Patterson v. Com.

• Decision Date: 30 July 1991
• Docket Number: No. 0421-90-1,0421-90-1
• Citation: 407 S.E.2d 43,12 Va.App. 1046
• Court: Virginia Court of Appeals
• Parties: John Timothy PATTERSON v. COMMONWEALTH of Virginia. Record

Page 43

407 S.E.2d 43

12 Va.App. 1046

John Timothy PATTERSON v.COMMONWEALTH of Virginia.

Record No. 0421-90-1.

Court of Appeals of Virginia.

July 30, 1991.

Andrew R. Sebok, Norfolk, for appellant.

H. Elizabeth Shaffer, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Before BARROW, COLEMAN and MOON, JJ.

BARROW, Judge.

In this criminal appeal, we hold that a conviction for petit larceny which occurred during the period of probation is sufficient cause to support revocation of the petitioner's suspended sentence even if evidence of the facts underlying the conviction is not presented.In addition, we hold that a continuance of the revocation proceeding is not required while an appeal of the underlying conviction is pending.

In 1987, pursuant to a plea agreement, the defendant was sentenced to three years in prison for petit larceny.The trial judge suspended the sentence and placed the defendant on three years probation.Terms for probation included conditions that the defendant be of "good behavior" and "obey all Municipal, County, State and Federal laws and ordinances."The defendant, while on probation, was arrested for petit larceny and, on October 23, 1989, was found guilty of the offense by a jury.The defendant appealed his conviction to this Court.

Less than one month after his October 23, 1989 conviction, the defendant was brought before the trial court for a show cause hearing concerning the effect of the conviction on his probation.At the hearing, defense counsel moved for a continuance "until the Court of Appeals has a chance to rule upon his appeal."The trial court denied the motion.Defense counsel argued that the defendant should not be found in violation of probation because "there are merits to the appeal and it is quite possible that the conviction will be overturned."Counsel stated, "we have no evidence, just argument."Based on evidence of the defendant's conviction by jury, the trial court found that the defendant had violated "one of the terms of his probation requiring him to obey all municipal, county, state and federal laws and ordinances."The court ordered that the defendant's previously suspended sentence be executed.

In Virginia, "[t]he court may, for any cause deemed by it sufficient which occurred at any time within the probation period ... revoke suspension of sentence and any probation."Code§ 19.2-306.A revocation of a suspended sentence must be based on reasonable cause, Marshall v. Commonwealth, 202 Va. 217, 220, 116 S.E.2d 270, 275(1960), but a court has broad discretion in making such a determination.Hamilton v. Commonwealth, 217 Va. 325, 326, 228 S.E.2d 555, 556(1976).Furthermore, "an alleged violation upon which revocation is based need not be proven beyond a reasonable doubt."Id.

The defendant argues that the evidence "is inadequate ... to establish that appellant's probation should have been revoked."However, at the show cause hearing, there was evidence before the court that, while the defendant was serving his suspended sentence on probation, he committed petit larceny and was convicted by a jury for that offense.We find this evidence sufficient to support the trial court's finding that the defendant had violated one of the terms of his probation.It matters not, as the defendant claims, that evidence of the underlying facts of the conviction was not presented.¹That the trier of fact in a criminal proceeding found beyond a reasonable doubt that the defendant violated a state law is sufficient evidence to support the trial court's finding.Therefore, the trial court did not abuse its discretion in revoking the defendant's probation.

The defendant also argues that the trial court erred in refusing to grant a continuance until this court has ruled on the appeal of his October 23, 1989 conviction.Specifically, the defendant contends that if this Court reverses his conviction on the merits, the trial court's only cause for revoking his probation will no longer exist.

The decision to grant or deny a continuance in a criminal case lies within the sound discretion of the trial court.Snyder v. Commonwealth, 10 Va.App. 67, 70, 389 S.E.2d 727, 729(1990).The exercise of this discretion must not "prejudice the defendant's right to a fair and impartial trial or deprive him of his constitutional right 'to call for evidence in his favor.' "Id. at 70-71, 389 S.E.2d at 729-30.

In applying these principles to a proceeding to revoke probation, a trial court may...