COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Senior Judge Overton
Argued at Richmond, Virginia
TONY P. MERRITT, S/K/A
TONY PATRICK MERRITT
OPINION BY
v. Record No. 0487-99-2 JUDGE JERE M. H. WILLIS, JR.
MAY 23, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUISA COUNTY
Lloyd C. Sullenberger, Judge
John R. Maus for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
On appeal from his conviction of grand larceny by receiving
stolen property, in violation of Code § 18.2-108, Tony P.
Merritt contends that the trial court erred in denying his
motion in limine to prohibit the Commonwealth from introducing
at his sentencing hearing evidence of his prior probation
violations. Because probation violations are a part of the
sentencing process and, thus, are part of the record of criminal
convictions, we affirm the judgment of the trial court.
A jury found Merritt guilty of grand larceny by receiving
stolen property, in violation of Code § 18.2-108. Merritt moved
the trial court to prohibit the Commonwealth from introducing
evidence of his probation violations resulting from previous
convictions. The trial court denied the motion, and the
Commonwealth presented evidence that Merritt had violated the
conditions of probation on four prior occasions.
Code § 19.2-295.1 provides, in relevant part:
In cases of trial by jury, upon a
finding that the defendant is guilty of a
felony, a separate proceeding limited to the
ascertainment of punishment shall be held as
soon as practicable before the same jury.
At such proceeding, the Commonwealth shall
present the defendant's prior criminal
convictions by certified, attested or
exemplified copies of the record of
conviction, including adult convictions and
juvenile convictions and adjudications of
delinquency. Prior convictions shall
include convictions and adjudications of
delinquency under the laws of any state, the
District of Columbia, the United States or
its territories.
Merritt contends that probation violations are not
"criminal convictions" and, therefore, evidence of such is
inadmissible at the sentencing phase of trial. By statute,
evidence of the defendant's record of prior criminal convictions
is admissible at sentencing. Evidence of the sentences imposed
on those convictions is also admissible. See Gilliam v.
Commonwealth, 21 Va. App. 519, 523-24, 465 S.E.2d 592, 594
(1996). "The sentence reflects the gravity of the offense and
the defendant's propensity for violence." Id. Revocation of
probation is merely a modification of the sentence. See Ralston
v. Robinson, 454 U.S. 201, 220 n.14 (1981). A probation
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violation, therefore, is an aspect of the sentencing process
imposed upon a criminal conviction.
This rationale serves the declared
purposes of punishment for criminal conduct.
"[T]he sentencing decision . . . is a quest
for a sentence that best effectuates the
criminal justice system's goals of
deterrence (general and specific),
incapacitation, retribution and
rehabilitation." United States v. Morris,
837 F. Supp. 726, 729 (E.D. Va. 1993); see
also Wilborn v. Saunders, 170 Va. 153, 160,
195 S.E. 723, 726 (1938); Nuckoles v.
Commonwealth, 12 Va. App. 1083, 1086, 407
S.E.2d 355, 356 (1991). Manifestly, the
prior criminal convictions of a felon,
including previous efforts to punish and
rehabilitate, "'bear upon a tendency to
commit offenses, the probabilities of
rehabilitation, and similar factors'"
indispensable to the determination of an
appropriate sentence. Thomas v.
Commonwealth, 18 Va. App. 656, 659, 446
S.E.2d 469, 472 (1994) (quoting Eaton v.
United States, 458 F.2d 704, 708 (7th Cir.),
cert. denied, 409 U.S. 880, 93 S. Ct. 208,
34 L.Ed.2d 135 (1972)).
Gilliam, 21 Va. App. at 524, 465 S.E.2d at 594-95.
A probation violation is not itself a criminal conviction.
It is, however, a continuation and part of the sentencing
process imposed for a criminal conviction and is, thus,
admissible as part of the sentence imposed for the prior
conviction. Thus, the trial court correctly denied Merritt's
motion in limine.
The judgment of the trial court is affirmed.
Affirmed.
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