COURT OF APPEALS OF VIRGINIA
Present: Judge Bray, Senior Judges Duff and Overton
Argued at Alexandria, Virginia
EDWARD T. RESIO, S/K/A
EDWARD THOMAS RESIO
OPINION BY
v. Record No. 2287-97-4 JUDGE RICHARD S. BRAY
APRIL 27, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
J. Peyton Farmer, Judge
Gail Starling Marshall for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Edward T. Resio (defendant) appeals an order of the trial
court revoking previously suspended sentences. Defendant contends
the trial court erred because two of the three felony convictions
that supported the revocation proceedings were later reversed by
this Court. We affirm the revocation order but reverse the
related sentence and remand to the trial court.
I.
On June 19, 1979, defendant was convicted of rape and
burglary and sentenced to a total of sixty years imprisonment,
with forty years suspended, conditioned upon fifteen years “active
supervised probation and that he keep the peace and be of good
behavior for the balance of his life.” On November 9, 1989,
defendant was released from incarceration to parole, which he
successfully completed on May 1, 1991, followed by supervised
probation.
While on probation, defendant was convicted for “abduction
with the intent to sexually molest” (abduction) and “statutory
burglary with the intent to rape” (burglary) and was sentenced on
April 8, 1997, to forty-two years in the penitentiary. Defendant
had previously pled guilty to a felonious firearm offense arising
from his arrest on the burglary and abduction charges and
sentenced to five years in prison, with four years suspended,
pursuant to a plea agreement.
Following the three felony convictions, a probation official
notified the local Commonwealth’s Attorney that defendant had
failed “‘to obey all Municipal, County, State, and Federal laws
and ordinances,’” a violation of “condition #1” of probation, and
recommended that he “be returned to court for a . . . [related]
hearing.” Accordingly, on motion of the Commonwealth, the trial
court ordered defendant to “show cause . . . why the remaining
forty (40) years of the suspended sentence . . . imposed on June
19, 1979, should not be revoked.” The related revocation hearing
was conducted on September 9, 1997, and defendant appeared before
the trial court, represented by counsel.
Relying solely upon the three felony convictions as the basis
of the show cause, the Commonwealth introduced the attendant
orders to prove the offenses. Defendant acknowledged his
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probationary status and the three convictions. 1 However, he
advised the court that, although he had pursued no appeal of the
firearm offense, appeals of the abduction and burglary convictions
were pending before this Court and “going along real good . . .
for a new trial.” No further evidence was presented to the court.
At the conclusion of the hearing, the Commonwealth argued
that the “seriousness of the offenses” suggested a “pattern in
. . . defendant’s conduct” which “will once again endanger
people” if he is permitted “to walk a free man in society for
the rest of his life.” In response, defendant’s counsel
recognized that the court “can consider [all] convictions” but
“ask[ed] the court to also consider that . . . the most serious
convictions are on appeal.”
The court found “from the evidence that [defendant had]
violated the terms of [his] suspended sentence in that [he had]
not kept the peace and been of good behavior.” Before
pronouncing sentence, the trial judge admonished defendant:
You have a felony [firearm] conviction,
which is not on appeal, and you have two
convictions, which are on appeal. The Court
considers them, understanding that they
could be reversed. But still, you have not
complied with the terms of your suspended
sentences.
The previously suspended 1979 sentences were then revoked, and
the court imposed the entire suspended portion, forty years.
1
Defendant also admitted a DUI conviction not in issue.
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The court’s “Sentencing Revocation Report” identified the
abduction and burglary offenses as the “most serious new law
violations,” noting also that defendant had wrongfully
“possess[ed] [a] firearm.” The revocation order simply recited,
“the court finds the defendant guilty of Violation of Probation”
and imposed sentence.
Defendant subsequently appealed the order to this Court
and, while his petition was pending before us, we reversed the
abduction and burglary convictions that were before the trial
court at the time of the revocation proceeding. Several days
thereafter, we granted defendant’s petition for appeal of the
instant order. Defendant now argues that the “revocation
relie[d] in whole or in substantial part on . . . criminal
conviction[s] . . . overturned on appeal” and, therefore, must
also be reversed.
II.
Code § 19.2-306 provides, in pertinent part, that “[t]he
court may, for any cause deemed by it sufficient which occurred
at any time within the probation period, . . . revoke the
suspension of sentence and any probation, if the defendant be on
probation, and cause the defendant to be arrested and brought
before the court.” “A revocation . . . must be based on
reasonable cause but a court has broad discretion in making such a
determination.” Patterson v. Commonwealth, 12 Va. App. 1046,
1048, 407 S.E.2d 43, 44 (1991) (citations omitted). “To put the
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matter another way, the sufficiency of the evidence to sustain
. . . revocation is a matter within the sound discretion of the
trial court, . . . reversible only upon a clear showing of an
abuse of such discretion.” Slayton v. Commonwealth, 185 Va. 357,
367, 38 S.E.2d 479, 484 (1946); see Holden v. Commonwealth, 27 Va.
App. 38, 41, 497 S.E.2d 492, 493 (1998).
“It is beyond question that ‘[a] court which has ordered a
suspension of sentence undoubtedly has the power to revoke it when
the defendant has failed to comply with the conditions of the
suspension.” Russnak v. Commonwealth, 10 Va. App. 317, 321, 392
S.E.2d 491, 493 (1990) (citation omitted). However, “[t]here is
no requirement . . . that the suspension [of sentence] may be
revoked only upon the conviction of a subsequent criminal
offense.” Slayton, 185 Va. at 365, 38 S.E.2d at 483; see Holden,
27 Va. App. at 42-43, 497 S.E.2d at 494. “[G]ood behavior is a
condition of every suspension, with or without probation, whether
expressly so stated or not.” Marshall v. Commonwealth, 202 Va.
217, 220, 116 S.E.2d 270, 273 (1960). Thus, “[i]t seems entirely
clear that . . . substantial misconduct . . . would provide
reasonable cause for revocation of the suspension.” Id. at
220-21, 116 S.E.2d at 273-74. Manifestly, evidence that “the
trier of fact in a criminal proceeding found beyond a reasonable
doubt that [a] defendant violated a state law is sufficient . . .
to support” revocation of a suspended sentence, notwithstanding
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the pendency of such conviction on appeal. Patterson, 12 Va. App.
at 1049, 407 S.E.2d at 45.
When the record fails to disclose precisely “upon what ground
the [court] revoked the suspension[,] . . . [t]he presumption is
that it was upon a valid finding that the [defendant] had in some
manner violated the conditions of the suspension.” Slayton, 185
Va. at 369, 38 S.E.2d at 485 (citation omitted). However, should
the Commonwealth elect to rely solely upon a criminal conviction,
without evidence of the related conduct, to establish the
reasonable cause necessary to revocation, the “bare fact” of such
conviction clearly becomes the basis for the revocation order.
See Preston v. Commonwealth, 14 Va. App. 731, 734-35, 419 S.E.2d
288, 291 (1992). As a consequence, the fate of the “underlying
conviction will determine the outcome of [an] appeal of the
revocation proceeding.” Patterson, 12 Va. App. at 1049, 407
S.E.2d at 45. Should the predicate conviction be reversed or
otherwise upset, the solely dependent revocation order is left
without support in the evidence and subject to a challenge
appropriate to its then existing status. See id. at 1049-50, 407
S.E.2d at 45; Preston, 14 Va. App. at 734-35, 419 S.E.2d at 291. 2
2
In contrast, a revocation supported by evidence of acts
which establish that defendant engaged in sufficiently egregious
misconduct will survive the failure of any related criminal
conviction. See Marshall, 202 Va. at 221, 116 S.E.2d at 274.
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Here, the petition initiating the revocation proceedings
and the resulting order relied exclusively upon convictions for
felonious possession of a firearm, abduction, and burglary.
Although the abduction and burglary convictions were then on
appeal, the trial court considered each, “understanding that
they could be reversed,” noting, in obvious reference to the
firearm conviction, “[b]ut still [defendant has] not complied
with the terms of [his] suspended sentence.” (Emphasis added).
Defendant does not dispute that the firearm offense, standing
alone, constituted sufficient evidence to support revocation of
the suspended sentences. Thus, notwithstanding the
post-revocation reversal of the abduction and burglary
convictions, “any [resulting] error was harmless since there
were other sufficient causes,” expressly recognized by the
court, prompting the decision “to revoke the suspended sentences
and probation.” Davis v. Commonwealth, 12 Va. App. 81, 86, 402
S.E.2d 684, 688 (1991).
However, the error that the later reversals visited upon
the revocations also infected the attendant sentence and our
resolution of that issue is more problematic. “[U]nless ‘it
[also] plainly appears from the record and the evidence given at
the trial that’ the error did not affect the [sentence],” we
must reverse such sentence. Lavinder v. Commonwealth, 12 Va.
App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc) (citing
Code § 8.01-678); see Hackney v. Commonwealth, 28 Va. App. 288,
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296, 504 S.E.2d 385, 389 (1998) (en banc). “An error does not
affect a verdict if a reviewing court can conclude, without
usurping the [fact finder’s] function, that, had the error not
occurred, the verdict would have been the same.” Lavinder, 12
Va. App. at 1005, 407 S.E.2d at 911. “The effect of an error on
a verdict varies widely [and] . . . [e]ach case must, therefore,
be analyzed individually . . . .” Id. at 1009, 407 S.E.2d at
913.
The instant record discloses that the trial court expressly
considered the abduction and burglary convictions, albeit with
an understanding that both were pending on appeal. The court
identified the convictions as the “most serious new law
violations” in the “Sentencing Revocation Report,” while
relegating the firearm offense to a notation. In urging the
court to imprison defendant “for the rest of his life,” the
Commonwealth relied upon the “pattern” of defendant’s criminal
conduct evinced by the recent abduction and burglary convictions
following the 1979 convictions for rape and burglary. Also
significant, in revoking the suspended sentences, the court
imposed the entire forty years. 3 Under such circumstances, we
are unable to conclude that the sentence was unaffected by
consideration of the reversed convictions.
3
While we do not suggest that this result would have been
inappropriate upon evidence of only the firearm conviction, we
are unable to project that outcome without improperly
speculating upon the trial court.
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Accordingly, we affirm revocation of the suspended
sentences but remand the proceedings for resentencing by the
trial court consistent with this opinion.
Affirmed in part,
reversed in part,
and remanded.
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