Opinion
Record No. 2348-93-1
Decided: April 25, 1995
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH, John K. Moore, Judge
Andrew G. Wiggin (Office of the Public Defender, on brief), for appellant.
Marla Lynn Graff, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Baker, Benton and Senior Judge Hodges
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Appellant, Wyatt Crowder, appeals from a judgment order revoking the suspension of a penitentiary sentence earlier imposed upon him by the trial court. On appeal, he contends that the trial court committed reversible error by finding that he violated his suspended sentence. We affirm the judgment of the trial court.
I.
On April 15, 1992, appellant entered into a plea agreement with the Commonwealth concerning a grand larceny charge. The plea agreement contained the following disposition:
Five years in the VSP. Three of those years are suspended conditioned on (1) two years to serve in the VSP (2) three years good behavior upon release (3) payment of court costs.
The trial judge accepted appellant's guilty plea and sentenced appellant in accordance with the plea agreement.
The sentencing order stated, in part:
In accordance with the Plea Agreement, the judgment of the Court is that the defendant be sentenced to confinement in the penitentiary for the term of: 5 years.
The Court suspends 3 years of the sentence upon the following conditions:
That the defendant be of good behavior for 3 years upon release from confinement . . . .
Upon the acceptance of the plea agreement, the trial judge said the following:
[T]he court sentences you to a term of five years in the Virginia State Penitentiary. The court will suspend the execution of three of those years conditioned upon your good behavior for a period of three years following your release from custody . . . .
Appellant, while serving this sentence, escaped from custody on May 6, 1993. Appellant was convicted of that escape on July 14, 1993. On November 17, 1993, the court held a hearing to require appellant to show cause why the suspension of sentence imposed upon him on April 15, 1992 should not be revoked.
The trial judge, citing Code Sec. 19.2-306, ruled that the court had the authority to revoke the suspension of sentence "at any time within [the] five-year sentence or any time within the probation or the period of suspension for any cause that it deems sufficient . . . ." The trial judge found that the conviction of escape, which occurred just over one year after appellant's original conviction, was a "sufficient reason" and revoked the suspended sentence.
II.
Code Sec. 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." The cause deemed by the trial judge to be sufficient for revocation must be a "reasonable" cause. Marshall v. Commonwealth, 202 Va. 217, 220, 116 S.E.2d 270, 273 (1960).
Appellant's sentencing order stated that three years of the five-year sentence were suspended provided that "[appellant] be of good behavior for 3 years upon release from confinement." Appellant construes this provision to require good behavior only after release from confinement and not during confinement. He argues that his escape, while serving the unsuspended portion of the original sentence, was not a release from confinement. Therefore, the three year period of good behavior had not yet begun.
In Coffey v. Commonwealth, 209 Va. 760, 167 S.E.2d 343 (1969), the Supreme Court stated:
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 . . . probation had begun. . . . When the court saw that the defendant, by his involvement in the four felony offenses . . . had rebuffed the opportunity extended him and had displayed an unwillingness to be rehabilitated, it had the power to invoke the condition of good behavior which had attached to the suspension from the beginning.
Id. at 763-64, 167 S.E.2d at 345-46.
In Marshall, the sentences imposed upon the accused were suspended, but there was no provision in the court's sentencing order that the suspensions were on condition of good behavior. Marshall, 202 Va. at 218-19, 116 S.E.2d at 272-73. Marshall contended that the court was without power to revoke the suspensions in the absence of such a condition.
Marshall also involved former Code § 53-275.
In holding that this contention was without merit, the Court said:
While the language of the suspensions does not in terms include a condition of good behavior, that condition is implicit in every such suspension and constitutes the origin and purpose of the suspension and probation statutes. . . . When a trial court suspends a sentence it "does not make a contract with the accused, but only extends to him the opportunity which the State affords him to repent and reform."
* * * * * * *
[W]e now hold, in view of the purpose and history of the statute and the liberal construction to be given it, that the proper construction is that the phrase "during good behavior" qualifies the power to suspend, as well as the power to place "on probation under the supervision of a probation officer," and that good behavior is a condition of every suspension, with or without probation, whether expressly so stated or not.
Id. at 219-20, 116 S.E.2d at 273.
Accordingly, appellant's contention that the sentencing order required only that he maintain good behavior for three years after release from confinement is without merit. This condition merely established the required period of good behavior after release. It had no effect on the implicit condition of suspension that appellant was to remain on good behavior from the time the sentencing order was entered. See Coffey, 209 Va. at 764, 167 S.E.2d at 346; Carbaugh v. Commonwealth, 19 Va. App. 119, 126, 449 S.E.2d 264, 268 (1994) ("[A] suspension of sentence is effective immediately upon entry of the conviction order that suspends the sentence"); Bryce v. Commonwealth, 13 Va. App. 589, 590, 414 S.E.2d 417, 418 (1992) ("The term of suspension of a sentence generally commences on the day of entry of the order imposing the suspended sentence."). Therefore, when appellant escaped, he violated the condition of good behavior. Accordingly, the escape provided reasonable cause for revocation, and the trial judge did not abuse his discretion in revoking the suspended sentence. See Singleton v. Commonwealth, 11 Va. App. 575, 580, 400 S.E.2d 205, 208 (1991).
For the reasons stated, the judgment of the trial court is affirmed.
Affirmed.