Opinion
Record No. 0658-92-3
October 12, 1993
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY GEORGE E. HONTS, III, JUDGE.
William E. Bobbitt, Jr., Public Defender, for appellant.
Kathleen B. Martin, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Koontz, Elder and Fitzpatrick.
Argued at Salem, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Charles Danny Williams, appellant, appeals from the revocation of his suspended sentence for violating the terms of probation. He alleges that the trial court abused its discretion in revoking his suspended sentence based solely on his status as an alcoholic and his inability to control his drinking. For the reasons set forth below, we affirm the trial judge's finding that appellant violated the terms of his probation and the trial court's imposition of the suspended sentence.
In 1989, appellant was convicted of breaking and entering and petit larceny. After appellant had served twelve months in jail, the trial court suspended the remaining eight-year sentence and placed him on nine years of supervised probation, during which time he was "not [to] abuse alcohol and [to] get alcohol treatment." In February 1991, appellant was incarcerated again for violating his probation by continuing to drink and failing to attend a required alcohol rehabilitation program. Within two months of his release from a court-ordered alcohol treatment program, appellant was arrested for driving while intoxicated and driving after having been declared an habitual offender. Appellant pled guilty to the latter offense and was sentenced to one year in the penitentiary. The trial court also revoked one year of his previously suspended sentence. Appellant subsequently declined a chance for early release, which was conditioned on his entry into a halfway house treatment center.
Appellant had been instructed to resume outpatient substance abuse counseling following his release in late 1991, but he failed to do so and continued to drink. On February 21, 1992, he arrived three hours late for a meeting with his probation officer, John Brimmer, and, although appellant denied he was intoxicated, a urinalysis revealed a blood alcohol level of 0.107 percent. Brimmer then imposed a special condition that appellant consume no alcohol at all and that he enter a treatment facility. On February 24, 1992, however, Brimmer received a report from appellant's family that appellant had been "highly intoxicated over the previous weekend" and that he had created some sort of disturbance at his brother's home. Appellant was then charged with violating his probation, at which time he admitted that he had been abusing alcohol.
At his revocation hearing on March 20, 1992, appellant admitted that he had been drinking occasionally after his most recent release from jail, but denied all other reports concerning his behavior and level of intoxication. The trial judge revoked appellant's suspended sentence on the ground that he had continued to drink in violation of the conditions of his probation and continued to deny his problem. The trial judge also denied appellant's subsequent motion to reduce the sentence.
Code § 19.2-306 provides that a trial court may revoke probation and impose a suspended sentence "for any cause deemed sufficient." Said revocation "must be based on reasonable cause, . . . but a court has broad discretion in making such a determination," and it will not be reversed on appeal absent a clear abuse of discretion. Patterson v. Commonwealth, 12 Va. App. 1046, 1048, 407 S.E.2d 43, 44 (1991). However, if noncompliance is not willful, revocation is unreasonable and constitutes an abuse of discretion. Duff v. Commonwealth, ___ Va. App. ___, ___, 429 S.E.2d 465, 467-68 (1993) (involving stipulation that defendant's failure to pay court-ordered restitution was not willful). In spite of appellant's assertions, "conviction of a subsequent offense . . . is [not] required to justify a revocation of suspension due to misconduct. '[T]he failure of a defendant to be of good behavior, amounting to substantial misconduct, . . . provide[s] reasonable cause for revocation.'" Preston v. Commonwealth, 14 Va. App. 731, 734, 419 S.E.2d 288, 290-91 (1992) (quotingMarshall v. Commonwealth, 202 Va. 217, 220, 116 S.E.2d 270, 273-74 (1960)). Furthermore, "an alleged violation upon which revocation is based need not be proven beyond a reasonable doubt." Hamilton v. Commonwealth, 217 Va. 325, 326, 228 S.E.2d 555, 556 (1976). The rules of evidence do not apply in revocation proceedings and hearsay evidence may properly be admitted. Davis v. Commonwealth, 12 Va. App. 81, 84, 402 S.E.2d 684, 686 (1991). Finally, as in the case of any appeal to this Court,
"the credibility of the witnesses and the evaluation and weight of their testimony . . . are for the [trial] court." Where the record does not show upon what ground the judge revoked the suspension of sentence, the presumption is that it was upon a valid finding that the defendant had in some manner violated the condition of the suspension.
Cottrell v. Commonwealth, 12 Va. App. 570, 573, 405 S.E.2d 438, 440 (1991) (quoting Slayton v. Commonwealth, 185 Va. 357, 366-67, 38 S.E.2d 479, 484 (1946)).
Appellant's probation required that he "keep the peace, be of good behavior, obey all laws and the rules of the Probation Officer, not abuse alcohol and get alcohol treatment as provided by the Probation Officer, complete 200 hours of community service and pay the costs of [the] proceedings." In this case, the trial judge obviously chose to believe the testimony of Probation Officer Brimmer — that appellant had repeatedly violated the terms of his probation — over that of appellant. Brimmer's testimony revealed that appellant had (1) failed timely to enroll in a substance abuse counseling program, and (2) reported to an appointment with Brimmer both late and significantly under the influence of alcohol. The evidence also showed that appellant arrived at his brother's home in an intoxicated state and caused a disturbance. Although this evidence was based solely on Brimmer's testimony of reports received from members of appellant's family, hearsay is clearly admissible in a revocation proceeding. We conclude here, as we did inConnelly v. Commonwealth, 14 Va. App. 888, 420 S.E.2d 244 (1992) (involving illegal drug use), that "[appellant's] use [and abuse] of [alcohol] during the probationary period was inconsistent with the terms and conditions of the probation and evidenced [his] unwillingness to avail [himself] of the opportunity afforded by the court. Under such circumstances, the judgment of the trial court clearly constituted no abuse of discretion." Id. at 890, 420 S.E.2d at 245 (citation omitted); see State v. Boss, 838 P.2d 876, 877-78 (Idaho Ct.App. 1992); State v. Comer, 609 A.2d 693, 693-94 (Me. 1992);Kupec v. State, 835 P.2d 359, 361-63 (Wyo. 1992) (all involving revocation of probation based on the consumption of alcohol in violation of terms of probation).
Contrary to appellant's assertion, the trial court did not revoke appellant's probation based solely on his status as an alcoholic or his continued drinking in contravention of his probation officer's warnings. We do not address whether revocation would have been appropriate if appellant had continued to drink but was otherwise of good behavior in compliance with the terms of his probation — i.e., by participating in an alcohol treatment program, reporting on time for meetings with his probation officer, and generally abstaining from disruptive behavior.
For these reasons, we affirm the judgment of the trial court.
Affirmed.