THE COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Agee
Argued at Chesapeake, Virginia
COREY VERNELL OLIVER
OPINION BY
v. Record No. 1884-01-2 JUDGE ROBERT J. HUMPHREYS
AUGUST 27, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY
Thomas V. Warren, Judge
William R. Blandford, Jr. (Blandford,
Carrico & Newlon, P.C., on brief), for
appellant.
Kathleen B. Martin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Corey Vernell Oliver appeals the revocation of his suspended
sentence for distribution of imitation cocaine. Oliver contends
the trial court abused its discretion in revoking his suspended
sentence, based upon an act committed by Oliver prior to his
December 20, 2000 sentencing for the offense. For the reasons
that follow, we reverse and remand.
Oliver committed the offense of distributing imitation
cocaine on January 13, 2000. While on bond and awaiting trial for
this offense, Oliver committed an attempted malicious wounding on
October 25, 2000. On December 20, 2000, Oliver entered into a
written plea agreement with the Commonwealth, which stated the
"parties agree[d] that the appropriate disposition of this matter
[was] two (2) years suspended condition [sic] serve 30 days
supervised probation [sic] $250 fine." It appears from the record
that the court sentenced Oliver immediately, and no pre-sentence
report was requested by either Oliver or the trial court, as
permitted by Code § 19.2-299(A). The trial court thus sentenced
Oliver to serve two years in prison, with one year and eleven
months suspended.
On April 18, 2001, Oliver was convicted and sentenced for the
malicious wounding charge, as well as a related use of a firearm
charge. The trial court sentenced him to serve thirteen years in
prison, with nine years suspended. During the April 18 trial, the
Commonwealth notified the trial court of the December 20 drug
conviction, and the court sua sponte issued a show cause to revoke
the suspended sentence imposed on December 20, 2000. The grounds
for the show cause order were stated as "failing to abide by the
terms of probation." After the hearing on the show cause on June
25, 2001, the trial court revoked Oliver's suspended sentence
finding:
When you were in Court and you were
convicted of distribution of imitation
cocaine, you could have gotten a lot more
time than you got. You only got one month
to serve. And before you're even sentenced
for it, you're out riding around like a
[vigilante] in Blackstone shooting a gun.
And it's not going to happen that the Court
just ignores that. . . . The time that was
heretofore suspended is now revoked and is
added to the time you're serving, which will
be one year and eleven months plus the time
that you're serving now.
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On appeal, Oliver contends that the trial court erred in
revoking his suspended sentence, as he committed the malicious
wounding and related firearm offense before the trial court
imposed the suspended sentence and probation for the drug charge.
We agree.
The Commonwealth contends Oliver failed to raise the specific
argument concerning the timing of the malicious wounding offense
at trial. We agree. Accordingly, his appellate contention is
procedurally barred pursuant to Rule 5A:18, unless he has shown
"good cause" or that the "ends of justice" require our review.1
While Oliver has not shown "good cause," we find that Oliver has
made an affirmative showing that a miscarriage of justice has
occurred in this matter, as there is no evidence in the record
that Oliver committed a violation which would render his suspended
sentence and probation subject to revocation. Therefore, we
consider Oliver's appeal under the "ends of justice" exception to
Rule 5A:18. 2 "
[U]nder Virginia law, once a defendant receives a suspended
sentence, a judge's power to revoke the suspension of sentence and
probation is governed by statute." 3 "These statutes
1
See Rule 5A:18.
2
See Redman v. Commonwealth, 25 Va. App. 215, 221, 487
S.E.2d 269, 272 (1997).
3
Carbaugh v. Commonwealth, 19 Va. App. 119, 123, 449 S.E.2d
264, 266 (1994) (citing Grant v. Commonwealth, 223 Va. 680, 684,
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obviously confer upon trial courts 'wide latitude' and much
'discretion in matters of suspension and probation . . . to
provide a remedial tool . . . in the rehabilitation of criminals'
and, to that end, 'should be liberally construed.'"4 Code
§ 19.2-306 provides as follows, in relevant part:
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, or
if neither, within the maximum period for
which the defendant might originally have
been sentenced to be imprisoned, 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, or if no probation
period has been prescribed then within one
year after the period of suspension fixed by
the court, or if neither a probation period
nor a period of suspension has been
prescribed then within one year after the
maximum period for which the defendant might
originally have been sentenced to be
imprisoned, whereupon, in case the
imposition of sentence has been suspended,
the court may pronounce whatever sentence
might have been originally imposed.
Despite the wide latitude granted to trial courts in revoking
a suspended sentence and probation, the language of Code
§ 19.2-306 clearly specifies the periods in which the events
292 S.E.2d 348, 350 (1982); Dyke v. Commonwealth, 193 Va. 478,
479, 69 S.E.2d 483, 484 (1952)).
4
Deal v. Commonwealth, 15 Va. App. 157, 160, 421 S.E.2d
897, 899 (1992) (quoting Nuckoles v. Commonwealth, 12 Va. App.
1083, 1085-86, 407 S.E.2d 355, 356 (1991); Dyke, 193 Va. at 484,
69 S.E.2d at 486.
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amounting to cause for revocation must occur in order for a judge
to properly revoke a suspended sentence. 5 Specifically, the
statute expressly states that the judge may revoke suspension of
sentence and probation for any sufficient cause that "occurred at
any time within" the specified periods.6 It logically follows
then that "[g]enerally, where the suspension is conditioned upon
future good conduct," as it was here, "the revocation of the
suspension must be predicated upon a showing of conduct which
occurs subsequent to the imposition of the suspended sentence."7
However, as the Commonwealth points out, "[d]eceit,
untruthfulness and deception at the time of the sentencing are
always grounds for revoking a suspended sentence." 8 Moreover,
"[t]here is 'significant authority for the proposition that a
trial court has the discretion to revoke probation if information
is discovered which, had it been known at the time of sentencing,
would have led the trial court to deny probation,'" if the
information at issue was in some way misrepresented and/or
concealed by the defendant. 9
5
Code § 19.2-306.
6
Id.
7
Bryce v. Commonwealth, 13 Va. App. 589, 590-91, 414 S.E.2d
417, 418 (1992).
8
Cottrell v. Commonwealth, 12 Va. App. 570, 574, 405 S.E.2d
438, 441 (1991).
9
Id. (citing State v. Darrin, 325 N.W.2d 110, 113 (Iowa
1982); Annotation: Revocation of Probation Based on Defendant's
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Nevertheless, although the record here indicates that the
trial judge, at the time of sentencing, was unaware of Oliver's
pending charges, nothing in the record indicates that the trial
judge's lack of awareness was attributable to any "deceit,
untruthfulness [or] deception" on the part of Oliver. Indeed, as
stated above, Oliver was sentenced immediately upon the trial
court's acceptance of a plea agreement which stipulated that both
the Commonwealth and Oliver considered the agreed sentence
appropriate under the circumstances. Furthermore, since the same
prosecutor represented the Commonwealth in both cases, the
Commonwealth was clearly aware of the charges, which had been
pending against Morris in the same jurisdiction for approximately
two months, when the Commonwealth agreed that the sentence was
appropriate. Accordingly, the Commonwealth's fraud argument lacks
merit on its face. 10
We find that the trial judge erred in considering the
offenses that occurred prior to sentencing as a basis to revoke
Oliver's suspended sentence and probation. Thus, we reverse and
remand with directions to the trial court to vacate its order
Misrepresentation or Concealment of Information From Trial
Court, 36 A.L.R.4th 1175 (1985)).
10
See Fisher v. Commonwealth, 236 Va. 403, 417, 374 S.E.2d
46, 54 (1988) ("No litigant, even a [party] in a criminal case,
will be permitted to approbate and reprobate - to invite
error, . . . and then to take advantage of the situation created
by his own wrong.").
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revoking Oliver's suspended sentence and probation, and to
reinstate the same.
Reversed and remanded.
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