COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Frank and Clements
Argued at Richmond, Virginia
KEITH WILLIAMS, S/K/A KEITH N. WILLIAMS
MEMORANDUM OPINION * BY
v. Record No. 2262-00-2 JUDGE JEAN HARRISON CLEMENTS
FEBRUARY 5, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Gregory W. Franklin, Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Keith Williams appeals from a judgment of the trial court
revoking a portion of his previously suspended sentences. On
appeal, he contends the trial court abused its discretion in
revoking his suspended sentences because no evidence was presented
showing any underlying wrongdoing. We agree and reverse the
revocation of his previously suspended sentences.
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
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
proceedings as necessary to the parties' understanding of the
disposition of this appeal.
When the sufficiency of the evidence is challenged on appeal,
we review the evidence "in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Bright v. Commonwealth, 4 Va. App. 248,
250, 356 S.E.2d 443, 444 (1987). "In so doing, we must discard
the evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence
favorable to the Commonwealth and all fair inferences that may be
drawn therefrom." Watkins v. Commonwealth, 26 Va. App. 335, 349,
494 S.E.2d 859, 866 (1998). We are further mindful that the
"credibility of a witness, the weight accorded the testimony, and
the inferences to be drawn from proven facts are matters solely
for the fact[ ]finder's determination." Keyes v. City of Virginia
Beach, 16 Va. App. 198, 199, 428 S.E.2d 766, 767 (1993).
When the defendant has failed to comply with the conditions
of a suspended sentence, the trial court has the power to revoke
the sentence in whole or in part. Russnak v. Commonwealth, 10 Va.
App. 317, 321, 392 S.E.2d 491, 493 (1990). "A trial court has
broad discretion to revoke a suspended sentence and probation
based on Code § 19.2-306, which allows a court to do so 'for any
cause deemed by it sufficient.'" Davis v. Commonwealth, 12 Va.
App. 81, 86, 402 S.E.2d 684, 686 (1991).
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"The cause deemed by the court to be
sufficient for revoking a suspension must be
a reasonable cause. The sufficiency of the
evidence to sustain an order of revocation
'is a matter within the sound discretion of
the trial court. Its finding of fact and
judgment thereon are reversible only upon a
clear showing of abuse of discretion.' The
discretion required is a judicial discretion,
the exercise of which 'implies conscientious
judgment, not arbitrary action.'"
Hamilton v. Commonwealth, 217 Va. 325, 327, 228 S.E.2d 555, 556
(1976) (quoting Marshall v. Commonwealth, 202 Va. 217, 220, 116
S.E.2d 270, 273 (1960) (quoting Slayton v. Commonwealth, 185 Va.
357, 367, 38 S.E.2d 479, 484 (1946))).
Williams argues the trial court abused its discretion because
there was no evidence of new charges while he was on probation.
Further, he contends, the evidence was not sufficient to show he
attempted to rape or rob Sharon Drummer or wrongfully possessed
her property. We agree.
Here, the Commonwealth alleged that Williams had violated the
conditions of his previously suspended sentence of August 26,
1999, by "having charges of possession of cocaine and felony
obstruction of justice pending in the Richmond Circuit Court II"
and by attempting to rape and rob Sharon Drummer.
At the commencement of the revocation proceeding, the
Commonwealth stated that Williams had new charges for possession
of cocaine and obstruction of justice and that he had been
convicted of each. Subsequently, Williams' attorney and the trial
judge had the following exchange:
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THE COURT: They're two convictions?
MR. STALLARD: Well, Your Honor, I would say
the possession of cocaine and felony
obstruction referred to in this letter are
charges which he pled guilty to in July or
August of last year. He was indicted again
in April of this year on charges he had
previously been convicted of. Those charges
were nol prossed Monday last week because the
other court realized they were, in fact,
duplicate charges that he had previously been
convicted.
THE COURT: Well, it helps the case. Okay.
Go right along.
Neither the Commonwealth nor Williams presented any evidence about
these charges. During the closing argument, Williams' attorney
and the trial judge had the following exchange:
MR. STALLARD: Your Honor, again, the two
charges, the possession of cocaine and felony
obstruction charged —
THE COURT: You don't need to worry about
that.
Officer Carlos Collins, the Commonwealth's only witness,
testified that, when he responded to the scene at 2704 Midlothian
Turnpike, he met Sharon Drummer. 1 Collins stated that, when he
entered the residence, Williams was coming down the stairs with a
television in his hand. Williams agreed to be searched and
Officer Collins recovered two watches, a necklace, and a
television remote control from Williams' right front pocket. From
Williams' left front pocket, Collins recovered sunglasses and
1
Sharon Drummer committed suicide several days later.
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keys. In Williams' right rear pocket, Collins found a purse
containing a female's Virginia identification card. Williams told
Collins that Drummer had given him the purse and that he had
bought the watches as a gift for her but was "taking them back."
Testifying in his own defense, Williams stated that he did
not know Drummer but knew her boyfriend, Todd. Williams added
that he had earlier loaned the boyfriend and Drummer $200 to pay
their rent and that, upon seeing them, asked them for his money.
Drummer's boyfriend, according to Williams, gave him the items,
"their stuff," in payment of the debt they owed. Williams also
testified that, when Drummer balked at giving the items to
Williams, her boyfriend said that he could do what he wanted and
handed the necklace to Williams. Williams further testified that
he did not remember the identification card and denied that the
officer found a wallet in his pocket. Furthermore, according to
Williams, the boyfriend was present when the police came. A
witness called on Williams' behalf testified she had taken him to
the couple's home several times to attempt to collect the $200
Williams had lent them.
The trial judge made no findings of fact to support his
judgment that there was sufficient cause to revoke Williams'
suspended sentences. Our review of the record convinces us that
there was no evidence of new charges pending against Williams
during his probation and the suspension of his sentences.
Furthermore, in his remarks to Williams' attorney, the trial judge
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discounted this allegation as a basis for his judgment. Likewise,
there was no evidence of attempted rape or attempted robbery of
Drummer. In drawing inferences from all the circumstances, the
most the fact finder could conclude was that Williams was merely
in possession of property owned by or previously owned by Drummer.
We hold, therefore, that there was no reasonable cause to
revoke Williams' suspended sentences. The trial court's judgment
was arbitrary and a clear abuse of discretion. Accordingly, the
revocation of Williams' previously suspended sentences is
reversed.
Reversed and dismissed.
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