Opinion
Record No. 1835-92-3
January 18, 1994
FROM THE CIRCUIT COURT OF TAZEWELL COUNTY DONALD R. MULLINS, JUDGE.
Henry A. Barringer (Galumbeck, Simmons Reasor, on brief), for appellant.
Janet F. Rosser, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Coleman and Willis.
Argued at Salem, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Rodney Joe Hill contends that the trial court abused its discretion in revoking the suspension of his five year sentence for abduction and in reimposing the sentences he received for his October 2, 1991 misdemeanor convictions. We find no error and affirm the judgment of the trial court.
On March 16, 1989, Hill was sentenced to serve five years in the penitentiary for abduction. Hill's sentence was suspended on condition of his good behavior and he was placed on supervised probation. At a revocation hearing May 2, 1990, the trial court continued the suspension of sentence, but enlarged the conditions of suspension by requiring that Hill "have no contact with the complaining witness in this matter, Loretta Hill; that [he] abide by any and all terms and conditions as setforth [sic] by the [trial court]. . .; and further, [he] is to be of good behavior and not violate any conditions of his probation as designated by his probation officer. . . ."
On October 2, 1991, Hill was convicted of trespassing and destruction of private property. On November 19, 1991, he was convited of breaking and entering with intent to commit a misdemeanor. He was sentenced to serve eighteen months in jail with six months suspended and was placed on probation. Not found in the conviction order, but stated to Hill orally from the bench, was the following admonition by the trial judge:
THE COURT: I'm going to order you to stay at least ten miles away from the residence of Loretta Hill. Ten miles. Do you understand that?
MR. HILL: Yes, sir.
THE COURT: Now, if you don't and if you are seen within ten miles of her residence then that is a violation of your probation.
One of the two "Conditions of Probation" forms signed by Hill included the requirement that he not go within ten miles of Loretta Hill's home.
Hill's probation officer testified that he had instructed Hill not to go within ten miles of Loretta Hill's home. He also testified that Hill failed to appear for a probation docket review after being notified by letter to do so.
Police Officer Bales testified that an automobile accident, in which Hill was involved, occurred six miles from the town of Pocahontas and within the ten mile radius. Harry Sluss, who lived one-quarter of a mile from Loretta Hill, testified that Hill drove to his house approximately one to two months before the revocation hearing. Stacy Hall, Loretta Hill's daughter, testified that on March 8, 1992, as she got off her school bus two-tenths of a mile from her mother's house, someone called to her and she recognized the voice as Hill's. Other witnesses testified that they had seen Hill in the Pocahontas area in 1992, as close as one mile from Loretta Hill's home.
The trial court revoked the suspension of Hill's sentences and reimposed the five year sentence for his January 30, 1989 abduction conviction, the 180 day sentence for his October 2, 1991 trespassing and destruction of private property conviction, and the six month sentence for his October 4, 1991 breaking and entering conviction.
Hill first contends that the trial court erred when it revoked the five year suspended sentence for the 1989 abduction conviction for violating the condition that he stay at least ten miles from Loretta Hill's home. He argues that this was a condition only of the 1991 breaking and entering conviction. We agree that a violation of a particular condition of one sentence is not necessarily a violation of conditions relating to another sentence. However, if the condition is "good behavior," or something similar, then "bad behavior" violates the conditions of both sentences.
"A trial court has broad discretion to revoke a suspended sentence and probation based on Code § 19.2-306, which allows a court to do so 'for any cause deemed by it sufficient.' The court's findings of fact and judgment will not be reversed unless there is a clear showing of abuse of discretion." Davis v. Commonwealth, 12 Va. App. 81, 86, 402 S.E.2d 684, 687 (1991) (citing Hamilton v. Commonwealth, 217 Va. 325, 326-27, 228 S.E.2d 555, 556 (1976)). The trial court "'undoubtedly has the power to revoke [the suspension of a sentence] when the defendant has failed to comply with the conditions of the suspension.'" Russnak v. Commonwealth, 10 Va. App. 317, 321, 392 S.E.2d 491, 493 (1990) (quoting Griffin v. Cunningham, 205 Va. 349, 354, 136 S.E.2d 840, 844 (1964)).
The suspension of Hill's five year sentence for abduction required him to not violate any condition designated by the probation officer. When the probation officer wrote Hill requiring Hill to appear for docket review and he failed to appear, Hill clearly violated this condition. This justified the trial court's decision to revoke the suspension of Hill's sentence.
Hill also failed to obey the trial court after being given repeated opportunities to do so. He signed two different "Conditions of Probation" agreements, one of which explicitly required that he remain at least ten miles from Loretta Hill's home. However, on numerous occasions, witnesses saw Hill within the ten mile radius of Loretta Hill's home.
Hill next contends that when he was served on June 6, 1992, the "Designation of Probation Conditions Violated" read, "under the terms of your probation granted on1-30-89 and 11-19-91 . . . you have been arrested and detained for a violation of probation." He argues that the summons was inadequate notice for revocation of the suspension of the trespass and destruction of private property sentences imposed on October 2, 1991. See Code § 19.2-304; Cook v. Commonwealth, 211 Va. 290, 293, 176 S.E.2d 815, 818 (1970).
Hill did not raise this issue before the trial court. He cannot raise it for the first time on appeal. Rule 5A:18. Under the circumstances of this case, we find no reason to invoke the ends of justice exception. Hill had notice of the allegations of probation violation, was represented by counsel, and was given a proper hearing.
For these reasons, we affirm the trial court's decision.
Affirmed.