Timothy Alan Pearson, Sr. v. Commonwealth of VA

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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