COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Annunziata
Argued at Richmond, Virginia
TIMOTHY ALAN PEARSON, SR.
OPINION BY
v. Record No. 2233-00-2 JUDGE LARRY G. ELDER
MARCH 5, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Michael C. Allen, Judge
William B. Bray (Perry & Bray, on brief), for
appellant.
Jennifer R. Franklin, Assistant Attorney
General (Mark L. Earley, Attorney General;
Shelly R. James, Assistant Attorney General,
on brief), for appellee.
Timothy A. Pearson, Sr. (appellant) appeals from an order
revoking a portion of his previously suspended sentence for a
statutory burglary conviction. 1 On appeal, he contends the court
erroneously allowed the Commonwealth's attorney to cross-examine
appellant's fiancée about her knowledge of his prior record and
erroneously admitted that prior record into evidence. We
disagree and affirm the court's revocation of four years of
appellant's suspended sentence.
1
Jurisdiction over the appeal of an order revoking a
previously suspended sentence "lies within the Court of Appeals'
jurisdiction under Code § 17.1-406(A)." Green v. Commonwealth,
___ Va. ___, ___, 557 S.E.2d 230, ___ (2002).
I.
BACKGROUND
In 1997, appellant was convicted of two counts of statutory
burglary and two counts of grand larceny. The circuit court
sentenced appellant to serve five years for each of the burglary
convictions and twelve months for each of the larceny
convictions. Conditioned upon appellant's good behavior for
twenty years, the court suspended the sentences for both grand
larceny convictions, and it suspended four years for one of the
burglary convictions and four years six months for the other
burglary conviction.
On April 6, 2000, appellant was convicted for misdemeanor
distribution of marijuana. Based on that conviction, the
circuit court issued an order to appellant to show cause as to
"why the suspended sentences previously imposed should not be
revoked."
At the show cause hearing, the Commonwealth introduced a
certified copy of the marijuana distribution conviction and
rested. Appellant then introduced a letter indicating he had
entered a drug treatment program, and he offered the testimony
of his fiancée, Jennifer Marshall. Marshall testified on direct
examination that she had known appellant for over two years,
that he was gainfully employed and helped support her and her
son, as well as his own three children, and that he was like a
father to her son, whom he planned to adopt.
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On cross-examination, the Commonwealth asked Marshall,
without objection, whether appellant was truthful with her, and
she responded, "Yes." The Commonwealth then asked Marshall,
over appellant's objection, whether appellant had told her about
each of his multiple previous convictions. Appellant argued
that the Commonwealth's line of questioning was "not
impeachment. [Appellant] is not testifying to be impeached.
The Commonwealth has the evidence. I think they can get it out
some way perhaps, but this witness may not, it may not be proper
foundation for her to say exactly what his record may be." The
court responded, "Well, the question is whether he confided that
or acknowledged that to her. I'll allow it."
Marshall testified that she was not aware of appellant's
1986 conviction for misdemeanor larceny or his 1987 convictions
for contributing to the delinquency of a minor, grand larceny
and merchandise concealment. She testified that she was aware
of his 1990 convictions for carrying a concealed weapon; his
1992 conviction for grand larceny; assault; his 1994 conviction
for felony concealment; his 1995 convictions for two counts of
domestic assault and one count of contributing to the
delinquency of a minor; his 1996 conviction for assault and
battery; and his 1997 conviction for grand larceny. She
indicated that the domestic and other assault convictions did
not involve her.
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The Commonwealth's attorney offered into evidence, over
appellant's objection, "a copy of the defendant's presentence
report which has all the prior convictions that were alluded to
in cross-examination." Appellant argued, "[W]e're here on the
show cause that relates to a specific violation, and I think
that is the matter before the Court, not his entire history."
The trial court ruled that appellant's prior record was relevant
and allowed it into evidence. Appellant was allowed to review
the report for accuracy and indicated that he had "no further
objection to it."
In argument, appellant averred that "all of that record,
except for something of no disposition, shows what occurred
before [appellant] was sentenced on the burglary and grand
larceny charges that are the subject of this show cause." The
Commonwealth's attorney argued as follows:
Judge, obviously [appellant's] counsel
fights to have [appellant's] record kept
out, but obviously the Court has to take
that into account at this point in time.
His convictions run all over the gamut;
Domestic assault, other assaults,
contributing charges, drug charges, larceny
charges, B&E charges. And, Judge, this is
the kind of person that needs to be locked
up, because, apparently, for the last 14
years he's decided that all he's going to do
is commit crimes. He has two more charges
pending in Powhatan, one of them a
felony. . . . [W]e would ask the Court to
impose a sentence of five years for the
violation.
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The trial court observed that "in the original sentencing
order the Court must have taken into account [appellant's]
previous record" but held "it's relevant here [also]. The
bottom line is that I have before me a demonstration of someone
who, for whatever reason, has been [un]able to comport his
behavior with the law, and . . . the Court has no choice but to
revoke a significant period of [appellant's] suspended
sentence." The trial court then revoked the four-year suspended
sentence for burglary and re-suspended the time on the remaining
three 1997 convictions.
II.
ANALYSIS
"A trial court has broad discretion to revoke a suspended
sentence and probation based on Code § 19.2-306." Davis v.
Commonwealth, 12 Va. App. 81, 86, 402 S.E.2d 684, 687 (1991).
It may do so "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." Code
§ 19.2-306. "The court's . . . judgment will not be reversed
unless there is a clear showing of abuse of discretion." Davis,
12 Va. App. at 86, 402 S.E.2d at 687.
"[I]n revocation hearings 'formal procedures and rules of
evidence are not employed,'" id. at 84, 402 S.E.2d at 686
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(quoting Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756,
1759, 36 L. Ed. 2d 656 (1973)), and "the process of revocation
hearings 'should be flexible enough to consider evidence . . .
that would not be admissible in an adversary criminal trial,'"
id. (quoting Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct.
2593, 2604, 33 L. Ed. 2d 484 (1972)).
"By statute, evidence of [a] defendant's record of prior
criminal convictions is admissible at sentencing. Evidence of
the sentences imposed on those convictions is also admissible."
Merritt v. Commonwealth, 32 Va. App. 506, 508, 528 S.E.2d 743,
744 (2000). Because "[r]evocation of probation is merely a
modification of the sentence," id., evidence of a probation
violation is "admissible [in a sentencing hearing] as part of
the sentence imposed for the prior conviction," id. at 509, 528
S.E.2d at 744. "'This rationale serves the declared purposes of
punishment for criminal conduct. "[T]he sentencing decision
. . . is a quest for a sentence that best effectuates the
criminal justice system's goals of deterrence (general and
specific), incapacitation, retribution and rehabilitation."'"
Id. at 508, 528 S.E.2d at 744 (quoting Gilliam v. Commonwealth,
21 Va. App. 519, 524, 465 S.E.2d 592, 594-95 (1996) (quoting
United States v. Morris, 837 F. Supp. 726, 729 (E.D. Va.
1993))). Because revocation of probation is "a continuation and
part of the sentencing process," id., it follows that evidence
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of a defendant's prior criminal convictions is also relevant and
admissible in revocation proceedings.
Here, appellant's criminal history did not provide a basis
for revocation of the suspension because none of the offenses
contained therein occurred "within the probation period,"
"within the period of suspension fixed by the court," or "within
the maximum period for which the defendant might originally have
been sentenced to be imprisoned." Code § 19.2-306. However,
the marijuana distribution offense for which appellant was
convicted on April 6, 2000, occurred during the period of
suspension and, thus, did provide a basis for revocation.
Appellant's entire criminal history was relevant to the court's
determination of the appropriate "sentence" for that violation,
i.e., how much of the suspension to revoke. Therefore,
appellant's past criminal record was properly admitted for
consideration in the instant probation revocation proceeding,
regardless of whether the court considered appellant's record
when it originally sentenced him for the burglary offense.
Appellant's criminal history was as relevant in determining how
much of the suspended sentence to impose as it was in
determining the original sentence and suspension.
In addition, appellant's fiancée testified at the
revocation hearing that appellant was a good parent and de facto
stepparent. The Commonwealth's cross-examination of Marshall
concerning her knowledge of appellant's extensive criminal past
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explored the nature of the relationship between the witness and
appellant and whether appellant had been forthcoming with her
concerning his past. Assuming without deciding it was error to
allow the Commonwealth to cross-examine Marshall about
appellant's prior criminal convictions without laying a proper
foundation, the subsequent proper admission of evidence of these
convictions through an earlier presentence report rendered any
error harmless. See e.g. Hooker v. Commonwealth, 14 Va. App.
454, 457-58, 418 S.E.2d 343, 345-46 (1992). Accordingly, the
trial court did not abuse its discretion in admitting into
evidence appellant's prior criminal record, and the trial
court's allowing the Commonwealth to cross-examine Marshall
concerning her knowledge of appellant's criminal history, if
error, was harmless.
In sum, appellant has failed to demonstrate that the trial
court abused its discretion in revoking the suspended sentence.
The evidence is uncontroverted that appellant violated the
conditions of suspension by committing a misdemeanor offense.
Thus, the record establishes that the court had sufficient cause
to revoke the suspension of the remaining four years of
appellant's sentence for statutory burglary.
For these reasons, we affirm the ruling of the trial court.
Affirmed.
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