COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Kelsey and Petty
UNPUBLISHED
Argued at Richmond, Virginia
DAYMAN AARON CARTER
MEMORANDUM OPINION* BY
v. Record No. 0941-13-2 CHIEF JUDGE WALTER S. FELTON, JR.
MAY 6, 2014
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ORANGE COUNTY
Daniel R. Bouton, Judge
Kirk T. Milam (The Law Office of Kirk T. Milam, P.L.C., on brief),
for appellant.
Leah A. Darron, Senior Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Dayman Aaron Carter (“appellant”) appeals the judgment of the Circuit Court of Orange
County (“trial court”) that he violated the terms and conditions of his supervised probation.
Appellant asserts that his five-year probation term, imposed as a condition of his suspended
sentence, expired prior to the date he was convicted of the offense that gave rise to the probation
violation. He further contends the trial court abused its discretion by first revoking and then
re-imposing his two-year-and-six-month suspended sentence. In the alternative, he asserts that
the trial court erred by failing to resuspend all or part of the re-imposed sentence.
I. BACKGROUND
On December 10, 2003, the trial court sentenced appellant to a five-year term of
imprisonment for assaulting a police officer, in violation of Code § 18.2-57(C). The trial court
imposed an active sentence of one year and nine months’ incarceration of appellant’s five-year
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
sentence. The trial court suspended the remainder of appellant’s sentence on the condition that he
be of good behavior for a period of ten years following his release from confinement after serving
the active sentence. The trial court placed appellant on supervised probation for a period of five
years, also to commence upon his release from confinement after serving the one year and nine
months’ active sentence.
On March 16, 2007, appellant was released from confinement. On that date, he commenced
serving his five-year term of probation and ten-year term of good behavior, terms imposed by the
trial court as conditions of the court’s suspending appellant’s remaining sentence of three years and
three months’ imprisonment.1
On October 6, 2008, the trial court found that appellant had violated the terms and
conditions of his probation and suspended sentence by possessing cocaine.2 The trial court
revoked the remaining three years and three months of appellant’s suspended sentence from his
2003 conviction. It then resuspended two years and six months of that sentence, and ordered
appellant to serve an active sentence of nine months’ imprisonment of the previously suspended
sentence. The trial court imposed “the same conditions as stated in the previous sentencing
order” as a condition for resuspending the unserved portion of appellant’s 2003 sentence. On
April 20, 2009, appellant was released from confinement imposed as a result of his 2008
probation violation.
1
“[T]he condition of good behavior is implicit in every order suspending sentence, is a
condition of every such suspension, whether probation is provided for or not, and applies
‘whether expressly so stated or not.’” Collins v. Commonwealth, 269 Va. 141, 146, 607 S.E.2d
719, 721 (2005) (quoting Coffey v. Commonwealth, 209 Va. 760, 762-63, 167 S.E.2d 343,
344-45 (1969)).
2
It is unclear from the record on appeal whether appellant was convicted of possession of
cocaine.
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On October 6, 2012, appellant was arrested for distribution of cocaine, second or
subsequent offense, in violation of Code § 18.2-248.3 On November 15, 2012, appellant was
convicted of that offense and sentenced to thirty years’ incarceration, with twenty-five years
suspended.
On April 27, 2013, appellant was brought before the trial court for a revocation hearing
based upon his 2012 felony drug conviction. The trial court found that appellant “clearly has
violated the terms and conditions of the [c]ourt’s prior order, be it supervised probation and/or
the period of good behavior. At the very least he’s violated the good behavior requirement with
his new serious felony conviction.” In its final written order, the trial court “[found] the
defendant has violated the conditions of his probation and is guilty as charged.” The trial court
then imposed appellant’s previously suspended sentence of two years and six months’
incarceration remaining from his 2003 conviction, ordered that appellant’s sentence run
consecutively with any other sentences, and terminated appellant’s supervised probation.
II. ANALYSIS
On appeal from a revocation of a suspended sentence, the judgment of the trial court will not
be reversed absent a clear showing of abuse of discretion. Dunham v. Commonwealth, 59 Va. App.
634, 638, 721 S.E.2d 824, 826, aff’d, 284 Va. 511, 733 S.E.2d 660 (2012).
A.
Appellant argues that his supervised probation period, imposed in 2003 as a condition of
his suspended sentence, expired on March 16, 2012, five years after his March 16, 2007 release
date from imprisonment for assaulting a law enforcement officer. He contends that he was no
longer on probation as of November 15, 2012, the date of his conviction of distribution of
cocaine. Accordingly, appellant asserts the trial court erred by ruling that he violated the terms
3
The arrest warrant charged that the date of offense was May 17, 2012.
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and conditions of his supervised probation when he was convicted of the new drug offense on
November 15, 2012.
Code § 19.2-306(A) provides, in pertinent part, “[i]n any case in which the court has
suspended the execution or imposition of sentence, the court may revoke the suspension of
sentence for any cause the court deems sufficient that occurred at any time within the probation
period, or within the period of suspension fixed by the court.”
Code § 19.2-303.1 provides that a trial court may suspend a sentence “for a reasonable
time.” That provision applies not only to any condition imposed as a condition of the sentence
imposed at an accused’s initial sentencing, but also to any suspension of a sentence imposed in a
subsequent revocation proceeding. Wright v. Commonwealth, 32 Va. App. 148, 153, 526 S.E.2d
784, 787 (2000). A trial court has “authority to extend the suspension period when it sentence[s]
appellant following appellant’s violations of the conditions of his previously suspended
sentence,” so that “each of the trial court’s revocation orders sets new . . . suspension periods,
which [run] from the dates of entry of the revocation orders.” Id. at 150-51, 526 S.E.2d at
785-86.
The Commonwealth argues that appellant’s period of supervised probation had not
expired as of November 15, 2012, the date of his conviction of distribution of cocaine. The
Commonwealth asserts that the trial court imposed a new five-year term of supervised probation
when it found him guilty of his first probation violation on October 6, 2008. On that date, the
trial court revoked appellant’s previously suspended sentence, imposed an active sentence of
nine months, and then resuspended two years and six months of appellant’s sentence on “the
same conditions as stated in the previous sentencing order.” The Commonwealth asserts that a
plain reading of the trial court’s October 6, 2008 order demonstrates that the court intended a
new five-year term of probation to commence on the date appellant was released from
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confinement after serving a portion of his suspended sentence as a result of the first probation
violation.4
Appellant, for his part, argues that the trial court did not intend to impose a new five-year
period of supervised probation to commence upon his release from incarceration for his first
probation violation. Rather, appellant asserts that the trial court’s October 6, 2008 order merely
reiterated that he would remain subject to supervised probation until March 16, 2012, five years
from his March 16, 2007 release from incarceration on his original conviction.
Trial courts “have the authority to interpret their own orders,” and appellate courts “‘give
deference to the interpretation adopted by the lower court.’” Fredericksburg Constr. Co. v. J.W.
Wyne Excavating, Inc., 260 Va. 137, 144, 530 S.E.2d 148, 152 (2000) (quoting Rusty’s Welding
Serv., Inc. v. Gibson, 29 Va. App. 119, 129, 510 S.E.2d 255, 260 (1999) (en banc)). Here, the
trial court’s October 6, 2008 order, entered after appellant’s first probation violation, conditioned
appellant’s resuspended sentence of two years and six months’ imprisonment on “the same
conditions as stated in the previous sentencing order.” After the entry of the October 6, 2008
order, the trial court, the probation officer,5 and appellant himself6 operated in a manner
consistent with recognizing that the trial court had in fact ordered that appellant serve a new
five-year term of supervised probation as a condition of the resuspension of a portion of his
4
Appellant was released from confinement on April 20, 2009.
5
On March 12, 2013, the probation officer issued a major violation report as a result of
appellant’s new felony conviction. In that report, and in the probation officer’s letter
subsequently issued to the trial court, the officer noted that appellant’s period of supervised
probation ran from April 20, 2009, the date of his release from incarceration on his first
probation violation, to at least April 20, 2014.
6
Appellant persisted in reporting to his probation officer as of May 2012, in
contraindication of his assertion that his term of supervised probation expired on March 16,
2012, five years after his release from confinement for his conviction of assaulting a law
enforcement officer.
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initial sentence, to commence upon appellant’s release from incarceration for the October 6,
2008 probation violation. Appellant was released from incarceration on April 20, 2009,
commencing a five-year probation period that would expire on April 20, 2014. At appellant’s
April 27, 2013 revocation hearing, following his new felony conviction in November 2012, the
trial court imposed appellant’s previously suspended sentence of two years and six months’
incarceration, ordered that appellant’s sentence run consecutively with any other sentences, and
terminated appellant’s supervised probation. By terminating appellant’s supervised probation on
April 27, 2013, the trial court clearly indicated that it found appellant continued to be subject to
serving the five-year term of probation that commenced on April 20, 2009, following appellant’s
release from incarceration for his first probation violation in October 2008.
Appellant was well within the five-year probation period that commenced on April 20,
2009, the date of his release from confinement after serving a portion of his previously
suspended sentence imposed for his first probation violation, when he was convicted of
distribution of cocaine on November 15, 2012. Accordingly, we conclude that the trial court did
not abuse its discretion by finding that appellant had violated the conditions of his supervised
probation, imposed as a condition of suspending a portion of his sentence to confinement, when
he was convicted of distribution of cocaine on November 15, 2012.
B.
Appellant further asserts the trial court erred by revoking and re-imposing his remaining
two-year-and-six-month suspended sentence from his 2003 conviction, or in the alternative, by
failing to resuspend all or part of the re-imposed sentence. He contends that he performed
successfully on probation for a period of three years, that he maintained employment during that
time, and that he did not test positive for any illegal substances.
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“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, 687 (1991). Code § 19.2-306 is “highly
remedial and should be liberally construed to provide trial courts a valuable tool for
rehabilitation of criminals.” Grant v. Commonwealth, 223 Va. 680, 684, 292 S.E.2d 348, 350
(1982). “The revocation of the suspended sentence ‘must be based on reasonable cause,’ and
must be based upon cause that occurred within the suspension or probation period.” Bailey v.
Commonwealth, 19 Va. App. 355, 357, 451 S.E.2d 686, 687 (1994) (quoting Patterson v.
Commonwealth, 12 Va. App. 1046, 1048, 407 S.E.2d 43, 44 (1991)).
At the conclusion of the April 27, 2013 revocation hearing, appellant exercised his right
of allocution. Following appellant’s allocution, the trial court told appellant, “let me tell you
what we’re going to do and why.” The trial court stated:
There’s no further point in supervised probation in your case. So
the remaining question is do we invoke the entire two years and six
months [remaining from the 2003 conviction], or do we invoke
only a part of it, or if we do invoke it all, do we run any of it
concurrent with any other sentences? That’s really the issue before
the [c]ourt. And the [c]ourt will be direct with you, Mr. Carter, we
never hesitate to invoke only a portion of sentences. We often run
all or some portions of sentences concurrent with other sentences,
but in your case, [number one], your original conviction was
assaulting a police officer. That’s a serious crime of violence that
the [c]ourt has to give consideration to. This probation violation,
or this violation of the [c]ourt’s prior order, involves the charge of
distribution of cocaine. Both of those offenses, for different
reasons, the assaulting the officer and the cocaine charge, that
involves danger to others in the community. And in this instance it
represents the second time you’ve violated the [c]ourt’s prior
order. So, we don’t find that in your circumstances there would be
any real mitigation. You need to be out of the community for an
extended period of time so that you don’t do those kinds of things
which have an impact on other citizens. And we don’t find the two
years six month sentence excessive, but, in fact, we find it fair and
appropriate for the fact of a second probation violation in a serious
case. So we’ll simply invoke the two years and six months in its
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entirety[, and] direct that you serve it. Supervised probation will
be terminated.
From the record on appeal, this Court cannot say that the trial court abused its discretion
or lacked reasonable cause to revoke and impose the entirety of appellant’s previously suspended
sentence.
III. CONCLUSION
For the foregoing reasons, we affirm the trial court’s judgment that appellant violated the
terms and conditions of his supervised probation, a condition of his suspended sentence, when he
was convicted of distribution of cocaine on November 15, 2012. Likewise, we affirm the trial
court’s order revoking and imposing the entirety of appellant’s previously suspended sentence.
Affirmed.
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