Bryce v. Com., 1174-90-2

• Citation: 414 S.E.2d 417,13 Va.App. 589
• Decision Date: 04 February 1992
• Docket Number: No. 1174-90-2,1174-90-2
• Parties: Oscar Zully BRYCE, s/k/a Linwood Benjamin, a/k/a Linwood Cyrus Berryman v. COMMONWEALTH of Virginia. Record
• Court: Court of Appeals of Virginia

Page 417

414 S.E.2d 417

13 Va.App. 589

Oscar Zully BRYCE, s/k/a Linwood Benjamin, a/k/a Linwood Cyrus Berryman v. COMMONWEALTH of Virginia.

Record No. 1174-90-2.

Court of Appeals of Virginia.

Feb. 4, 1992.

Russell C. Williams, Asst. Public Defender (David J. Johnson, Public Defender, on brief), for appellant.

Michael T. Judge, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BENTON, WILLIS and BRAY, JJ.

WILLIS, Judge.

On October 24, 1989, under the name Oscar Zully Bryce, the appellant pleaded guilty to grand larceny and was sentenced to serve four years in the penitentiary with three years suspended on condition of good behavior, pursuant to a plea agreement. When he was interviewed by a probation officer for supervision, it was discovered that Bryce also used the name Linwood Cyrus Berryman, and that he was already under probationary supervision. After conducting a hearing at which the foregoing facts were disclosed, the trial court revoked the suspension of sentence and ordered that the appellant serve those three years. ¹ On appeal, the appellant contends that the trial court erred (1) in finding that his use of an assumed name in his prosecution justified revocation of the suspension of his sentence, and (2) that the trial court erred in denying him a continuance for the purpose of obtaining further evidence. We find no error and affirm the judgment of the trial court.

The term of suspension of a sentence generally commences on the day of entry of the order imposing the suspended sentence. See Coffey v. Commonwealth, 209 Va. 760, 763, 167 S.E.2d 343, 345 (1969). The suspension of a sentence may be revoked upon a showing that its terms have been violated. generally, where the suspension is conditioned upon future good conduct, the revocation of the suspension must be predicated upon a showing of conduct which occurs subsequent to the imposition of the suspended sentence. The appellant contends that his use of an assumed name at trial and sentencing did not constitute new conduct which satisfied the requirement of this rule.

An exception to the foregoing general rule is recognized in cases involving fraud on a court. See United States v. Kendis, 883 F.2d 209 (3d Cir.1989). In Kendis, the accused, having been convicted of bank fraud, represented that he had made restitution to certain victims. In reliance on this representation, and upon condition that he make further restitution, the trial court imposed a suspended sentence. Upon determination that the restitution had been made with funds obtained by the perpetration of yet further frauds, the trial court revoked the suspension of the sentence. In affirming that judgment, the United States Court of Appeals for the Third Circuit said:

[W]e ... adopt the principle that revocation of probation is permissible when defendant's acts prior to sentencing constitute a fraud on the court.

Id. at 210.

In Cottrell v. Commonwealth, 12 Va.App. 570, 405 S.E.2d 438 (1991), the accused made a statement to the arresting officer implicating a confederate named Walls. Pursuant to a plea agreement, he was given a suspended sentence conditioned, in part, upon his testifying truthfully against Walls. He later recanted his accusation against Walls and insisted that if called to testify he would deny Walls' involvement in the crime. In affirming the judgment of the trial...