Holden v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Bray and Annunziata
Argued at Alexandria, Virginia

MICHAEL R. HOLDEN
OPINION BY
v. Record No. 0912-97-4 JUDGE ROSEMARIE ANNUNZIATA
MARCH 31, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
David T. Stitt, Judge
Kristi A. Middleton, Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.

John H. McLees, Jr., Assistant Attorney
General (Richard Cullen, Attorney General;
Kathleen B. Martin, Assistant Attorney
General, on brief), for appellee.

Michael R. Holden (appellant) appeals the circuit court's

order revoking his suspended sentence. Appellant contends the

court lacked jurisdiction to revoke his suspended sentence and in

doing so violated his right to due process. We disagree and

affirm.

On December 29, 1986, appellant was sentenced to ten years

imprisonment for aggravated sexual battery on an eleven-year-old

boy. The court suspended five years of appellant's sentence

"conditioned upon the Defendant's good behavior." After

appellant had apparently served time on an unrelated offense, the

Commonwealth obtained letters written by appellant while in

prison in which he graphically described his desire to have sex

with children. The Commonwealth sought to revoke appellant's
suspended sentence on the basis that he had violated the

condition of "good behavior." Although the letters appear to be

part of an ongoing correspondence, the Commonwealth alleged that

the writing of the letters, rather than the use of the mails,

constituted a violation of the good behavior condition.

At a revocation hearing, appellant admitted writing the

letters but contended the court lacked jurisdiction to revoke his

suspended sentence because the Commonwealth did not allege or

prove that appellant had violated the law. Appellant's prison

counselor testified that after she confronted appellant about the

letters in group therapy, he admitted he spent many hours

watching children's programs on television. She testified that

appellant's thoughts of sexual contact with children are related

to his behavior and that appellant had shown "very limited"

progress in restructuring his thoughts about sexual involvement

with children. The court overruled appellant's motion.
I.

Good Behavior Requirement

Pursuant to its authority under Code § 19.2-306, "[t]he

court may, for any cause deemed by it sufficient . . . revoke the

suspension of sentence." This language gives the court "wide

discretion in the determination of the sufficiency of the cause

for revoking the suspension." Slayton v. Commonwealth, 185 Va.

357, 365, 38 S.E.2d 479, 483 (1946); see also Hamilton v.
Commonwealth, 217 Va. 325, 326, 228 S.E.2d 555, 556 (1976)

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(describing the court's discretion as "quite broad").

"Therefore, the issue on review of a revocation is 'simply

whether there has been an abuse of discretion.'" Connelly v.

Commonwealth, 14 Va. App. 888, 890, 420 S.E.2d 244, 245 (1992)

(quoting Marshall v. Commonwealth, 202 Va. 217, 221, 116 S.E.2d

270, 274 (1960)). "[T]he power of the courts to revoke

suspensions and probation for breach of conditions must not be

restricted beyond the statutory limitations." Grant v.
Commonwealth, 223 Va. 680, 684, 292 S.E.2d 348, 350 (1982)

(citing Dyke v. Commonwealth, 193 Va. 478, 484, 69 S.E.2d 483,

487 (1952)).

Appellant's suspended sentence was conditioned solely upon

his "good behavior." "[W]hen the accused has complied with

conditions specified, he has a right to rely upon them, and the

suspension will stand." Griffin v. Cunningham, 205 Va. 349, 354,

136 S.E.2d 840, 844 (1964). Because the suspension of sentence

is a means to effect the rehabilitation of offenders, "it is

important that those to whom it is granted shall know that its

terms and conditions are to be strictly observed." Dyke, 193 Va.

at 484, 69 S.E.2d at 487. In order to revoke a suspended

sentence for failure to maintain good behavior, the court must

have before it evidence that the defendant has not been of good

behavior. Hamilton, 217 Va. at 328, 228 S.E.2d at 557.

Appellant argues the court did not have evidence of failure

to maintain good behavior because the evidence presented by the

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Commonwealth did not constitute an unlawful act. We disagree.

In the context of appellant's appeal from the revocation of his

probation for the same misconduct, this Court recently held,

"[g]ood behavior is not limited to an avoidance of criminal

activity." Holden v. Commonwealth, 26 Va. App. 403, 409, 494

S.E.2d 892, 895 (1998). We perceive no reason to deviate from

that principle in the context of the revocation of appellant's

suspended sentence.
This Court has held that iniquitous, but not necessarily

illegal, conduct justifies a court's revocation of a suspended

sentence. See Bryce v. Commonwealth, 13 Va. App. 589, 591, 414

S.E.2d 417, 418 (1992) (citing United States v. Kendis, 883 F.2d

209 (3d Cir. 1989)) (fraud on the court); Cottrell v.

Commonwealth, 12 Va. App. 570, 574, 405 S.E.2d 438, 441 (1991)

(citing State v. Lintz, 509 P.2d 13, 15 (Mont. 1973)) (deceit,

untruthfulness, or deception at the time of sentencing). At oral

argument, appellant argued that these cases turned on the

violation of a specific condition of suspension, rather than a

general requirement of good behavior. Appellant's contention is

not supported by the cases. In Bryce, 13 Va. App. at 590-91, 414
S.E.2d at 417-18, we held that the defendant's fraud on the court

violated the requirement of good behavior. Similarly, in

Cottrell, 12 Va. App. at 574, 405 S.E.2d at 440, we held that

even if the defendant did not violate a specific provision of

suspension by testifying untruthfully, the court could revoke his

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suspension for "perpetrating a fraud on the court." We

explained, more generally, "[d]eceit, untruthfulness and

deception at the time of the sentencing are always grounds for

revoking a suspended sentence." Id. at 573-74, 405 S.E.2d at

440-41 (citing Lintz, 509 P.2d at 15) (emphasis added).

Appellant contends the decisions of this Court are in

conflict with the decisions of the Supreme Court of Virginia,

which has noted that, "'[g]ood behavior' has been defined as

meaning 'conduct conforming to the law.'" Griffin, 205 Va. at

353, 136 S.E.2d at 843. The Supreme Court of Virginia, however,

expressed no intent in Griffin to limit its definition of good

behavior. Rather, the Supreme Court reversed the court's

revocation because there was no "evidence[] that Griffin breached

the condition of the suspension order . . . by failing to be of

good behavior or for violation of any law." Id. (emphasis

added). By using the disjunctive to explain that the defendant

had neither failed to be of good behavior nor violated any law,

the Supreme Court recognized that the boundaries of good behavior

are not necessarily co-extensive with those imposed by law.

Our interpretation of Griffin is consistent with other
Virginia law. In Griffin, the Supreme Court stressed that a

court may revoke a suspended sentence "for any cause deemed by it

sufficient." Id. at 354, 136 S.E.2d at 844 (citing then Code

§ 53-275). This principle is currently codified at Code

§ 19.2-306. Of course, the statutory grant of authority is not

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without limits. See, e.g., Griffin, 205 Va. at 354, 136 S.E.2d

at 844; Dyke, 193 Va. at 484, 69 S.E.2d at 487. The Supreme

Court of Virginia has explained the breadth of a court's power to

revoke a suspended sentence for violation of a good behavior

requirement. Cf. Coleman v. Commonwealth, 5 Va. App. 459, 462,

364 S.E.2d 239, 241 (1988) (citing Gooding v. Wilson, 405 U.S.

518, 520 (1972)) (explaining that a state court may limit the

application of a statute). In Marshall, 202 Va. at 220-21, 116

S.E.2d at 273-74, the Supreme Court of Virginia wrote that "[i]t

seems entirely clear that the failure of a defendant to be of

good behavior, amounting to substantial misconduct, during the

period of the suspension would provide reasonable cause for
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revocation of the suspension."
In accordance with the precedents of the Supreme Court of

Virginia and this Court, we hold that a court may revoke a

defendant's suspended sentence for substantial misconduct not

involving violation of law. Marshall, 202 Va. at 220-21, 116

S.E.2d at 273-74. Accordingly, under the circumstances of this

case, we also hold that the trial court did not abuse its

discretion in revoking appellant's suspended sentence.

II.

Due Process Violation

Appellant contends the phrase "good behavior" does not

1
Appellant does not argue that his conduct does not rise to
the level of substantial misconduct.

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provide him with constitutionally sufficient notice as to what

behaviors may trigger revocation of his suspended sentence. 2

Because the revocation of a suspended sentence results in the

loss of liberty, the Due Process Clause governs the revocation.

See Lux v. Commonwealth, 24 Va. App. 561, 569 n.1, 484 S.E.2d

145, 149 n.1 (1997) (citing Copeland v. Commonwealth, 14 Va. App.

754, 756, 419 S.E.2d 294, 295 (1992)); Atkins v. Commonwealth, 2

Va. App. 329, 331-32, 343 S.E.2d 385, 387 (1986). In general,

due process requires that individuals have notice of those acts

which may lead to a loss of liberty. See, e.g., Marks v. United

States, 430 U.S. 188, 191 (1977). "When, as now, a court order

is read to proscribe conduct that is not in itself unlawful, the

dictates of due process forbid the forfeiture of an actor's

liberty by reason of such conduct unless he is given fair

warning." United States v. Gallo, 20 F.3d 7, 12 (1st Cir. 1994)

(citing cases).

Appellant was convicted of aggravated sexual battery on an

eleven-year-old boy, and five years of his sentence were

suspended on the condition that he exhibit good behavior. The
2
Appellant also argues that Code § 19.2-306 does not provide
constitutionally sufficient notice that writing letters
describing his pedophilic desires may trigger a revocation of his
suspended sentence and that Code § 19.2-306 is unconstitutionally
vague. These claims are procedurally defaulted because defendant
did not present them to the trial court. Connelly, 14 Va. App.
at 890-91, 420 S.E.2d at 245-46; Cottrell, 12 Va. App. at 574,
405 S.E.2d at 441. Although appellant cited the First and
Fourteenth Amendments in his motion to the trial court, he did
not argue that Code § 19.2-306 is constitutionally infirm, either
facially or as applied.

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record makes clear that appellant had actual notice that writing

letters containing graphic pedophilic material was inconsistent

with conduct constituting good behavior. Appellant's letters,

graphically describing his desire to sexually abuse children, are

closely related to aggravated sexual battery on a child for which

he was incarcerated. He also failed to disclose his activities

during his prison group therapy sessions, in which the

participants were encouraged to discuss their sexual thoughts in

a therapeutic setting for therapeutic purposes. Furthermore,

when confronted about his letter writing in his prison sex

offender group therapy session, he admitted to spending a great

deal of time in planning ways to act on his pedophilic obsession,

acknowledging implicitly his understanding of the relationship

between his letters and the conduct for which he was

incarcerated. Indeed, appellant's counselor characterized his

letters as part of a "continued and escalating involvement in

deviant sexual fantasies." Finally, appellant attempted to hide

his letters from prison authorities, an act which is inconsistent

with his contention that he lacked knowledge that his

letter-writing activities might be viewed as incompatible with

the condition of his suspended sentence.
The record thus establishes that appellant knew that

indulging in such conduct was inconsistent with the court's

condition that he be of good behavior. "[T]he fair warning

doctrine does not provide a safe harbor for probationers who

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choose to ignore the obvious." Gallo, 20 F.3d at 12. We hold,

therefore, that appellant had fair warning that his actions were

inconsistent with the good behavior condition of his suspended

sentence and affirm the trial court's revocation of his suspended

sentence.

Affirmed.

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