COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff,* Judges Alston and Chafin
UNPUBLISHED
Argued by teleconference
ROBERT E. ROY
MEMORANDUM OPINION** BY
v. Record No. 1827-13-4 JUDGE ROSSIE D. ALSTON, JR.
JANUARY 20, 2015
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
J. Howe Brown, Judge Designate
D. Burke Walker (The Walker Law Firm, PLC, on brief), for
appellant.
Benjamin H. Katz, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Robert E. Roy (appellant) appeals his sentence for his conviction of murder in the second
degree in violation of Code § 18.2-32. On appeal, appellant argues that the trial court erred “in
sentencing [appellant] to an indefinite period of probation for committing a crime that has a
maximum statutory penalty of 40 years.” Finding no error in the trial court’s sentencing, we
affirm.
I. Background1
The evidence indicated that on May 21, 2001, Patrick Hornbaker was shot and killed in
his home during a robbery. On November 10, 2008, appellant was indicted on four felony
*
On January 1, 2015, Judge Huff succeeded Judge Felton as chief judge.
**
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
As the parties are fully conversant with the record in this case and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this
appeal.
charges including robbery, breaking and entering, use of a firearm in the commission of a felony,
and capital murder of Patrick Hornbaker on or about May 21, 2001. On January 31, 2012,
appellant entered into a plea agreement pursuant to Rule 3A:8(B) whereby he pled guilty to the
amended charge of murder in the second degree in violation of Code § 18.2-32 and in exchange
for the plea, the three remaining charges would be subject to nolle prosequi.2 The trial court
accepted appellant’s plea and entered an order finding him guilty of murder in the second degree
on February 3, 2012. At the sentencing hearing on July 31, 2013, appellant testified and blamed
his actions on his drug addiction and stated that the victim was a drug dealer and that appellant
never intended to shoot him to death. At the conclusion of the sentencing hearing, the trial court
stated that “[appellant] demonizes the victim, the decedent, and he victimizes himself” and
thereafter sentenced appellant to forty years’ incarceration with thirteen years suspended. In
addition, on the trial record, the trial court conditioned appellant’s suspended sentence of thirteen
years on appellant’s good behavior and supervised probation post-incarceration for life. The
sentencing order entered on August 21, 2013, specified that both conditions were imposed for an
“indefinite period of time [post-incarceration].” This appeal followed.
II. Analysis
“The determination of sentencing lies within the sound discretion of the trial court.”
Martin v. Commonwealth, 274 Va. 733, 735, 652 S.E.2d 109, 111 (2007) (citation omitted).
Because appellant did not object to the conditions placed on his suspended sentence before the
trial court, made no motion within twenty-one days of sentencing that the provisions be vacated,
and since he does not now contest that his guilty plea was voluntarily entered, appellant “cannot
2
Apparently appellant and an accomplice had been committing various robberies and
murders in Virginia and West Virginia until they were caught in West Virginia in 2003 after one
of the victims managed to call 911. Appellant had been incarcerated in West Virginia until he
was transferred to Virginia at an unknown time (presumably around November 2008 when he
was indicted on the present charges).
-2-
prevail on appeal unless the trial court either lacked jurisdiction or imposed a sentence greater
than that authorized by law.” Simmers v. Commonwealth, 11 Va. App. 375, 377, 398 S.E.2d
693, 694 (1990) (citation omitted).
Trial courts traverse through several code sections when determining appropriate
sentences for convicted defendants. Trial courts have the discretion to “suspend imposition of
[a] sentence or suspend the sentence in whole or part and in addition may place the defendant on
probation under such conditions as the court shall determine . . . .” Code § 19.2-303. “‘The only
limitation placed upon the discretion of the trial court in its determination of what conditions are
to be imposed is that a condition be ‘reasonable.’” Hartless v. Commonwealth, 29 Va. App. 172,
175, 510 S.E.2d 738, 739 (1999) (quoting Dyke v. Commonwealth, 193 Va. 478, 484, 69 S.E.2d
483, 486 (1952)). When suspending a portion of a sentence, a trial court “may fix the period of
suspension for a reasonable time, having due regard to the gravity of the offense, without regard
to the maximum period for which the defendant might have been sentenced.” Code § 19.2-303.1
(emphasis added). Code 19.2-306 guides trial courts when dealing with revocation of a
suspended sentence and provides in part that “[i]f neither a probation period nor a period of
suspension was fixed by the court, then the court may revoke the suspension for any cause the
court deems sufficient that occurred within the maximum period for which the defendant might
originally have been sentenced to be imprisoned.”
Appellant argues that the trial court lacked authority to impose a condition of indefinite
probation and good behavior on his suspended sentence because the condition violated Code
§ 19.2-306. Further, appellant argues that by imposing an indefinite period of probation and
good behavior on his suspended sentence, the trial court sentenced him beyond the maximum
allowable forty-year sentence for his conviction, thereby rendering the sentencing order void.
-3-
Appellant contends that Code § 19.2-306 requires the condition be limited to the forty-year
maximum sentence for appellant’s conviction. We disagree with appellant.
In fact, contrary to appellant’s argument, indefinite periods of probation and good
behavior conditions do not conflict with Code § 19.2-306. Further, by imposing conditions of
indefinite supervised probation and good behavior on appellant’s suspended sentence, the trial
court did not exceed the maximum sentence for appellant’s conviction. Appellant’s argument
confuses the trial court’s authority in fashioning a sentence with the trial court’s authority in
placing conditions upon suspended sentences. The Simmers case and Code § 19.2-303.1 more
appropriately focus our analysis.3
3
The cases relied upon by appellant are either inapplicable to the facts of this case or
support the trial court’s conditions of suspension. Hartless dealt with the practical requirement
that a period of probation coincide with a term of a suspended sentence for enforceability
purposes. 29 Va. App. at 175, 510 S.E.2d at 740. In the present case, both appellant’s sentence
suspension and probation are to extend for an “indefinite period of time” and therefore, the
concern in Hartless is not present in this case.
In Lathram v. Commonwealth, Record No. 0155-05-4, 2006 Va. App. LEXIS 168
(Va. Ct. App. May 2, 2006), the defendant could have been sentenced for up to 105 years;
however the trial court sentenced him to sixty-five years’ incarceration with thirty-five years
suspended, conditioned on good behavior and probation for life. The Court noted that, just as in
the present case, the trial court was only limited to placing “reasonable” conditions on the
suspension of defendant’s sentence and therefore, the trial court did not abuse its discretion in
imposing lifetime probation when defendant faced a maximum sentence of 105 years for
multiple convictions. Id. at *5-6.
Finally, Cherry v. Commonwealth, Record No. 0468-00-1, 2001 Va. App. LEXIS 198
(Va. Ct. App. Apr. 17, 2001), does not affect our analysis in this case. In Cherry, the defendant
was sentenced for robbery and a portion of his sentence was suspended on conditions of
indefinite good behavior and probation. Id. at *1-2. The maximum sentence defendant faced
was life in prison. Relying on Code §§ 19.2-303.1 and 19.2-303, the Court held that “The trial
court did not impose a period of suspension or probation that exceeded the maximum sentence
authorized. An indefinite period was reasonable given the gravity of the offense, robbery. The
sentencing order is not void.” Id. at *4. While the Cherry Court referenced that an indefinite
period of suspension could not exceed the maximum possible sentence of life in prison, we agree
with the Commonwealth that Cherry cannot be read to limit the available period of suspension
when Code § 19.2-303.1 plainly authorizes a trial court to fix a period of suspension for a
reasonable period of time “without regard to the maximum period for which the defendant might
have been sentenced.”
-4-
The maximum sentence for appellant’s second-degree murder conviction was forty years’
incarceration. See Code § 18.2-32 (“All murder other than capital murder and murder in the first
degree is murder of the second degree and is punishable by confinement in a state correctional
facility for not less than five nor more than forty years.”). The trial court sentenced appellant to
forty years’ incarceration with thirteen years suspended, conditioned in part on probation and
good behavior for an indefinite period after appellant’s release from incarceration. Thus,
appellant’s sentence did not exceed the statutory maximum for the offense of which he was
convicted.4
In Simmers, the defendant pled guilty to driving under the influence and leaving the
scene of an accident and was sentenced to twelve months in jail and a $1,000 fine on the DUI
charge. 11 Va. App. at 376, 398 S.E.2d at 693. On the leaving the scene charge, the trial court
sentenced defendant to five years’ incarceration but suspended the sentence on several conditions
including that he not drive a motor vehicle for twenty years. Id. Defendant did not object to the
conditions of his suspended time before the trial court, served his jail time, and complied with all
other conditions of his sentence. Id. at 376-77, 398 S.E.2d at 693-94. Over three years after
sentencing, defendant filed a motion to vacate the portion of the sentencing order that prohibited
him from driving for twenty years, arguing that the trial court lacked the authority to impose a
condition on his suspended sentence or probation for a period of time in excess of his probation
period. Id. at 377, 398 S.E.2d at 694. On appeal, the Court stated:
We also do not agree with [defendant’s] contention that the court
could not impose conditions on the suspended sentence that would
last beyond the maximum period to which he might have been
4
This is where appellant’s reliance on Nesbit v. Commonwealth, 15 Va. App. 391, 424
S.E.2d 239 (1992), is misplaced. Defendant’s sentence in Nesbit exceeded the statutory
maximum. Id. at 394, 424 S.E.2d at 240 (defendant sentenced to thirty days in jail for a Class 4
misdemeanor, which carried a maximum punishment of a fine of not more than $250).
Therefore, Nesbit is inapplicable to the present case.
-5-
sentenced. Code § 19.2-303.1 specifically provides for the
suspension of execution of a sentence without regard to the
maximum period to which the defendant might have been
sentenced.
Id. at 377-78, 398 S.E.2d at 694. The Court did recognize however that “the court’s authority to
suspend execution is not absolute. The legislature has authorized suspension ‘for a reasonable
time, having due regard to the gravity of the offense.’” Id. at 378, 398 S.E.2d at 694. However,
the Court disagreed with defendant’s argument that the twenty-year prohibition on driving was
unreasonable and beyond the trial court’s authority. Id. at 379, 398 S.E.2d at 695. Finally, the
trial court’s order was not void because “the court had jurisdiction over the subject matter and
the parties[,]” and therefore, defendant could not collaterally attack it. Id. (citing Rook v. Rook,
233 Va. 92, 95, 353 S.E.2d 756, 758 (1987); Royster v. Smith, 195 Va. 228, 236, 77 S.E.2d 855,
859 (1953)). Accordingly, the Court affirmed the trial court. Id.
Similarly in the present case, once the trial court decided to suspend a portion of
appellant’s sentence, it was only bound by the limitations set forth in Code §§ 19.2-303.1 and
19.2-303 that the period of suspension be fixed for a “reasonable time with due regard to the
gravity of the offense, without regard to the maximum period for which the defendant might
have been sentenced[,]” and that the conditions of the suspended sentence be reasonable,
respectively. See Hartless, 29 Va. App. at 175, 510 S.E.2d at 739 (“‘The only limitation placed
upon the discretion of the trial court in its determination of what conditions are imposed is that a
condition be ‘reasonable.’” (quoting Dyke, 193 Va. at 484, 69 S.E.2d at 486)). We find that the
trial court gave due regard to the gravity of the offense - second-degree murder - and that the
conditions it imposed upon appellant’s suspended sentence were reasonable. Further, the
sentencing order was not void as the trial court had subject matter jurisdiction over the matter
-6-
and the parties. See Simmers, 11 Va. App. at 379, 398 S.E.2d at 695; Rook, 233 Va. at 95, 353
S.E.2d at 758; Royster, 195 Va. at 236, 77 S.E.2d at 859.
For these reasons, we hold that the trial court did not err in conditioning appellant’s
suspended sentence on indefinite periods of good behavior and supervised probation.
Affirmed.
-7-