COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Lemons
Argued at Chesapeake, Virginia
AMBER K. RUFFIN
MEMORANDUM OPINION * BY
v. Record No. 1685-98-1 CHIEF JUDGE JOHANNA L. FITZPATRICK
DECEMBER 28, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
H. Thomas Padrick, Jr., Judge
Melinda R. Glaubke, Senior Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
John H. McLees, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General;
Pamela A. Rumpz, Assistant Attorney General,
on brief), for appellee.
Amber K. Ruffin (appellant) appeals the revocation of her
suspended sentence. She contends that (1) the trial court
abused its discretion in sentencing her to prison because Code
§ 19.2-306 prevents the court from conducting a revocation
hearing based solely on an alleged violation for which a
previous hearing was held, and (2) her denial of a placement in
an alternative sentencing program was a violation of the
Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et
seq. For the following reasons, we affirm.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
On August 12, 1996, appellant was convicted of prescription
fraud and was sentenced to three years imprisonment, all
suspended conditioned upon appellant's good behavior,
participation in a supervised probation program and payment of
court costs. On June 2, 1998, the trial court determined that
appellant had violated the conditions of her probation by using
cocaine. The trial court revoked and re-suspended appellant's
sentence upon the condition that she successfully complete the
Detention Center Program and the Diversion Center Program. At
that time, the court noted that appellant was first to be
"evaluated" and "screened" for admission into these alternative
programs and that her three-year sentence would be re-suspended
upon completion of the programs.
After an evaluation, the Department of Corrections found
that appellant was ineligible for the detention center and
diversion center programs due to a history of major depression
and post-traumatic stress disorder. On June 29, 1998, after
learning that appellant did not qualify for the alternative
sentencing programs, the trial court amended its previous order
and revoked the three years of appellant's suspended sentence.
While appellant argued that her denial into these programs
violated the Americans with Disabilities Act, she raised no
other objection.
On appeal, appellant contends that the trial court abused
its discretion in revoking her suspended sentence as contrary to
- 2 -
Code § 19.2-306. 1 Appellant's argument is procedurally barred.
Rule 5A:18 provides:
No ruling of the trial court . . . will be
considered as a basis for reversal unless
the objection was stated together with the
grounds therefor at the time of the ruling,
except for good cause shown or to enable the
Court of Appeals to attain the ends of
justice. A mere statement that the judgment
or award is contrary to the law and the
evidence is not sufficient to constitute a
question to be ruled upon on appeal.
"The primary function of Rule 5A:18 is to alert the trial
judge to possible error so that the judge may consider the issue
intelligently and take any corrective actions necessary to avoid
unnecessary appeals, reversals and mistrials." Martin v.
Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992).
In the instant case, appellant did not object to the trial
court's decision at the time of sentencing as either an abuse of
discretion or contrary to the provisions of Code § 19.2-306.
Additionally, while this Court will notice error for which there
has been no timely objection when necessary to satisfy the ends
of justice, the record must "affirmatively show that a
1
Code § 19.2-306 provides in pertinent part:
The court may, for any cause deemed by it
sufficient . . . revoke the suspension of
sentence. . . . [I]f any court has, after
hearing, found no cause . . . to revoke a
suspended sentence or probation, any further
hearing to . . . revoke a suspended sentence
or probation, based solely on the alleged
violation for which the hearing was held
shall be barred.
- 3 -
miscarriage of justice has occurred, not that a miscarriage
might have occurred." Redman v. Commonwealth, 25 Va. App. 215,
221, 487 S.E.2d 269, 272 (1997). Our review of the record
discloses no miscarriage of justice in the instant case.
Next, appellant contends that her denial of admission into
the two treatment programs because of her mental health problems
was a violation of the Americans with Disabilities Act of 1990,
42 U.S.C. § 12101 et seq. However, we recently held that "a
probation revocation hearing in a criminal court is not the
proper forum in which to attack that violation." Wilson v.
Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___, ___ (1999).
For the foregoing reasons, the judgment of the trial court
is affirmed.
Affirmed.
- 4 -