike and found the
"language [appellant] just discussed . . . manifestly applies to a
person who absents himself." Appellant presented no evidence, and
the trial court stated:
I am satisfied beyond any doubt that during
the probation period [appellant] violated
the conditions of probation and suspended
sentence. In light of the case law holding
such as it is, I am of [the] opinion that
[appellant] cannot afford himself the
benefit of that period of time during which
he was not in contact with his probation
officer. And I find that he has violated
the conditions of suspended sentence and
probation.
Appellant appeals from that decision.
II. ANALYSIS
- 3 -
Appellant contends that the trial court abused its discretion
by revoking his suspended sentence more than one year after his
period of probation expired. Appellant argues that the evidence
failed to show he "absconded" and, thus, the tolling provisions of
Code § 19.2-306 did not apply. We disagree and affirm the trial
court.
Code § 19.2-306 provides:
The court may, for any cause deemed by
it sufficient which occurred at any time
within the probation period, or if none,
within the period of suspension fixed by the
court . . . revoke the suspension of
sentence and any probation, if the defendant
be on probation, and cause the defendant to
be arrested and brought before the court at
any time within one year after the probation
period . . . . In the event that any person
placed on probation shall leave the
jurisdiction of the court without the
consent of the judge, or having obtained
leave to remove to another locality violates
any of the terms of his probation, he may be
apprehended and returned to the court and
dealt with as provided above. 1
"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, 686 (1991)
(citations omitted).
"The cause deemed by the court to be
sufficient for revoking a suspension must be
reasonable cause. The sufficiency of the
evidence to sustain an order of revocation
1
Code § 19.2-306 was amended in 2002.
- 4 -
'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 discretion.' 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) (quoting Marshall v. Commonwealth, 202 Va. 217, 220, 116
S.E.2d 270, 273 (1960) (quoting Slayton v. Commonwealth, 185 Va.
357, 367, 38 S.E.2d 479, 484 (1946))).
In the instant case, appellant signed his conditions of
probation on October 20, 1998. Condition 11 clearly defines
"absconding" from supervision. "I understand I will be considered
an absconder when my whereabouts are no longer known to my
supervising officer." This triggering event began shortly after
appellant last met with his probation officer in December 1998 and
could not thereafter be located. Appellant left the
"jurisdiction" of the court when he made his whereabouts unknown
to Smith. There is no requirement that appellant leave the state
to engage the tolling provision. However, even if this was a
requirement, the evidence proved that during the period of time
appellant was not in contact with Smith, he was arrested in
Arkansas where he was charged with assault and battery. This
evidence is uncontroverted. "[W]hen [appellant], due to his own
conduct, is no longer under [the broad control of the court and
the direct supervision of the court's probation officer], the act
of grace in granting probation in the first place is rendered a
nullity." Rease v. Commonwealth, 227 Va. 289, 295, 316 S.E.2d
148, 151 (1984).
- 5 -
Under Code § 19.2-306, the circuit court retained
jurisdiction over the suspended portion of appellant's sentence
during the one-year period of his probation and for one year
thereafter. Thus, the circuit court had jurisdiction to revoke
appellant's suspended sentence October 9, 1998 through October
9, 2000. However, appellant's failure to maintain contact with
his probation officer after December 1998 and his additional
out-of-state charges proved that he absconded from probation
supervision and the jurisdiction of the trial court. Thus, the
tolling provisions of Code § 19.2-306 were triggered, and the
trial court did not err when it revoked appellant's probation on
June 22, 2001.
Accordingly, we affirm the judgment of the trial court.
Affirmed.
- 6 -