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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