Opinion
Record No. 1593-92-2
March 22, 1994
FROM THE CIRCUIT COURT OF WESTMORELAND COUNTY JOSEPH E. SPRUILL, JR., JUDGE.
C. Marshall Davison (Wilkins, Davison Emery, on brief), for appellant.
Janet F. Rosser, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Barrow, Benton and Coleman.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Richard Darnell Haynes appeals the trial court's order revoking four years of his suspended six-year sentence. He contends that because he was imprisoned serving the active part of his sentence, the trial court lacked authority to revoke his probation and suspended sentence, the conditions of which were not yet in effect. Although we agree that the time when Haynes' probation began and the conditions thereof were not in effect, we disagree that the suspended sentence and conditions of suspension did not apply while Haynes was imprisoned. Therefore, we affirm the revocation of the suspended sentence.
On December 3, 1981, Haynes was convicted of maiming and was sentenced to fifteen years imprisonment, with six years suspended and fifteen years of unsupervised probation. The sentencing order required Haynes to "keep the peace and be of good behavior" and remain on unsupervised probation for fifteen years. On June 11, 1992, the trial court revoked four years of Haynes' six-year suspended sentence based on evidence that Haynes had been convicted on May 12, 1985, of injuring a correctional facility employee while in prison in violation of Code § 18.2-55 and that he had made threatening telephone calls from prison to his mentally deficient daughter and her mother. In addition, Haynes had been cited with sixty-five prison rule violations, including assaults, threatening bodily harm, possessing a weapon, possessing intoxicants, setting a fire, and intentional destruction of state property.
The order read, "fifteen (15) years in the penitentiary . . . with six (6) years suspended . . . and that defendant keep the peace and be of good behavior and remain on probation without supervision for a period of fifteen (15) years."
The issues that we consider on appeal are (1) whether a trial judge has the authority to revoke a suspended sentence for misconduct committed while the convict is in prison serving the active sentence and before the probation and conditions of probation begin; (2) whether Code § 19.2-306 authorizing revocation of probation or a suspended sentence "for any cause deemed . . . sufficient" is unconstitutionally vague as applied to Haynes; (3) whether the procedures employed at the revocation hearing denied Haynes due process; and (4) whether revoking Haynes' suspended sentence for offenses that had been used to revoke his "good time" and extend his sentence violated the guarantee against twice being put in jeopardy. The claims are without merit; therefore, we affirm the trial judge's ruling revoking Haynes' suspended sentence.
AUTHORITY TO REVOKE
Haynes makes a three-fold argument that the trial court lacked authority to revoke his suspended sentence: first, he contends that under Code § 19.2-306, where probation is imposed as a condition of a suspended sentence, the court may only revoke the suspended sentence for a violation of the conditions of probation occurring during the term of probation; second, because the "cause" for revocation occurred before the term of probation commenced, no violation of the conditions of probation could have occurred; and third, because a term of probation was imposed and the court has power to revoke a suspended sentence only "if no" term of probation was imposed, the court could not revoke the suspended sentence. Haynes suggests a strained and illogical construction of Code § 19.2-306. We hold that Code § 19.2-306 authorizes a trial judge to revoke a suspended sentence based on criminal misconduct violating the conditions of suspension, even though committed while the convict is incarcerated and before his active probation begins.
In Virginia, a court's power to revoke probation and/or a suspended sentence is governed by statute. Grant v. Commonwealth, 223 Va. 680, 684, 292 S.E.2d 348, 350 (1982);Dyke v. Commonwealth, 193 Va. 478, 479, 69 S.E.2d 483, 484 (1952). Whether the trial court had authority to revoke Haynes' suspended sentence before the period of probation began requires that we construe the provisions of Code § 19.2-306. Code § 19.2-306 provides that a trial judge may revoke probation or a suspended sentence, "for any cause deemed by it sufficient which occurred at any time within the probation period, or if none, within the period of suspension fixed by the court, or if neither, within the maximum period for which the defendant might originally have been sentenced to be imprisoned." (Emphasis added.)
Haynes' sentencing order provided for and fixed a "probation period." The order stated that after serving his penitentiary sentence, Haynes would be on "probation without supervision for a period of fifteen (15) years." Haynes construes the provisions of Code § 19.2-306 to be successively exclusive — that is to say, where probation and conditions of probation were imposed, the court may only consider revoking probation. He argues that the court cannot look to another provision of the statute to consider revoking a suspended sentence unless, after the period of probation expires, a period of suspension of sentence continues in effect. Haynes reads the controlling words, "if none," to limit a court's power to revoke a suspended sentence to situations where no "probation period" exists or it has expired. Also, Haynes construes the phrase, "period of suspension fixed . . . or if neither," to apply only where there has been no probation imposed and no fixed period for a suspended sentence. Applying this construction to the facts, Haynes argues that although the December 3, 1981, sentencing order specified a probation period, the acts of misconduct did not occur within the probation period. Therefore, because his misconduct occurred while he was incarcerated and before his probation period, the "if none" and "if neither" language did not apply, and because the misconduct did not occur during the probation period, the trial judge had no statutory authority to revoke either his probation or his suspended sentence.
We reject Haynes' construction of Code § 19.2-306. An argument similar to that made by Haynes was advanced in Coffey v. Commonwealth, 209 Va. 760, 167 S.E.2d 343 (1969). AlthoughCoffey involved the predecessor to Code § 19.2-306, the appellant argued that his suspended sentence could not be revoked because his status of being on probation had not begun. The Coffey order provided that the sentence be suspended, "upon condition that the said accused . . . be of good behavior in all respects for the term of five years from the date of his release after serving sentence . . . and he is hereby placed on probation . . . during the term of five years aforesaid."Id. at 761, 167 S.E.2d at 344. Coffey asserted that his felony offenses, which occurred prior to beginning his probation, could not be the "cause" for revoking his suspended sentence.Id. The Supreme Court rejected Coffey's argument, stating,
[t]he effect of the trial court's order was to fix two periods to which the condition of good behavior attached. . . . The first was a period of suspension without probation to commence . . . the date the sentence was suspended, and to run until the defendant began supervised probation. The second was a period of suspension with probation. . . . In either event, the condition of good behavior was in effect at the time the defendant committed the new offenses. . . .
When the trial court suspended the sentence of the defendant, it could not and did not enter into an agreement with him to ignore all subsequent misbehavior on his part until his . . . probation had begun.
Id. at 763-64, 167 S.E.2d at 345-46. See also United States v. Johnson, 892 F.2d 369, 372 (4th Cir. 1989) ("the power to revoke probation for acts which occur prior to the probationary period is sound policy").
Although Coffey involved the predecessor to Code § 19.2-306, that statute also empowered a trial judge to "revoke the suspension of sentence and any probation, if the defendant be on probation" in successively disjunctive situations. Code § 19.2-306 is successively disjunctive, not successively exclusive, as Haynes argues. First, the court may revoke probation for any sufficient "cause" that "occurred at any time within the probation period." Second, "if none" — i.e. if there is no probation period applicable at the time "any cause" "occurred" — the court may revoke the suspended sentence for "any cause" that "occurred" "within the period of suspension fixed by the court." Finally, if "cause" "occurred" during no period of probation and the court had fixed no specific term for suspending the sentence, then "if neither" (that is, neither a period of probation nor fixed period of suspension), the court is empowered to revoke a suspended sentence for any cause occurring "within the maximum period for which the defendant might originally have been sentenced to be imprisoned." Code § 19.2-306.
In Haynes' situation, because the "cause" for revocation did not "occur" during the period of probation, there was "none" for purposes of revoking probation. "An order granting probation is not a sentence to confinement. Indeed, it has exactly the opposite effect." Vick v. Commonwealth, 201 Va. 474, 477, 111 S.E.2d 824, 826 (1960). Thus, a sentence imposing probation does not begin until the convict is released from prison; however, "[t]he term of suspension of a sentence generally commences on the day of entry of the order imposing the suspended sentence." Bryce v. Commonwealth, 13 Va. App. 589, 590, 414 S.E.2d 417, 418 (1992). Thus, the court, in order to revoke Haynes' suspended sentence, could do so if the violation "occurred" during a fixed period of suspension, or if neither probation nor a fixed period of suspension, within twenty years from when his sentence for maiming was imposed. See Code §§ 18.2-51 and 18.2-10. The terms of the suspended sentence, to keep the peace and be of good behavior, applied at the time that Haynes' violations "occurred," thereby giving the trial judge "cause" to revoke the suspended sentence. We need not decide whether the trial judge implicitly "fixed" a fifteen-year period of suspension to end at the same time the fifteen-year unsupervised probation would end, or whether the third disjunctive phrase of Code § 19.2-306 would authorize the court to revoke for any "cause" "occurring" within twenty years from when the sentence was imposed. The "cause" for revoking "occurred" within whichever period of suspension applies, whether it be fixed or not. Haynes' conviction for injuring a correctional officer in violation of Code § 18.2-55 while his sentence was suspended violated the condition of suspension and justified the court in revoking the suspended sentence.
A period of supervised probation and a period for a suspended sentence are distinct concepts, see Coffey, 209 Va. at 763, 167 S.E.2d at 345, and are frequently imposed by sentencing courts at different intervals to accomplish different goals. Sentencing orders frequently fail to clarify, however, whether periods of suspension of sentence and probation are fixed for the same or different periods of time, particularly where courts denominate probation as "unsupervised." Trial judges intending that a sentence shall be suspended for a fixed period, even where the period of supervision is to expire at the same time as the period of probation, should clearly state the respective periods of suspension and the period of probation in the sentencing order.
CONSTITUTIONAL VAGUENESS
Code § 19.2-306 empowers trial judges with discretion to revoke a suspended sentence "for any cause deemed . . . sufficient." Although facially the statute confers wide discretion upon trial judges, Haynes has failed to show that, as applied to him, the statute is vague or overbroad. The proposition that a statute may be unconstitutionally vague is premised on the notion that no person shall be held criminally responsible for conduct which the person could not reasonably understand to be proscribed.Welsh v. Commonwealth, 14 Va. App. 300, 318, 416 S.E.2d 451, 461 (1992), aff'd ___ Va. ___, ___ S.E.2d ___ (1993). The test as to whether a statute is unconstitutionally vague is whether a reasonably intelligent person could have known that his conduct was forbidden by the challenged law. Smith v. Commonwealth, 8 Va. App. 109, 115, 379 S.E.2d 374, 377 (1989).
As applied to Haynes, a reasonably intelligent person would know that an assault upon a correctional officer and threats to kill one's daughter and her mother are in violation of the conditions of his 1981 suspended sentence order "to keep the peace" and "to be of good behavior." The "cause deemed sufficient" under Code § 19.2-306 to revoke Haynes' suspended sentence was his failure "to keep the peace" and be of "good behavior." The phrase "to keep the peace and be of good behavior" is conduct conforming to the law. Marshall v. Commonwealth, 202 Va. 217, 221, 116 S.E.2d 270, 274 (1960).See Fedele v. Commonwealth, 205 Va. 551, 553, 138 S.E.2d 256, 258 (1964) ("term originated in the common law of England and was crystallized in two ancient English statutes. 1 Edw. III, Stat. 2, ch. 16 (1327); 34 Edw. III, ch. 1 (1360)").
Irrespective of the fact that Haynes had numerous violations of prison rules, he was convicted of a felony in violation of Code § 18.2-55, and he had threatened to kill his daughter and her mother. The trial judge did not, as to Haynes, apply Code § 19.2-306 in an overly broad or vague fashion.
DUE PROCESS
Haynes was not denied due process at his revocation proceeding when evidence of his institutional rule violations and threats to his daughter and her mother were introduced, even though that evidence may have been inadmissible in a criminal trial. A revocation proceeding is not a significant stage of a criminal prosecution requiring the same safeguards as those required at the guilt finding stage. Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973); Morrissey v. Brewer, 408 U.S. 471, 480 (1972);Adkins v. Commonwealth, 2 Va. App. 329, 331-32, 343 S.E.2d 385, 387 (1986). Nevertheless, a convicted felon with a suspended sentence is entitled to due process in a revocation hearing commensurate with the liberty values at risk, taking in account the fact that the convict has been found guilty beyond a reasonable doubt. Adkins, 2 Va. App. at 331-32, 343 S.E.2d at 387.
First, Haynes contends that his voluminous record of institutional rules infractions prejudicially and improperly influenced the judge. The judge held that Haynes' violations of the prison's rules were "inconsequential" in light of his 1985 conviction of unlawfully wounding a correctional facility employee. They did not serve as a basis for the judge's revocation of the suspended sentence. Furthermore, the rules of evidence are relaxed in a revocation proceeding. Davis v. Commonwealth, 12 Va. App. 81, 84, 402 S.E.2d 684, 686 (1991). Whether violations of the institutional rules are sufficient to constitute misconduct or "cause" "deemed sufficient" depends upon the nature of the violation. The trial judge did not abuse his discretion by admitting the evidence of rule violations and by considering whether the violations were a failure to keep the peace and be of good behavior.
Second, Haynes contends the trial court erred in admitting inflammatory and unreliable hearsay evidence of his threats to kill his daughter and her mother. "[H]earsay evidence, which would normally be inadmissible in a criminal trial, may be admitted into evidence in a revocation hearing based on the court's discretion." Davis, 12 Va. App. at 84, 402 S.E.2d at 686. As noted, a trial judge may admit hearsay evidence in a revocation proceeding. The trial judge did not err by admitting hearsay evidence that Haynes had made threatening phone calls to his daughter. The trial judge did not abuse his discretion by admitting hearsay in the revocation proceeding.
DOUBLE JEOPARDY
The imposition of administrative penal sanctions, such as the revocation of "good time" credit, does not raise a double jeopardy bar to subsequent criminal prosecution for the same conduct. United States v. Newby, ___ F.3d ___, ___ (3d Cir. 1993). Similarly, double jeopardy protections are not triggered by a criminal conviction being used as the basis for revoking probation or parole. United States v. Hanahan, 798 F.2d 187, 189 (7th Cir. 1986). In the double jeopardy context, no rational basis exists for distinguishing between the revocation of a suspended sentence and revocation of probation or parole. The fact that a criminal conviction for which a person is separately punished is used as the basis to revoke a suspended sentence does not violate double jeopardy protections. The usual and basic conditions of probation, parole, and a suspended sentence are that the convict will keep the peace and be of good behavior — which conditions clearly require that the convict not violate the law. A criminal whose suspended sentence or parole or probation is revoked for subsequent criminal conduct is being punished for the original crime and not twice for the subsequent crime. The judgment of the trial court is affirmed.
Affirmed.