COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Clements
Argued at Richmond, Virginia
THOMAS HORACE ALSBERRY
OPINION BY
v. Record No. 0826-01-4 JUDGE JEAN HARRISON CLEMENTS
DECEMBER 3, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY
Dennis L. Hupp, Judge
S. Jane Chittom, Appellate Defender (Public
Defender Commission, on brief), for
appellant.
Eugene Murphy, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Thomas Horace Alsberry appeals from a judgment of the trial
court revoking his previously suspended sentence. On appeal, he
contends the trial court erred (1) in refusing his request for a
mental evaluation prior to sentencing him for his probation
violation and (2) in imposing all of his previously suspended
sentence, in excess of twenty-four years, for two misdemeanor
probation violations. Finding no error, we affirm the judgment of
the trial court.
On January 12, 1995, Alsberry was convicted of animate object
sexual penetration and three counts of breaking and entering. He
was sentenced to thirty years' imprisonment, with twenty-five of
those years suspended on the condition he successfully complete
five years of supervised probation upon his release. 1 In October
of 1997, Alsberry was released from incarceration and placed on
probation.
On May 27, 1998, Alsberry was found to have violated his
probation for failing to maintain his registration as a sex
offender and was ordered to serve an additional six months of the
previously suspended sentence. On June 9, 1999, Alsberry was
again found to be in violation of his probation for "hiding out in
the nurses' locker room of the hospital." He was consequently
required to serve an additional twelve months of the earlier
suspended sentence. On November 15, 2000, Alsberry was found to
have violated his probation for failing to maintain a stable
residence. He was released with credit given against the
suspended sentence of fifteen days for time served.
On January 19, 2001, Alsberry was arrested and charged with
misdemeanor destruction of private property and "being a Peeping
Tom." The general district court convicted him of those offenses
and sentenced him to serve twelve months and thirty days in jail.
Following his arrest on those charges, the Commonwealth
commenced the present probation revocation proceedings in the
circuit court. After the presentation of evidence at the
revocation hearing on March 1, 2001, Alsberry's attorney "ask[ed]
1
Alsberry was sentenced to ten years for his conviction of
animate object sexual penetration. The five years served were
for this offense.
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the court for a psychological evaluation [of Alsberry], and an
opportunity to place Mr. Alsberry back on probation." Finding
Alsberry had violated his probation, the trial court revoked his
probation and ordered him to serve the entire balance of his
previously suspended sentence, a total of twenty-four years and
five and one-half months.
On appeal, Alsberry contends the decision whether to order a
mental evaluation before sentencing pursuant to Code § 19.2-300 is
not discretionary. Because his animate object penetration
conviction, one of the convictions for which he was originally
sentenced, and his "Peeping Tom" conviction, upon which his
probation revocation was partly based, were both convictions
indicating sexual abnormality, he was explicitly entitled, he
argues, to an evaluation. Therefore, he contends, the trial court
erred, as a matter of law, in refusing his request for a mental
evaluation before sentencing him for his probation violation.
"[A] trial court 'by definition abuses its discretion when it
makes an error of law.'" Shooltz v. Shooltz, 27 Va. App. 264,
271, 498 S.E.2d 437, 441 (1998) (quoting Koon v. United States,
518 U.S. 81, 100 (1996)). "In determining whether the trial court
made an error of law, 'we review the trial court's statutory
interpretations and legal conclusions de novo.'" Rollins v.
Commonwealth, 37 Va. App. 73, 79, 554 S.E.2d 99, 102 (2001)
(quoting Timbers v Commonwealth, 28 Va. App. 187, 193, 503 S.E.2d
233, 236 (1998)).
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Code § 19.2-300 provides as follows:
In the case of the conviction in any
circuit court of any person for any criminal
offense which indicates sexual abnormality,
the trial judge may on his own initiative, or
shall upon application of the attorney for
the Commonwealth, the defendant, or counsel
for the defendant or other person acting for
the defendant, defer sentence until the
report of a mental examination conducted as
provided in § 19.2-301 of the defendant can
be secured to guide the judge in determining
what disposition shall be made of the
defendant. 2
Accordingly, Alsberry is correct in asserting the decision
to order a mental examination under Code § 19.2-300 is not
discretionary when a defendant who has been convicted of an
offense indicating sexual abnormality requests such an evaluation
prior to sentencing for that conviction. See Simerly v.
Commonwealth, 29 Va. App. 710, 717, 514 S.E.2d 387, 391 (1999).
However, we do not agree with Alsberry that the trial court was
required to order a mental examination before revoking the
suspended portion of his previously imposed sentence for violating
the terms of his probation.
Although a probation revocation hearing is a criminal
proceeding, it is not "a stage of a criminal prosecution." Green
v. Commonwealth, 263 Va. 191, 195-96, 557 S.E.2d 230, 233 (2002).
2
The Commonwealth does not contest Alsberry's claim that
his "Peeping Tom" and animate object sexual penetration
convictions indicate sexual abnormality. Thus, for purposes of
this appeal, we will assume, without deciding, that both
offenses fall within Code § 19.2-300's purview.
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Likewise, "[a] probation violation is not itself a criminal
conviction." Merritt v. Commonwealth, 32 Va. App. 506, 509, 528
S.E.2d 743, 744 (2000). Rather, a "[r]evocation of probation is
merely a modification of the sentence" imposed for a prior
conviction. Id. at 508, 528 S.E.2d at 744. Hence, the 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.
Here, Alsberry was convicted on January 12, 1995, of several
criminal offenses, including animate object sexual penetration.
For those crimes, he was sentenced to thirty years' imprisonment,
twenty-five years of which were suspended. On March 1, 2001,
having found Alsberry to be in violation of the terms and
conditions of his probation, based in part on his "Peeping Tom"
conviction, the trial court revoked Alsberry's suspended sentence
and ordered him to serve the remainder of his original sentence.
Accordingly, in revoking the previously suspended sentence
and ordering Alsberry to serve the balance of that sentence, the
trial court was not sentencing him on the animate object sexual
penetration or "Peeping Tom" convictions. The sentences for those
convictions had already been imposed pursuant to the respective
criminal prosecutions of those offenses. Rather, the trial court
was merely "modifying" the sentence previously imposed on Alsberry
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for his 1995 convictions. Thus, the trial court was not required
under Code § 19.2-300 to grant Alsberry's request for a mental
examination before revoking his suspended sentence due to the
probation violation. We hold, therefore, that the trial court did
not err, as a matter of law, in refusing to order a mental
examination.
Alsberry also contends, in the alternative, that, given the
circumstances of this case, the trial court's refusal to order a
mental examination constituted an abuse of discretion. We
disagree.
In discussing, in Simerly, the underlying purpose of Code
§ 19.2-300, we quoted from a report to the governor and
legislature which stated that "'[t]he hope . . . of reducing the
number of serious sex crimes lies in a proper psychiatric
screening of the potential criminal at the stage where abnormal
behavior first comes to light.'" 29 Va. App. at 715 n.2, 514
S.E.2d at 390 n.2 (emphasis added) (quoting Commission to Study
Sex Offenses, The Sex Offender and the Criminal Law, S. 18, at 6
(1951)). In this case, Alsberry had the opportunity to request a
mental examination pursuant to Code § 19.2-300 prior to his
sentencing in 1995 for the animate object sexual penetration
conviction, but did not. We find nothing in the record that
convinces us that the trial court abused its discretion in denying
Alsberry's psychological evaluation request, which was made during
the hearing on his fourth probation violation, more than six years
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after Alsberry's abnormal behavior first came to light and the
original sentence was imposed.
Alsberry also contends the trial court abused its discretion
in imposing all of his previously suspended sentence for two
misdemeanor probation violations. 3 Again, we disagree.
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. Russnak v. Commonwealth, 10 Va. App. 317, 321, 392 S.E.2d
491, 493 (1990). "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.'" 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. 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 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
3
Alsberry does not challenge the sufficiency of the
evidence to sustain the order of revocation. He challenges only
the extent of punishment imposed.
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S.E.2d 270, 273, (1960) (quoting Slayton v. Commonwealth, 185
Va. 357, 367, 38 S.E.2d 479, 484 (1946))).
We are further mindful that, when a defendant violates the
terms of his probation, "the act of grace in granting probation
in the first place is rendered a nullity." Rease v.
Commonwealth, 227 Va. 289, 294-95, 316 S.E.2d 148, 151 (1984).
Thus, upon revocation of the suspended sentence, the defendant
is punished in accordance with a previously imposed sentence not
for the conduct prompting the revocation but for his commission
of the original crime. See United States v. Woodrup, 86 F.3d
359, 362 (4th Cir. 1996).
Here, the evidence is uncontroverted that Alsberry violated
the conditions of his probation on January 19, 2001, by
committing the misdemeanor destruction of private property and
"Peeping Tom" offenses. It was Alsberry's fourth violation of
probation in less than four years. His other violations
included failure to maintain his registration as a sex offender
and hiding in the nurses' locker room at a hospital.
Moreover, there is no question that the original offenses
of animate object sexual penetration and three counts of breaking
and entering warranted the sentence previously imposed for those
convictions. Furthermore, Alsberry's probation officer
testified at the revocation hearing that, on the evening before
the January 19, 2001 offenses, Alsberry left counseling "in a
very agitated state," commenting that, "if anybody was to accuse
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him of being a sex-offender, . . . he would kill them."
According to the probation officer, Alsberry was in "an
activated state, which means that he [was] on the verge of
re-offending." The probation officer further testified that,
after the charges had been placed, "Mr. Alsberry was activated
and, as a consequence, was very dangerous."
The trial judge, in rendering his decision, reviewed
Alsberry's entire criminal record, including two prior
convictions for indecent exposure. After conducting that
review, the trial judge told Alsberry:
I have told you repeatedly during this
process that you worry me. You worry me
because of your prior sexual misconduct, and
the continuing sexual misconduct that I see.
Well, I am not going to worry about you
[anymore]. I am going to put you where I
don't have to worry about you.
The trial court then revoked Alsberry's suspended sentence and
ordered him to serve the entire previously imposed sentence.
Upon our review of the record, we conclude the trial court
had sufficient cause to revoke Alsberry's suspended sentence.
Despite the trial court's numerous efforts to allow him the
opportunity to avoid serving the previously imposed sentence for
the serious 1995 offenses by simply behaving properly, Alsberry
failed to do so. Thus, in light of the grievous nature of
Alsberry's 1995 offenses and his continuing criminal activity,
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we hold the trial court did not abuse its discretion in imposing
the previously suspended sentence in its entirety.
Accordingly, we affirm the judgment of the trial court.
Affirmed.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
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