COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, McClanahan and Petty
Argued at Salem, Virginia
LLOYD DAREN HOWELL
MEMORANDUM OPINION∗ BY
v. Record No. 2847-05-3 JUDGE ELIZABETH A. McCLANAHAN
DECEMBER 19, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Charles N. Dorsey, Judge
Rachel E. Jackson, Assistant Public Defender (Office of the Public
Defender, on brief), for appellant.
Eugene Murphy, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Lloyd Daren Howell appeals a condition of his suspended sentence requiring that he
make restitution in the amount of $1,040, the cost of a security system installed after he
burglarized a business. He argues that the trial court had no authority to order such a payment.
We disagree and affirm the restitution award, subject to remand solely for the correction of
clerical errors.
I. BACKGROUND
Howell broke into Thomas Tax Service and stole several items of office equipment. The
Thomases’ insurer provided partial payment, and the Thomases paid a $250 deductible. At the
time of the sentencing hearing, the Thomases had paid $1,040 for the security system: $800
installation cost plus $240 in monthly monitoring fees.
∗
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Howell pled guilty to and was sentenced for committing statutory burglary in violation of
Code § 18.2-91 and grand larceny in violation of Code § 18.2-95.1 The trial court ordered
Howell to pay as restitution the cost of a security system installed by the business after the
burglary. The trial court set restitution, as a condition of Howell’s suspended sentences,
referring to the pre-sentence report for its calculations: $1,040 for costs associated with the
installation and maintenance of their security system and $250 for the Thomases’ insurance
deductible.2 The award of restitution in the amount of $1,040 for costs associated with the
business’ security system is the sole issue on appeal.
II. ANALYSIS
Howell contends that Code § 19.2-305(B) does not give the trial court authority to award
restitution for the costs associated with the security system because the security system was not a
“loss or damage” caused by the crime.3 The Commonwealth relies on Code § 19.2-3034 and
1
At the same hearing, Howell was also sentenced for a robbery he committed at a Pizza
Hut, an offense unrelated to the convictions in this appeal.
2
The trial court addressed the burglary and grand larceny convictions and the robbery
conviction in separate sentencing orders. Based on the transcript of the sentencing proceeding
and the contents of the pre-sentence report, it is clear that the robbery sentencing order
erroneously contains the restitution order to reimburse the Thomases for costs associated with
the security system and their insurance deductible. The burglary and grand larceny sentencing
order fails to include any award of restitution to the Thomases for the security system or the
insurance deductible. Both costs should have been included in the burglary and grand larceny
sentencing order. We remand with direction to the trial court to correct the clerical errors in the
sentencing orders. See Tatum v. Commonwealth, 17 Va. App. 585, 592, 440 S.E.2d 133, 138
(1994); see also Code § 8.01-428(B).
3
Howell does not argue the provisions of Code §§ 19.2-305.1, -305.2, and -305.4, and
therefore we do not address them. See Rule 5A:18.
4
Code § 19.2-303 provides in part:
After conviction . . . the court may suspend imposition of
sentence or suspend the sentence in whole or part and in addition
may place the defendant on probation under such conditions as the
court shall determine or may, as a condition of a suspended
-2-
Waiters v. Commonwealth, 33 Va. App. 739, 741, 536 S.E.2d 923, 924 (2000), to support its
argument that the payment ordered was a reasonable condition of Howell’s suspended sentences.
Our decision in Waiters interpreting Code § 19.2-303 controls the outcome of this case.5
In Waiters, we stated “[t]he first clause of Code § 19.2-303 gives broad power to the trial
court to determine the conditions of a suspended sentence.” Id. at 741, 536 S.E.2d at 925. “The
clause[] [specifically pertaining to restitution] that ha[s] been added to the original enactment
ha[s] not been interpreted as limiting or restricting the original statement of the court’s broad
powers.” Id. at 741-42, 536 S.E.2d at 925 (footnote omitted). We further stated, “‘[t]he sole
statutory limitation placed upon a trial court’s discretion in its determination of such conditions
is one of reasonableness.’” Id. at 742, 536 S.E.2d at 925 (quoting Anderson v. Commonwealth,
256 Va. 580, 585, 507 S.E.2d 339, 341 (1998)); see also Deal v. Commonwealth, 15 Va. App.
157, 161, 421 S.E.2d 897, 899 (1992) (condition of suspension of sentence “must be reasonable
in relation to the nature of the offense”).
The reasonableness of a condition of a suspended sentence should be measured by how
well the condition serves to effectuate its objectives. One objective of such conditions includes
promoting “rehabilitation of the convict.” See Anderson v. Commonwealth, 25 Va. App. 565,
sentence, require the defendant to make at least partial restitution
to the aggrieved party or parties for damages or loss caused by the
offense for which convicted . . . .
(Emphasis added). Thus, after a criminal conviction, “trial courts are specifically vested with
authority ‘to suspend the sentence in whole or part,’ ‘suspend [its] imposition,’ and ‘in addition
. . . place the accused on probation,’ all ‘under such conditions as the court shall determine.’”
Deal v. Commonwealth, 15 Va. App. 157, 160, 421 S.E.2d 897, 899 (1992) (quoting Code
§ 19.2-303) (footnote omitted).
5
Under Virginia’s interpanel accord doctrine, we have no authority to overrule another
panel of this Court’s decision. “The decision of one panel ‘becomes a predicate for application
of the doctrine of stare decisis’ and ‘cannot be overruled except by the Court of Appeals sitting
en banc or by the Virginia Supreme Court.’” Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 73,
577 S.E.2d 538, 540 (2003) (citation omitted).
-3-
572, 490 S.E.2d 274, 277 (1997). Sentencing statutes “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.’” Deal, 15
Va. App. at 160, 421 S.E.2d at 899 (citations omitted).
The trial court required Howell to pay a liquidated amount of money for the installation
cost of the security system and eight months’ maintenance fees.6 The condition was reasonably
related to Howell’s criminal activities and promotes rehabilitation of the convict by impressing
upon him the harm caused by his crimes. It, therefore, was an appropriate exercise of the trial
court’s judicial discretion under Code § 19.2-303. See id. at 160-61, 421 S.E.2d at 899
(conditions of suspension “must be reasonable in relation to the nature of the offense, the
background of the offender and the surrounding circumstances”). Accordingly, we affirm.
Affirmed on the merits and remanded with instructions.
6
The trial court also ordered Howell to pay the $250 insurance deductible, but did not
order him to repay the insurance company the amount it sustained in covering the Thomases’
claim. See Alger v. Commonwealth, 19 Va. App. 252, 255-56, 450 S.E.2d 765, 767 (1994)
(ordering defendant to pay restitution to victims’ insurance carriers).
-4-