COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Bray
Argued at Norfolk, Virginia
ANTHONY LEE VAUGHAN, JR.
MEMORANDUM OPINION *
v. Record No. 1069-96-1 BY JUDGE JOSEPH E. BAKER
APRIL 15, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
William F. Rutherford, Judge
Jeffrey M. Hallock for appellant.
John H. McLees, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief) for appellee.
Anthony Lee Vaughan, Jr. (appellant) appeals the decision of
the Circuit Court of the City of Norfolk (trial court) to revoke
the suspension of his ten year prison sentence for possession of
cocaine with intent to distribute. Appellant contends (1) that
the trial court abused its discretion in denying a continuance of
appellant's revocation proceeding until appellant's sentencing
for the predicate offense and (2) that due process requires that
when a subsequent conviction is to be used as a predicate for a
violation of probation, said predicate conviction must be final.
Finding no error, we affirm the trial court's decision to revoke
appellant's probation.
Upon familiar principles, we view the evidence in the light
most favorable to the Commonwealth, granting to it all reasonable
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
inferences fairly deducible therefrom. Martin v. Commonwealth, 4
Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). Viewed
accordingly, the record reveals that on February 6, 1995,
appellant was convicted of possession of cocaine with intent to
distribute in the trial court and was sentenced to probation with
a suspended prison term. While on probation, appellant was
charged with a new drug offense (predicate offense) and was tried
before Judge Lydia C. Taylor.
In the revocation proceeding, appellant did not dispute that
he was convicted by Judge Taylor for the predicate offense, that
defense counsel had argued that the evidence was insufficient to
convict appellant of the predicate offense, and that Judge Taylor
had advised defense counsel that she would look at any cases he
would submit at sentencing but as of now appellant is convicted.
Appellant moved for a continuance of the revocation hearing
because his sentencing hearing for the predicate offense had not
yet occurred. The trial court refused to grant a continuance,
and appellant was found in violation based upon the predicate
offense.
I. Abuse of Discretion
Where denial of a continuance has not prejudiced a
defendant, there is no abuse of discretion. Cardwell v.
Commonwealth, 248 Va. 501, 509, 450 S.E.2d 146, 151 (1994).
Appellant has failed to show that he was prejudiced in any way by
the trial court's denial of his motion for continuance.
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The trial court heard the representations of the Assistant
Commonwealth's Attorney who personally prosecuted the predicate
offense without any objection by appellant. She informed the
trial court that appellant's predicate offense was "a
circumstantial case of distribution where the [appellant] was
partners with another individual who made an actual distribution
to an undercover vice and narcotics officer." She also informed
the trial court that appellant had already been found guilty of
the predicate offense. This showed substantial misconduct and
was sufficient grounds for revocation of appellant's probation.
See Marshall v. Commonwealth, 202 Va. 217, 220-21, 116 S.E.2d
270, 273-74 (1960).
Even if the finding of guilty had not ripened into a final
judgment of conviction on the predicate offense, the trial court
could still have revoked appellant's probation. A final
conviction is not required in order to constitute grounds for
revocation. Id. at 221, 116 S.E.2d at 274. However, the
undisputed representations of the Commonwealth's attorney at
appellant's revocation hearing clearly reveal that Judge Taylor
had found appellant guilty of the predicate offense. "That the
trier of fact in a criminal proceeding found beyond a reasonable
doubt that the defendant violated a state law is sufficient
evidence to support the trial court's finding." Patterson v.
Commonwealth, 12 Va. App. 1046, 1049, 407 S.E.2d 43, 45 (1991).
Thus, the representations made to Judge Rutherford
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concerning (1) the evidence which had been presented to Judge
Taylor and (2) Judge Taylor's finding appellant guilty of the
predicate offense constituted sufficient grounds for the
revocation. The trial court was not shown to have abused its
discretion in denying the continuance.
II. Due Process
On appeal, appellant contends that the trial court deprived
him of due process in his revocation hearing. However, he never
in the trial court invoked due process of law or any other
constitutional argument. His constitutional arguments are
therefore procedurally defaulted under Rule 5A:18. See Barnabei
v. Commonwealth, 252 Va. 161, 171, 477 S.E.2d 270, 276 (1996).
For the foregoing reasons, the judgment of the trial court
is affirmed.
Affirmed.
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