Hess v. Com.

• Citation: 441 S.E.2d 29,17 Va.App. 738
• Decision Date: 22 February 1994
• Docket Number: No. 1135-92-3,1135-92-3
• Parties: David Preston HESS v. COMMONWEALTH of Virginia. Record
• Court: Court of Appeals of Virginia

Page 29

441 S.E.2d 29

17 Va.App. 738

David Preston HESS v. COMMONWEALTH of Virginia.

Record No. 1135-92-3.

Court of Appeals of Virginia.

Feb. 22, 1994.

Robert M. Galumbeck, Tazewell (Galumbeck, Simmons & Reasor, on brief), for appellant.

Marla Lynn Graff, Asst. Atty. Gen. (Stephen D. Rosenthal, Atty. Gen., on brief), for appellee.

Present: MOON, C.J., and COLEMAN and WILLIS, JJ.

COLEMAN, Judge.

David Preston Hess appeals the trial court's order revoking his probation and suspension of imposition of sentence for the 1988 offense of maliciously having shot into an occupied dwelling. Based upon a finding that Hess violated the conditions of probation by wilfully destroying private property, a misdemeanor, the trial court revoked the probation and suspension of sentence and imposed a term of imprisonment. The same trial judge who had presided over the misdemeanor trial in which Hess had been found guilty of destroying private property also presided over the probation revocation proceeding. Hess contends that the judge erred in the revocation proceeding by going outside the record and basing his finding of a probation violation upon evidence that was not presented at the revocation hearing, but upon evidence that the trial judge recalled having heard during the misdemeanor prosecution, at which Hess had been convicted in absentia.

We hold that the trial judge erred by basing his decision to revoke probation and suspension of imposition of sentence upon testimony that he recalled from the misdemeanor prosecution, without his stating for or making part of the record the specific evidence upon which he relied to find that Hess had violated the conditions of probation and suspension of sentence. Accordingly, we reverse and vacate the revocation of suspension and imposition of sentence order. We remand the case to the trial court with leave to the Commonwealth's attorney or judge to conduct such further revocation and imposition proceedings as may be deemed advisable.

In 1988, pursuant to a plea agreement, Hess tendered a plea of guilty to maliciously shooting into an occupied dwelling. The trial judge accepted the plea, took the case under advisement for two years, and informed Hess that if he did not violate any penal laws and remained of good behavior, he would be permitted to withdraw the guilty plea to malicious shooting and would "receive a sentence of twelve months in ... jail ... suspended." Within the two year period of suspension, Hess was found guilty of destroying private property, a misdemeanor, which conviction is on appeal to this Court. Hess concedes that he had notice of the misdemeanor prosecution and did not appear.

As a result of the misdemeanor conviction, Hess was charged with violating the conditions of his probation and suspension of the imposition of his sentence. The same judge who presided over the misdemeanor prosecution for destroying private property also presided over the hearing to revoke Hess' probation and suspended sentence. At the revocation hearing, Hess' probation officer, Lewis Plummer, testified that, by being convicted of destroying private property, Hess had violated the conditions of his probation and suspension, to keep the peace and be of good behavior, conditions of which he had been informed. Plummer testified only to the fact of the misdemeanor conviction; he did not summarize or give an account of the crime or of the testimony of any of the witnesses. No transcript or excerpt from the misdemeanor trial with any details of the offense was introduced or made part of the revocation proceeding.

During the revocation hearing, the trial judge stated, "I have heard the evidence presented by your wife's daughter and I'm convinced that you are guilty of those actions." Defense counsel objected on the grounds that the judge was considering evidence from another case that was not part of the record and that neither Hess nor his current counsel had been present at that proceeding. The judge responded that Hess had notice of the misdemeanor trial and had the opportunity to be present and hear the same evidence that the judge had heard. The judge further stated:

I've listened to the evidence of your actions relative to the automobile of your wife's daughter during this two year period that the plea was under advisement.... I have heard the evidence presented by your wife's daughter and I'm convinced that you are guilty of those actions.

(emphasis added). At that point, defense counsel stated, "Judge, we would object to consideration by this court of the facts in that case. Neither the defendant nor his currently appointed counsel were present during that trial and had no notice of the facts presented in that case." The judge replied,

Well he did have notice of the trial date and failed to appear. He had all the opportunity in the world to listen to the same thing I heard. And so I'm going to use that as a basis for finding him in violation of the probation conditions that I set when I took his plea under advisement. So I'm going to find him guilty of that charge.

(emphasis added). Had the trial judge based the revocation upon the fact of conviction or held that he was familiar with the facts underlying the conviction, we may well have a different result. However, the trial judge made clear that he was not revoking the probation and suspension upon the fact of conviction, but rather upon the facts heard in testimony from a former trial as to what had occurred concerning damage to the defendant's wife's daughter's automobile.

"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.' " Davis v. Commonwealth, 12 Va.App. 81, 86, 402 S.E.2d 684, 687 (1991). "[W]hether to revoke the suspension of a sentence lies within the sound discretion of the trial court." Singleton v. Commonwealth, 11 Va.App. 575, 580, 400 S.E.2d 205, 208 (1991). "However, the trial judge may only revoke the suspension of a sentence for reasonable cause." Preston v. Commonwealth, 14 Va.App. 731, 733, 419 S.E.2d 288, 290 (1992). Conviction for a misdemeanor that occurred during the probationary period, even when the conviction is on appeal, is a reasonable cause to revoke probation and a suspended sentence. Patterson v. Commonwealth, 12 Va.App. 1046, 1047-48, 407 S.E.2d 43, 43-44 (1991). However, we are not here concerned with whether the evidence that Hess had been convicted was sufficient...