COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Hodges
Argued at Alexandria, Virginia
PABLO T. DOSSOLA
OPINION BY
v. Record No. 2824-00-4 JUDGE JAMES W. BENTON, JR.
FEBRUARY 5, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Kathleen H. MacKay, Judge
A. Andrew Giangreco; Louis Koutoulakos for
appellant.
Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General;
Shelly R. James, Assistant Attorney General,
on brief), for appellee.
The sole issue raised by this appeal is whether the trial
judge erred by finding that Pablo T. Dossola violated the terms
and conditions of his probation, which was granted under Code
§ 18.2–251. We affirm the judgment.
I.
On June 10, 1999, Dossola pled guilty in the circuit court
to possession of marijuana in violation of Code § 18.2-250.1.
The trial judge found that the facts were sufficient to prove
Dossola's guilt, granted Dossola's motion to defer further
proceedings without entering a judgment, and placed him on
probation pursuant to Code § 18.2-251. The terms of the
probation included a condition that Dossola be of "good behavior
for a period of one . . . year."
On July 7, 2000, at a hearing to consider Dossola's
compliance with the terms and conditions of his probation, the
trial judge denied Dossola's motion to dismiss the proceedings
and continued the matter for a hearing upon the Commonwealth's
allegation that Dossola had violated the terms and conditions of
his probation. After a hearing at which Dossola was directed to
"show cause why he should not be convicted and sentenced on the
original charge," the trial judge "found [Dossola] guilty of
violating the conditions of his probation," entered a judgment of
conviction, and sentenced him to a term in jail and to pay a fine
and costs. The trial judge suspended the jail sentence upon the
condition of Dossola's good behavior for a year. The record
contains no transcript of that hearing.
Upon Dossola's motion, a judge suspended the judgment within
twenty-one days of its entry and scheduled a hearing on Dossola's
motion to set aside the judgment. At the hearing on the motion
to set aside the judgment, Dossola's attorney conceded that
during the period of probation Dossola had been charged with
criminal trespass in Maryland. He argued, however, that Dossola
had pled not guilty, that an order entered by the Maryland court
granted Dossola "probation before judgment," and that these
circumstances failed to prove Dossola had violated the condition
of good behavior imposed by the circuit court's June 10, 1999
order. The prosecutor agreed that the sole question in the
proceeding was "whether or not [Dossola's] probation [before]
judgment in Maryland violates the [Code § 18.2-251] disposition"
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of the June 10, 1999 order. The trial judge ruled that the
Maryland order supported an inference that, when the Maryland
judge found Dossola eligible for probation, the judge necessarily
found that Dossola's conduct was sufficient to prove he committed
the offense. The trial judge found that Dossola had violated the
condition of good behavior and denied the motion to set aside the
judgment.
II.
Dossola contends the trial judge misread the import of the
Maryland proceeding and, thus, erred in finding that he violated
the condition of good behavior during the period of probation.
The Commonwealth argues that the evidence supports the trial
judge's conviction order.
The initial order granting Dossola probation in Virginia was
entered pursuant to Code § 18.2-251. In pertinent part, that
statute provides as follows:
Whenever any person who has not previously
been convicted of any offense . . . relating
to narcotic drugs, marijuana, or stimulant,
depressant, or hallucinogenic drugs . . .
pleads guilty to . . . possession of
marijuana under § 18.2-250.1, the court,
upon such plea if the facts found by the
court would justify a finding of guilt,
without entering a judgment of guilt and
with the consent of the accused, may
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defer further proceedings and place him on
probation upon terms and conditions.
* * * * * * *
Upon violation of a term or condition [of
probation], the court may enter an
adjudication of guilt and proceed as
otherwise provided.
Code § 18.2-251.
"Probation is a disposition intended to 'reform' the
offender, appropriate in 'mitigating circumstances' or to promote
the 'public interest.'" Connelly v. Commonwealth, 14 Va. App.
888, 890, 420 S.E.2d 244, 245 (1992) (citation omitted). The
purpose of probation is to "restor[e] to a useful place in
society an offender who is a good social risk." Slayton v.
Commonwealth, 185 Va. 357, 366, 38 S.E.2d 479, 483 (1946). In
view of these principles, we have held that the probation
condition of "[g]ood behavior is not limited to an avoidance of
criminal activity." Holden v. Commonwealth, 26 Va. App. 403,
409, 494 S.E.2d 892, 895 (1998). Thus, a conviction of a
criminal offense is a sufficient but not a necessary circumstance
to prove a violation of probation. See Slayton, 185 Va. at 366,
38 S.E.2d at 483.
At the hearing on the motion to set aside the judgment, the
evidence established that a criminal complaint in Maryland
alleged that Dossola committed a trespass offense on a date that
occurred during the one-year probation period of the circuit
court's June 10, 1999 order. Although Dossola pled not guilty to
that charge, the order of the Maryland court recites that a judge
heard the case and entered a verdict of "probation before
judgment."
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At the request of Dossola's attorney, the trial judge
considered the effect of Art. 27, § 641(a), of the Maryland Code.
In pertinent part, the statute that was in effect when the
Maryland judge entered his order provided as follows:
(1)(i) 1. Whenever a person accused of a
crime pleads guilty or nolo contendere or is
found guilty of an offense, a court
exercising criminal jurisdiction, if
satisfied that the best interests of the
person and the welfare of the people of the
State would be served thereby, and with the
written consent of the person after
determination of guilt or acceptance of a
nolo contendere plea, may stay the entering
of judgment, defer further proceedings, and
place the person on probation subject to
reasonable terms and conditions as
appropriate.
* * * * * * *
(5) By consenting to and receiving a stay
of entering of the judgment as provided by
this subsection, the person waives the right
to appeal from the judgment of guilt by the
court at any time. Prior to the person
consenting to the stay of entering of the
judgment, the court shall notify the person
that by consenting to and receiving a stay
of entry of judgment, the person waives the
right to appeal from the judgment of guilt
by the court at any time.
Md. Code Art. 27, § 641(a) (emphasis added) (amended 2001).
Pursuant to the statute, when a person pleads not guilty, as
Dossola did, a Maryland judge may impose the remedy of probation
before judgment only if the judge finds that person "is . . .
guilty of an offense" and the judge makes a "determination of
guilt." Md. Code Art. 27, § 641(a)(1)(i)1. Upon her review of
the statute, the trial judge determined that the Maryland judge
was required to find that Dossola had committed acts sufficient
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to justify a conviction of criminal trespass before the judge
could order probation. In the absence of contrary evidence, the
trial judge did not err in concluding that the Maryland judge
obeyed the law in his disposition of the case. See Hinderliter
v. Humphries, 224 Va. 439, 448, 297 S.E.2d 684, 689 (1982)
(noting "a presumption that public officials will obey the law"
in the performance of their official duties). Thus, we hold that
the evidence provided an adequate basis for the trial judge to
infer that the Maryland judge found Dossola had committed acts
sufficient to constitute criminal trespass.
Dossola additionally contends that because he fulfilled the
conditions imposed upon him by the Maryland judge, the Maryland
statute prevents consideration of any results of proceeding under
the statute. We do not read the statute so broadly. Although
the statute expressly provides that "[d]ischarge of a person
under this section shall be without judgment of conviction and is
not a conviction for purposes of any disqualification or
disability imposed by law because of conviction of crime," Md.
Code Art. 27, § 641(a)(5)(c), that limitation does not void, ab
initio, every incidence of the proceeding.
The trial judge did not consider the Maryland order to be a
criminal conviction or evidence of a conviction. Instead, she
found that the statutory remedy of probation before judgment was
only available by operation of Maryland law upon a finding by a
Maryland judge that the defendant engaged in conduct that would
be sufficient to support a conviction. This finding, she
concluded, was sufficient to support a finding of a lack of "good
behavior."
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Under Virginia law, a probation revocation for a failure of
good behavior may be supported by "substantial misconduct not
involving violation of law." Holden, 27 Va. App. at 44, 494
S.E.2d at 495. See also Marshall v. Commonwealth, 202 Va. 217,
221-22, 116 S.E.2d 270, 274 (1960) (noting that a defendant's
conduct, as proved in the trial in which a jury acquitted the
defendant, may be used to support a revocation for failure to be
of good behavior). The trial judge's finding of a probation
violation is "reversible only upon a clear showing of an abuse of
discretion." Slayton, 185 Va. at 367, 38 S.E.2d at 484. We hold
the evidence was sufficient to support the trial judge's finding
that during the period of probation Dossola engaged in conduct
which violated the condition of good behavior. Therefore, the
trial judge did not abuse her discretion in
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entering the judgment. For these reasons, we affirm the
judgment.
Affirmed.
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