COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Humphreys
Argued at Chesapeake, Virginia
SHAHEEM LABEEB RASHEED, A/K/A
ALVIN ANTONIO BARNES
MEMORANDUM OPINION * BY
v. Record No. 2740-00-1 JUDGE RICHARD S. BRAY
FEBRUARY 5, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Joseph A. Leafe, Judge
(Carl C. LaMondue, on brief), for appellant.
Appellant submitting on brief.
(Randolph A. Beales, Acting Attorney General;
John H. McLees, Jr., Senior Assistant
Attorney General, on brief), for appellee.
Shaheem Labeeb Rasheed (defendant) appeals the revocation of
suspended sentences previously imposed by the trial court,
contending the court's finding that he failed to complete the
Detention and the Diversion Center Incarceration Programs, a
condition of the suspended sentence and related probation,
constituted an abuse of discretion. We disagree and affirm the
order.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
On May 21, 1999, defendant was convicted by the trial court
for concealment of merchandise and possession of burglarious
tools, violations of Code §§ 18.2-103 and -94, respectively. At
sentencing, upon joint motion of the Commonwealth and defendant,
the court ordered "defendant . . . referred to the Department of
Corrections (DOC) . . . for evaluation and diagnosis . . . to
determine suitability for participation in the Diversion Center
Incarceration Program and/or Southampton Detention Incarceration
Program" pursuant to Code § 19.2-316.2. 1 See Code §§ 19.2-316.2,
-316.3; Code §§ 53.1-67.7, -67.8. Subsequently, the DOC
reported to the court that defendant was eligible for placement
in such programs, and the trial court imposed suspended
sentences and probation for each offense, conditioned upon
certain conditions, including successful completion of the
"Detention and the Diversion Center Incarceration Programs," a
proviso mandated by Code § 19.2-316.2(3).
On August 21, 2000, defendant entered Southampton Detention
Center to commence a referenced DOC program. However, by
correspondence, dated September 6, 2000, defendant's probation
officer advised the court that defendant "was terminated from
1
Such programs are alternative sentencing options available
to the court, expressly subject to conditions imposed by
statute, including a "motion from [the] defendant" to
participate and a favorable suitability evaluation by DOC. Code
§ 19.2-316.2.
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the Program" on August 25, 2000, "after refusing to obey all
rules, regulations and to participate in training . . . ." In
response, the trial court, on September 13, 2000, issued a
capias for defendant's arrest, commanding he "show cause"
against revocation of the previously suspended sentences.
At the attendant hearing, a "Major Violation Report," dated
October 3, 2000, and prepared by defendant's probation officer,
was received into evidence, without objection. The report
advised the court that defendant had
entered the Detention Center Program on
August 21, 2000. He was terminated from the
program four days later for non-compliance
with the rules and regulations of the
program. [Defendant] signed documents
agreeing that he would obey all rules and
regulations of the program. These
regulations also cover the religious areas.
Paragraph five of Southampton Detention
center Pre-admission Agreement Form states,
"I will not be allowed any special religious
paraphernalia beyond a Bible, Quran, etc.
The practice of any/all religious activity
will have to comply with the structure of
the Detention Center[sic] normal daily
operation and procedures."
[Defendant] immediately began making demands
regarding his religious practices which
conflicted with the Southampton Detention
Center Daily Activity Schedule for the
detainees in the transition phase of our
program. . . .
[Defendant] was seen by staff at this
facility on numerous occasions. During
these contacts he made demands in the area
of religion. Each time [he] was given an
opportunity to practice his religious
beliefs within the guidelines of this
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program. Each time [he] rejected the offer
and offered more demands of his own.
On August 24, 2000, [defendant] received
four infractions which all violated our
General Orders:
1. Giving food to another detainee
2. Demanding staff to get him out of
here, refusing to go to his dormitory.
Speaking without permission, and
deliberately taking off his belt with
his canteen, and throwing them on the
floor, disrupting the transition group.
3. When instructed to return to the
transition group and train, [he]
refused to do so, stating, "I am ready
to be removed, I am not training
anymore."
4. When offered time to pray, [he] did
not answer . . . yes or no, but said he
"did not want to do the program any
more."
On August 25, 2000, the Institutional Review
Committee heard the above mentioned charges.
Based on [defendant's] statement that he was
ready to be removed and was not going to
train anymore, the committee members voted
to terminate [him] from the program.
Defendant did not dispute the contents of the violation
report but contended participation in the program infringed upon
the free exercise of his religion in violation of the First
Amendment. The court, however, rejected the argument, noting
that "[defendant is] not being penalized for . . . any of the
religious aspects of his inability to complete detention and
diversion. It's just the fact that it couldn't be done." The
court, therefore, found defendant in violation of the terms and
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conditions of the suspended sentences and probation, revoked
such suspensions and sentenced him to five years in the
penitentiary for the concealment offense, resuspending two years
of the sentence, and to two years confinement for the possession
of burglarious tools, again resuspended.
II.
By statute, a trial judge in Virginia
"may, for any cause deemed by [the judge]
sufficient which occurred at any time within
the probation period . . . revoke the
suspension of sentence." The revocation of
the suspended sentence "must be based on
reasonable cause," and must be based upon
cause that occurred within the suspension or
probation period.
Bailey v. Commonwealth, 19 Va. App. 355, 357, 451 S.E.2d 686,
687 (1994) (citations omitted); see Code § 19.2-306. "[T]he
power of the courts to revoke suspensions and probation for
breach of conditions must not be restricted beyond the statutory
limitations." Briggs v. Commonwealth, 21 Va. App. 338, 344, 464
S.E.2d 512, 514 (1995) (citations omitted). Thus, "the issue on
review of a revocation is 'simply whether there has been an
abuse of discretion.'" Connelly v. Commonwealth, 14 Va. App.
888, 890, 420 S.E.2d 244, 245 (1992) (quoting Marshall v.
Commonwealth, 202 Va. 217, 221, 116 S.E.2d 270, 274 (1960).
Here, defendant expressly requested admission into the
"Detention and the Diversion Center Incarceration Programs," a
sentencing option available at the discretion of the court upon
certain circumstances, and submitted to the requisite
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suitability review by DOC. Once approved by DOC and with
defendant's continuing concurrence, the court imposed suspended
sentences and probation, specifically conditioned upon
defendant's "successful complet[ion of] the Detention and the
Diversion Center Incarceration Programs" in accordance with
statute. However, defendant immediately refused "to obey all
rules, regulations and to participate in training . . .,"
committing several enumerated violations, and repeatedly
declaring "he was ready to be removed" and "was not going to
train anymore." Thus, "[b]ased upon [defendant's] statement,"
administrators "voted to terminate" his participation.
Defendant's conduct was clearly contrary to his request to
the court for referral to the program and his subsequent
informed commitment to abide by the attendant protocols. Under
such circumstances, defendant evinced an "unwillingness to avail
[himself] of the opportunity afforded by the court," Connelly,
14 Va. App. at 890, 420 S.E.2d at 245, and provided reasonable
cause for revocation of the suspended sentences pursuant to Code
§ 19.2-316(A)(4), 2 without implicating religious precepts or
constitutional constraints.
2
Code § 19.2-316.2(A)(4) provides:
Upon a finding that the defendant
voluntarily withdrew from the program, was
removed from the program by the Department
for intractable behavior, or failed to
comply with the terms and conditions of
probation, the court may revoke all or part
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We, therefore, find no abuse of discretion by the trial
court in the revocation of defendant's suspended sentences and
affirm the disputed order.
Affirmed.
of the probation and suspended sentence and
commit the defendant as otherwise provided
in this chapter.
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