COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Benton and Overton
Argued at Norfolk, Virginia
JAMES BOWE, S/K/A
JAMES ADAM BOWE
MEMORANDUM OPINION *
v. Record No. 0072-96-1 BY JUDGE JOSEPH E. BAKER
FEBRUARY 11, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Dennis F. McMurran, Judge
Gregory W. Copeland (Brenda C. Spry, Deputy
Public Defender, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
James Adam Bowe (appellant) appeals from an order entered by
the Circuit Court of the City of Portsmouth (trial court)
revoking a previous order of the court that suspended a five-year
penitentiary sentence imposed on appellant. The sole issue
presented on appeal is whether the trial court abused its
discretion when it revoked the suspended sentence. Finding no
error, we affirm.
The record discloses that on August 9, 1994, appellant was
convicted of "fail to perform contract" (Portsmouth offense) by
the trial court. On October 26, 1994, appellant was sentenced to
serve five years in prison for the Portsmouth offense. All of
his sentence was suspended on the condition that he submit to
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
five years supervised probation, not violate any laws, pay $600
restitution to the victim, and pay court costs. The restitution
and costs totaled $1,237.50. The trial court ordered appellant
to make payments of $30 per month commencing November 28, 1994
until his obligation was paid in full. This appeal arises from
the trial court's revocation of that suspension order.
On May 3, 1995, appellant was convicted in Norfolk on a
charge of failure to perform promise of construction (Norfolk
offense). For the Norfolk offense, he was sentenced to three
years in a Virginia correctional facility. That sentence was
also suspended, and appellant was placed on supervised probation
for three years or until restitution and costs totalling
$1,347.50 were paid in full.
Following appellant's Norfolk conviction, a show cause was
issued directing that appellant show cause why his probation
granted by the trial court should not be revoked. At the
probation violation hearing, appellant testified that the conduct
for which he was convicted in the Norfolk offense occurred prior
to his conviction for the Portsmouth offense; however, he
admitted that although he and his family had paid $9,000 in
restitution in other jurisdictions and had even obtained a loan
to do so, he had paid none of the restitution required as a
condition of the Portsmouth suspension order. Thus, appellant
preferred others by paying restitution in other jurisdictions
rather than meeting the requirement imposed by the trial court.
- 2 -
The standard of review in an appeal from a trial court's
revocation of a suspended sentence is whether the record
discloses that the trial court abused its broad discretion in
such matter. Hess v. Commonwealth, 17 Va. App. 738, 741, 441
S.E.2d 29, 31 (1994).
On appeal, appellant contends (1) that it was error for the
trial court to consider the Norfolk offense because the conduct
supporting the Norfolk offense occurred before appellant's
conviction for the Portsmouth offense, and (2) that it was error
for the trial court to consider appellant's failure to pay
restitution because it was not mentioned in appellant's probation
violation report.
At the probation revocation hearing, appellant did not
properly preserve the issue concerning conduct occurring prior to
his Portsmouth suspension. During his argument before the trial
court he conceded that he had violated a condition of his
Portsmouth probation. Argument on that issue is moot.
Further, at the hearing, appellant introduced the evidence
of his failure to pay restitution as ordered by the trial court.
On appeal, he will not be heard to say that the trial court
should not have considered the evidence he introduced.
Appellant's failure to pay restitution alone is sufficient
to support the revocation of his probation. Accordingly, we find
that appellant has not shown that the trial court abused its
- 3 -
discretion and, therefore, the judgment of the trial court is
affirmed.
Affirmed.
- 4 -
Benton, J., dissenting.
I would hold that Bowe properly preserved the issues he
presents on appeal and that the trial judge erred. Thus, I would
reverse the revocation of the suspension of Bowe's sentence.
The record reveals that Bowe was indicted in the City of
Portsmouth for failure to perform a contract after fraudulently
obtaining an advance on May 11, 1993, in violation of Code
§ 18.2-200.1. Bowe was convicted in the Circuit Court of the
City of Portsmouth and sentenced on October 26, 1994 to five
years in prison, which was suspended. The trial judge also
placed Bowe on probation and ordered him to pay restitution and
costs. Bowe later signed an agreement to pay $600 in restitution
and $637.50 in fines and costs in installments beginning on
November 28, 1994. Bowe signed a separate agreement promising to
abide by the conditions of his probation, including paying $600
in restitution and obeying all laws.
On May 3, 1995, Bowe appeared in the Circuit Court of the
City of Norfolk on charges that he had failed to perform a
different contract after fraudulently obtaining an advance, in
violation of Code § 18.2-200.1. Upon Bowe's plea of guilty, a
judge convicted him and sentenced him to three years in prison,
all of which was suspended. The judge placed Bowe on supervised
probation for a period of three years or until Bowe paid
restitution in the amount of $700. Bowe was also ordered to pay
costs in the amount of $647.50. The date of the offense was not
- 5 -
included in the order of conviction.
On October 31, 1995, Bowe's probation officer wrote a letter
to the judge of the Circuit Court of the City of Portsmouth
alleging that Bowe had violated the following condition of his
probation:
Condition #1: "I will obey all Federal,
State and local laws and ordinances."
On May 3, 1995 James A. Bowe was convicted in
the City of Norfolk, of Fail to Perform
Promise of Construction in Norfolk Circuit
Court. He was sentenced to three (03) years
VA Correctional Facility, suspended, placed
on three (03) years supervised probation or
until restitution of $700 is paid in full.
This officer requests a capias for James Adam
Bowe to show cause why his probation should
not be revoked.
The trial judge entered a show cause order.
At trial, the probation officer testified that the Norfolk
conviction was the only violation that was at issue. Bowe
attempted to show that he committed the Norfolk offense at
approximately the same time he committed the Portsmouth offense.
In addition, Bowe testified that he was trying to pay all of his
debts but that because he was incarcerated and could not work, he
was having difficulty. Bowe asked the trial judge to put him on
work release so he could "work and pay back the victims."
The majority concludes that Bowe did not preserve for appeal
the issue whether the trial judge erred in considering as a
ground for revoking his sentence the Norfolk conviction, which
was based upon conduct that occurred before he was sentenced in
- 6 -
Portsmouth. I disagree. At trial, Bowe's counsel and the judge
made the following statements:
[JUDGE]: [I]f your defense is that this
occurred around May 11, 1993 -- ask him when
the one in Norfolk occurred; . . . . I want
to know if it occurred around the same time
. . . .
[BOWE'S COUNSEL]: These are all things that
happened around the same time. That's the
only thing I'm trying to bring before the
Court.
This record establishes that Bowe made "known to the court the
action which he desire[d] the court to take." Code § 8.01-384.
Requiring Bowe to object further to the trial judge's ruling
"would, in effect, recreate the requirement of noting an
exception to a final adverse ruling of the trial judge." Martin
v. Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404
(1992).
Moreover, the evidence proved that the conduct that gave
rise to the Norfolk conviction occurred before Bowe was sentenced
in Portsmouth. Bowe testified that he signed the contract that
was the subject of the Norfolk conviction "before [he] came to
[trial in the Portsmouth] court [on the original charge]." No
evidence contradicts that testimony. "[T]he record discloses no
concealment or misrepresentation of fact by [Bowe] which prompted
the [Portsmouth] suspension of sentence." Hamilton v.
Commonwealth, 217 Va. 325, 328, 228 S.E.2d 555, 557 (1976).
Thus, a conviction based on Bowe's conduct that occurred before
the sentencing cannot serve as grounds for revoking the
- 7 -
suspension of the sentence. See id. I would, therefore, hold
that the trial judge erred in suspending the sentence on these
grounds.
The majority also holds that Bowe's failure to pay
restitution was a sufficient independent ground to warrant
revoking the suspension of his sentence. The record does not
establish, however, that the trial judge revoked Bowe's probation
because of the restitution. The probation officer testified that
the conviction was the only violation at issue. When the trial
judge ruled, he did not state that the revocation was based upon
any ground other than that for which Bowe received notice and
which gave rise to the hearing.
In addition, Bowe argues that his failure to pay restitution
cannot serve as a ground to revoke the suspension of his sentence
because he was not given notice before trial that he was being
charged with a violation of this condition of his probation. The
majority resolves Bowe's notice argument by concluding that
because the evidence showing that Bowe had not paid restitution
was introduced by Bowe himself, Bowe is precluded from objecting
to the trial judge's decision to consider the evidence.
The principle is well established that "[a] litigant will
not be permitted to invite a trial court to commit error, either
through agreeing or failing to object, and then be permitted to
successfully complain of such error on appeal." Wright v.
Norfolk and W. Ry. Co., 245 Va. 160, 170, 427 S.E.2d 724, 729
- 8 -
(1993). However, that principle is not applicable to this case.
At trial, Bowe testified that he had not yet paid restitution to
the Portsmouth complainants because he had been making payments
on debts he owed in other cities pursuant to other circuit court
orders. Bowe offered the evidence to show the efforts he had
made to pay his debts. In fact, after Bowe testified about his
financial difficulties, he asked the trial judge to allow him to
work. Bowe obviously wanted the judge to consider his testimony
in deciding whether to allow Bowe to work. If the trial judge
used that evidence to support an additional ground for
revocation, a fact the record does not prove, the trial judge
erroneously applied the evidence to an issue he raised sua
sponte.
Moreover, Bowe correctly argues that the use of the evidence
in this fashion violated his due process right to notice.
A court may not summarily revoke a previously
suspended sentence without notice, hearing,
and benefit of counsel. Due process
procedural protections are required if an
individual may suffer loss of liberty or
property protected by the fourteenth
amendment.
Copeland v. Commonwealth, 14 Va. App. 754, 756, 419 S.E.2d 294,
295 (1992). Bowe's defense against the charge that he violated
his probation by failing to obey the law did not require him to
defend against accusations that he had failed to pay restitution.
Indeed, the record reveals that if Bowe had received notice that
the judge would proceed on the additional grounds, Bowe could
- 9 -
have offered additional evidence. Bowe testified that his "wife
has all of the receipts for everyone that [he] paid" and that he
"ran out of money." To show that he was unable to pay
restitution, a mitigating circumstance a trial judge must
consider, see Duff v. Commonwealth, 16 Va. App. 293, 298-99, 429
S.E.2d 465, 468 (1993), Bowe could have offered evidence to show
that he was unable to pay or that he could not have
simultaneously satisfied the orders issued by both circuit
judges.
For these reasons, I would reverse the trial judge's ruling
revoking the suspension of Bowe's sentence.
- 10 -