COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bray and Bumgardner
Argued at Chesapeake, Virginia
LARRY LEE
MEMORANDUM OPINION * BY
v. Record No. 1215-99-1 JUDGE RUDOLPH BUMGARDNER, III
APRIL 11, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
H. Thomas Padrick, Jr., Judge
Annette Miller, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Larry Lee pled guilty to violating probation, and the trial
court revoked his suspended sentence. On appeal, he argues the
trial court abused its discretion by ordering that he serve the
entire sentence. Finding no error, we affirm.
The trial court had convicted the defendant of petit
larceny third offense and had imposed a suspended sentence.
While on probation for that conviction, the defendant received a
new conviction for trespassing. The trial court found that the
trespassing conviction was a violation of probation, but it
continued the case to determine "the defendant's suitability for
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
participation in the Statewide Community-Based Corrections
System's Diversion Center Incarceration Program."
At the sentencing hearing, defense counsel advised the
court that the defendant did not qualify for the diversion
programs because of a conviction for armed robbery in 1971.
Counsel nonetheless argued that the defendant was a non-violent,
homeless alcoholic who would benefit from placement in a
diversion program. The defendant had an extensive record, but
it consisted primarily of petit larceny convictions. The
Commonwealth left the defendant's sentencing to the discretion
of the court. The trial court gave the defendant the
opportunity for allocution having him stand and then asking,
"Anything you want to say before the court passes sentence on
you?" Neither the defendant nor his counsel responded. The
court recited that it had reviewed the defendant's record and
announced that it was revoking his entire suspended sentence.
Defense counsel argues the trial court abused its
discretion because she was unaware that it was about to impose
sentence, and this precluded the defendant from testifying in
mitigation. Counsel claims that if she had known the court
would revoke the entire suspension, she would have called the
defendant to testify. However, the defendant was given the
right of allocution which would alert counsel that the court was
ready to pass sentence. Neither the defendant nor his counsel
said anything. After the trial court announced its decision,
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defense counsel said, "All right. Thank you, Your Honor."
Counsel did not object or proffer any testimony that might have
affected the sentence. See Rule 5A:18; Barnabei v.
Commonwealth, 252 Va. 161, 177, 477 S.E.2d 270, 279 (1996),
cert. denied, 520 U.S. 1224 (1997) (appeal procedurally
defaulted where defendant failed to object when instruction
given); Spencer v. Commonwealth, 238 Va. 563, 570, 385 S.E.2d
850, 854 (1989) (where defendant claims court erroneously
limited cross-examination, record must contain proffer of both
questions to be asked and expected answers).
The subsequent conviction gave the trial court sufficient
reason to revoke the suspended sentence. The defendant did not
qualify for the diversion programs. The trial court had before
it all relevant information needed to make its decision. "A
trial court has broad discretion in deciding whether to revoke a
suspended sentence and probation based upon Code § 19.2-306,
which allows a court to do so 'for any cause deemed by it
sufficient.' The court's findings of fact and judgment will not
be reversed unless there is a clear showing of abuse of
discretion." Davis v. Commonwealth, 12 Va. App. 81, 86, 402
S.E.2d 684, 687 (1991) (citations omitted). Accordingly, we
affirm the judgment of the trial court.
Affirmed.
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