Alsberry v. Com.

• Decision Date: 03 December 2002
• Docket Number: Record No. 0826-01A.
• Citation: 572 S.E.2d 522,39 Va. App. 314
• Court: Virginia Court of Appeals
• Parties: Thomas Horace ALSBERRY v. COMMONWEALTH of Virginia.

572 S.E.2d 522

39 Va. App. 314

Thomas Horace ALSBERRY v. COMMONWEALTH of Virginia.

Record No. 0826-01A.

Court of Appeals of Virginia.

December 3, 2002.

S. Jane Chittom, Appellate Defender (Public Defender Commission, on brief), for appellant.

Eugene Murphy, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: ELDER, BUMGARDNER and CLE MENTS, JJ.

CLEMENTS, Judge.

Thomas Horace Alsberry appeals from a judgment of the trial court revoking his previously suspended sentence. On appeal, he contends the trial court erred (1) in refusing his request for a mental evaluation prior to sentencing him for his probation violation and (2) in imposing all of his previously suspended sentence, in excess of twenty-four years, for two misdemeanor probation violations. Finding no error, we affirm the judgment of the trial court.

On January 12, 1995, Alsberry was convicted of animate object sexual penetration and three counts of breaking and entering. He was sentenced to thirty years' imprisonment, with twenty-five of those years suspended on the condition he successfully complete five years of supervised probation upon his release.¹ In October of 1997, Alsberry was released from incarceration and placed on probation.

On May 27, 1998, Alsberry was found to have violated his probation for failing to maintain his registration as a sex offender and was ordered to serve an additional six months of the previously suspended sentence. On June 9, 1999, Alsberry was again found to be in violation of his probation for "hiding out in the nurses' locker room of the hospital." He was consequently required to serve an additional twelve months of the earlier suspended sentence. On November 15, 2000, Alsberry was found to have violated his probation for failing to maintain a stable residence. He was released with credit given against the susptended sentence of fifteen days for time served.

On January 19, 2001, Alsberry was arrested and charged with misdemeanor destruction of private property and "being a Peeping Tom." The general district court convicted him of those offenses and sentenced him to serve twelve months and thirty days in jail.

Following his arrest on those charges, the Commonwealth commenced the present probation revocation proceedings in the circuit court. After the presentation of evidence at the revocation hearing on March 1, 2001, Alsberry's attorney "ask[ed] the court for a psychological evaluation [of Alsberry], and an opportunity to place Mr. Alsberry back on probation." Finding Alsberry had violated his probation, the trial court revoked his probation and ordered him to serve the entire balance of his previously suspended sentence, a total of twenty-four years and five and one-half months.

On appeal, Alsberry contends the decision whether to order a mental evaluation before sentencing pursuant to Code § 19.2-300 is not discretionary. Because his animate object penetration conviction, one of the convictions for which he was originally sentenced, and his "Peeping Tom" conviction, upon which his probation revocation was partly based, were both convictions indicating sexual abnormality, he was explicitly entitled, he argues, to an evaluation. Therefore, he contends, the trial court erred, as a matter of law, in refusing his request for a mental evaluation before sentencing him for his probation violation.

"[A] trial court by definition abuses its discretion when it makes an error of law.'" Shooltz v. Shooltz, 27 Va.App. 264, 271, 498 S.E.2d 437, 441 (1998) (quoting Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)). "In determining whether the trial court made an error of law, `we review the trial court's statutory interpretations and legal conclusions de novo.'" Rollins v. Commonwealth, 37 Va. App. 73, 79, 554 S.E.2d 99, 102 (2001)

(quoting Timbers v. Commonwealth, 28 Va.App, 187, 193, 503 S.E.2d 233, 226 (1998)).

Code § 19.2-300 provides as follows:

In the case of the conviction in any circuit court of any person for any criminal offense which indicates sexual abnormality, the trial judge may on his own initiative, or shall upon application of the attorney for the Commonwealth, the defendant, or counsel for the defendant or other person acting for the defendant, defer sentence until the report of a mental examination conducted as provided in § 19.2-301 of the defendant can be secured to guide the judge in determining what disposition shall be made of the defendant.²

Accordingly, Alsberry is correct in asserting the decision to order a mental examination under Code § 19.2-300 is not discretionary when a defendant who has been convicted of an offense indicating sexual abnormality requests such an evaluation prior to sentencing for that conviction. See Simerly v. Commonwealth, 29 Va.App. 710, 717, 514 S.E.2d 387, 391 (1999)

. However, we do not agree with Alsberry that the trial court was required to order a mental examination before revoking the suspended portion of his previously imposed sentence for violating the terms of his probation.

Although a probation revocation hearing is a criminal proceeding, it is not "a stage of a criminal prosecution." Green v. Commonwealth, 263 Va. 191, 195-96, 557 S.E.2d 230, 233 (2002). Likewise, "[a] probation violation is not itself a criminal conviction." Merritt v. Commonwealth, 32 Va.App. 506, 509, 528 S.E.2d 743, 744 (2000). Rather, a "[r]evocation of probation is merely a modification of the sentence" imposed for a prior conviction. Id. at 508, 528 S.E.2d at 744. Hence, the issue at a revocation proceeding is not what sentence to impose upon the defendant for his prior criminal conviction, but whether to continue all or any portion of a previously imposed and suspended sentence due to the defendant's failure to abide by the terms of his probation.

Here, Alsberry was convicted on January 12, 1995, of several criminal offenses, including animate object sexual penetration. For those crimes, he was sentenced to thirty years' imprisonment, twenty-five years of which were suspended. On March 1, 2001, having found Alsberry to be in violation of the terms and conditions of his probation, based in part on his "Peeping Tom" conviction, the trial court revoked Alsberry's suspended sentence and ordered him to serve the remainder of his original sentence.

Accordingly, in revoking the previously suspended sentence and ordering Alsberry to serve the balance of that sentence, the trial court was not sentencing him on the animate object sexual penetration or "Peeping Tom" convictions. The sentences for those convictions had already been imposed pursuant to the respective criminal prosecutions of those offenses. Rather, the trial court was merely "modifying" the sentence previously imposed on Alsberry for his 1995 convictions. Thus, the trial court was not required under Code § 19.2-300 to grant Alsberry's request for a mental examination before revoking his suspended sentence due to the probation violation. We hold, therefore, that the trial court did not err, as a matter of law, in refusing to order a mental examination.

Alsberry also contends, in the alternative, that, given the circumstances of this case, the trial court's refusal to order a mental examination constituted an abuse of discretion. We disagree.

In discussing, in Simerly, the underlying purpose of Code § 19.2-300, we quoted from a report to the governor and legislature which stated that "`Mlle hope ... of reducing the number of serious sex crimes lies in a proper psychiatric screening of the potential criminal at the stage where abnormal behavior first comes to light.'" 29 Va.App. at 715 n. 2,514 S.E.2d at 390 n. 2 (emphasis added) (quotin...