Keselica v. Com.

• Decision Date: 28 November 2000
• Docket Number: Record No. 2270-99-4.
• Citation: 537 S.E.2d 611,34 Va. App. 31
• Parties: Michael George KESELICA v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

537 S.E.2d 611

34 Va. App. 31

Michael George KESELICA v. COMMONWEALTH of Virginia.

Record No. 2270-99-4.

Court of Appeals of Virginia, Richmond.

November 28, 2000.

John Kenneth Zwerling, (Lisa Bondareff Kemler; Zwerling & Kemler, P.C., on briefs), Alexandria, for appellant.

Richard B. Smith, Senior Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: BUMGARDNER, HUMPHREYS and CLEMENTS, JJ.

BUMGARDNER, Judge.

Michael G. Keselica appeals the revocation of his suspended sentence for violating the terms of his probation. He contends the trial court shifted the burden of proof to him and denied him the opportunity to present evidence at the show-cause hearing. He also contends the trial court abused its discretion in revoking seven years of his eleven-year suspended sentence. Concluding the trial court did not err, we affirm.

In 1995, the trial court convicted the defendant of embezzling $62,000 from an elderly couple. The trial court suspended a major portion of the sentence and ordered restitution under a plan proposed by the defendant.¹ In September 1999, the trial court issued a rule to show cause that alleged the defendant violated two conditions of probation. Condition 3 required the defendant to pay restitution of $1,000 per month to the victims from whom he embezzled money. He admits he missed payments but asserts his failure was not willful.² Condition 6 required the defendant to cooperate and be honest with his probation officer. The defendant does not contest he violated that condition. While the defendant had made substantial payments in Virginia, he had only made two payments in the eight months preceding the hearing. The trial court found the defendant violated both conditions of probation.

The record reflects the trial judge did not shift the burden of proof or prohibit the defendant from presenting evidence. The judge noted the defendant "has the burden of showing cause why the suspended sentence should not now be put into effect if I find that the Commonwealth's evidence is sufficient to prove that there's a violation of the terms of his probation." (Emphasis added). The probation officer testified about the defendant's probation adjustment. He did not pay restitution consistently in either Virginia or Maryland and deceived his probation officers. After the Commonwealth rested, the trial court asked if the defendant wished to present evidence, and the defendant elected not to do so.

The defendant argues that his failure to make restitution was not willful. He relies upon Duff v. Commonwealth, 16 Va.App. 293, 429 S.E.2d 465 (1993). In Duff, the parties agreed that the failure to pay restitution "resulted from an inability to pay . . . rather than from an unwillingness or refusal to do so." Id at 296, 429 S.E.2d at 466. The trial judge noted there was no evidence the defendant was "holding back on us or trying to pull the wool over our eyes" and "I'm ... confident ... he is not perpetrating any fraud ... on us." Id. at 295, 429 S.E.2d at 466. The revocation was unreasonable because the violation was not willful or the result of fraud. Id. at 298, 429 S.E.2d at 467 (analyzing Code §§ 19.2-305.1 and -306). In this case, there was no evidence the defendant's failure resulted from an inability to pay. The defendant had continued making monthly payments from February to August 1998 despite being out of work. He moved to Rhode Island and earned net wages of approximately $2,000 per month. The defendant represented his father could pay the entire balance due.³

While the defendant suggested non-payment resulted from owing restitution in both Virginia and Maryland, the defendant had originally submitted the restitution plan. He had assured the trial court he could handle the dual obligations and he would consistently pay $1,000 per month in Virginia. Indeed, the trial court ameliorated its original sentence based on the representation the defendant had the ability to pay consistently, and the defendant never sought to amend the order. The trial judge believed the defendant intentionally misrepresented facts to both probation officers and both courts.

While the defendant maintained his failure to pay was not willful, he did not take advantage of his opportunity to present evidence to show why he had not paid or why his sentence should not be revoked. The trial court could infer from the Commonwealth's evidence that the defendant was playing one court against the other and his non-payment was willful. The judge noted that after the Commonwealth established the defendant's failure to pay restitution, "then the burden... shift[ed] to the Defense to put on evidence of any inability to pay." The trial court did not abuse its discretion in finding a probation violation.

Next, we consider whether the trial court abused its discretion in revoking seven...