COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Clements
Argued at Salem, Virginia
CHRISTOPHER ALLEN MASON
MEMORANDUM OPINION* BY
v. Record No. 2045-05-3 JUDGE JEAN HARRISON CLEMENTS
MARCH 27, 2007
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
Thomas S. Leebrick (Thomas S. Leebrick, P.C., on brief), for
appellant.
Donald E. Jeffrey, III, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
On appeal from an order revoking his previously suspended sentence, Christopher Allen
Mason (appellant) contends the trial court abused its discretion in sentencing him to an indefinite
period of supervised probation. For the reasons that follow, we modify the period of supervised
probation to be concurrent with the specified period of suspension of sentence and affirm the
judgment of the trial court thus modified.
As the parties are fully conversant with the record in this case, and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of
this appeal.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. BACKGROUND
The procedural circumstances relevant to this appeal are not in dispute. On October 15,
1999, the trial court sentenced appellant to ten years in prison for committing forcible sodomy in
violation of Code § 18.2-67.1. The trial court suspended execution of the entire sentence subject
to certain conditions.
On July 7, 2003, the trial court found that appellant had failed to comply with the
conditions of the suspension and revoked the suspension of the sentence. The court then
resuspended upon certain conditions the execution of all but two years of the reinstated sentence.
On July 22, 2005, the trial court found that appellant had violated the conditions of the
resuspended sentence and revoked the suspension of that sentence. By order entered the same
day, the court imposed an active sentence of twelve months in jail and resuspended execution of
the rest of appellant’s unserved sentence, upon the following conditions:
Good Behavior. The defendant shall be of good behavior for 3
years from the defendant’s release from confinement.
Supervised Probation. The defendant is placed on probation to
commence on release from incarceration under the supervision of a
Probation Officer for an indefinite period of time. The defendant
shall comply with all the rules and requirements set by the
Probation Officer.
(Emphasis added.)
Appellant moved to amend the sentence, arguing that the imposition of an “indefinite
period” of supervised probation was improper under Hartless v. Commonwealth, 29 Va. App.
172, 510 S.E.2d 738 (1999). The trial court denied appellant’s motion, and this appeal followed.
II. ANALYSIS
Appellant contends on appeal, as he did below, that the trial court’s imposition of an
“indefinite period” of supervised probation in the July 22, 2005 order was inappropriate under
Hartless. We agree.
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In Hartless, having found the defendant guilty of indecent exposure, the trial court
sentenced him to
twelve months in jail, with two months suspended upon the
following conditions:
Good behavior. The defendant shall be of good behavior for 1
year from the defendant’s release from confinement.
Supervised probation. The defendant is placed on intensive
probation to commence on release from incarceration, under the
supervision of a Probation Officer for an indefinite period of time,
to be reviewed yearly. The defendant shall comply with all the
rules and requirements set by the Probation Officer.
Id. at 174, 510 S.E.2d at 739 (emphasis added). Reasoning that, “to be effective, probation must
be concurrent with a coordinate term of suspension of sentence,” we held that the period of
supervised probation imposed by the trial court may not “extend beyond . . . the specified period
of suspension.” Id. at 175, 510 S.E.2d at 739-40. We further held that “[t]he good behavior
requirement [set forth in the trial court’s sentencing order in Hartless] sufficiently defined a
period of suspension continuing for one year from Hartless’s release from confinement.” Id. at
175, 510 S.E.2d at 740. Hence, we concluded that Hartless’s supervised probation could not
continue “beyond one year from Hartless’s release from confinement.” Id. Consequently, we
modified “Hartless’s term of probation such that it . . . continue[d] for a term ending one year
following his release from confinement,” and affirmed the trial court’s judgment thus modified.
Id. at 176, 510 S.E.2d at 740.
The same principles govern our resolution of this appeal. Here, the trial court suspended
the execution of the balance of appellant’s sentence on the condition that he “be of good
behavior for [three] years from [his] release from confinement.” No other period of suspension
is set forth in the July 22, 2005 order. Thus, as in Hartless, the good behavior requirement set
forth in the court’s order delineates the period of suspension of sentence. See id. at 175, 510
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S.E.2d at 740. Because, as we said in Hartless, the period of supervised probation imposed by
the trial court may not “extend beyond . . . the specified period of suspension,” appellant’s
supervised probation may not last more than three years following his release from confinement.
See id.
Accordingly, we modify the period of supervised probation imposed by the trial court in
the July 22, 2005 order “to be coterminous” with the specified period of suspension of sentence
such that it will end three years from appellant’s release from confinement. Id. at 174, 510
S.E.2d at 739. “With that modification, the judgment of the trial court is affirmed.” Id. at 176,
510 S.E.2d at 740.
Modified and affirmed.
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