Resio v. Com.

• Court: Virginia Court of Appeals
• Writing for the Court: BRAY.
• Citation: Resio v. Com., 513 S.E.2d 892, 29 Va.App. 616 (Va. App. 1999)
• Decision Date: 27 April 1999
• Docket Number: Record No. 2287-97-4.
• Parties: Edward T. RESIO, s/k/a Edward Thomas Resio v. COMMONWEALTH of Virginia.

513 S.E.2d 892

29 Va. App. 616

Edward T. RESIO, s/k/a Edward Thomas Resio v. COMMONWEALTH of Virginia.

Record No. 2287-97-4.

Court of Appeals of Virginia, Alexandria.

April 27, 1999.

Gail Starling Marshall, Rapidan, for appellant.

Kathleen B. Martin, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: BRAY, J., and DUFF and OVERTON, Senior Judges.

BRAY, Judge.

Edward T. Resio (defendant) appeals an order of the trial court revoking previously suspended sentences. Defendant contends the trial court erred because two of the three felony convictions that supported the revocation proceedings were later reversed by this Court. We affirm the revocation order but reverse the related sentence and remand to the trial court.

I.

On June 19, 1979, defendant was convicted of rape and burglary and sentenced to a total of sixty years imprisonment, with forty years suspended, conditioned upon fifteen years "active supervised probation and that he keep the peace and be of good behavior for the balance of his life." On November 9, 1989, defendant was released from incarceration to parole, which he successfully completed on May 1, 1991, followed by supervised probation.

While on probation, defendant was convicted for "abduction with the intent to sexually molest" (abduction) and "statutory burglary with the intent to rape" (burglary) and was sentenced on April 8, 1997, to forty-two years in the penitentiary. Defendant had previously pled guilty to a felonious firearm offense arising from his arrest on the burglary and abduction charges and sentenced to five years in prison, with four years suspended, pursuant to a plea agreement.

Following the three felony convictions, a probation official notified the local Commonwealth's Attorney that defendant had failed "`to obey all Municipal, County, State, and Federal laws and ordinances,'" a violation of "condition # 1" of probation, and recommended that he "be returned to court for a. . . [related] hearing." Accordingly, on motion of the Commonwealth, the trial court ordered defendant to "show cause ... why the remaining forty (40) years of the suspended sentence imposed on June 19, 1979, should not be revoked." The related revocation hearing was conducted on September 9, 1997, and defendant appeared before the trial court, represented by counsel.

Relying solely upon the three felony convictions as the basis of the show cause, the Commonwealth introduced the attendant orders to prove the offenses. Defendant acknowledged his probationary status and the three convictions.¹ However, he advised the court that, although he had pursued no appeal of the firearm offense, appeals of the abduction and burglary convictions were pending before this Court and "going along real good ... for a new trial." No further evidence was presented to the court.

At the conclusion of the hearing, the Commonwealth argued that the "seriousness of the offenses" suggested a "pattern in ... defendant's conduct" which "will once again endanger people" if he is permitted "to walk a free man in society for the rest of his life." In response, defendant's counsel recognized that the court "can consider [all] convictions" but "ask[ed] the court to also consider that. . . the most serious convictions are on appeal."

The court found "from the evidence that [defendant had] violated the terms of [his] suspended sentence in that [he had] not kept the peace and been of good behavior," Before pronouncing sentence, the trial judge admonished defendant:

You have a felony [firearm] conviction, which is not on appeal, and you have two convictions, which are on appeal. The Court considers them, understanding that they could be reversed. But still, you have not complied with the terms of your suspended sentences.

The previously suspended 1979 sentences were then revoked, and the court imposed the entire suspended portion, forty years. The court's "Sentencing Revocation Report" identified the abduction and burglary offenses as the "most serious new law violations," noting also that defendant had wrongfully "possess[ed] [a] firearm." The revocation order simply recited, "the court finds the defendant guilty of Violation of Probation" and imposed sentence.

Defendant subsequently appealed the order to this Court and, while his petition was pending before us, we reversed the abduction and burglary convictions that were before the trial court at the time of the revocation proceeding. Several days thereafter, we granted defendant's petition for appeal of the instant order. Defendant now argues that the "revocation relie[d] in whole or in substantial part on ... criminal conviction[s]... overturned on appeal" and, therefore, must also be reversed.

II.

Code § 19.2-306 provides, in pertinent part, that "[t]he court may, for any cause deemed by it sufficient which occurred at any time within the probation period, . . . revoke the suspension of sentence and any probation, if the defendant be on probation, and cause the defendant to be arrested and brought before the court." "A revocation... must be based on reasonable cause but a court has broad discretion in making such a determination." Patterson v. Commonwealth, 12 Va.App. 1046, 1048, 407 S.E.2d 43, 44 (1991) (citations omitted). "To put the matter another way, the sufficiency of the evidence to sustain ... revocation is a matter within the sound discretion of the trial court,. . . reversible only upon a clear showing of an abuse of such discretion." Slayton v. Commonwealth, 185 Va. 357, 367, 38 S.E.2d 479, 484 (1946); see Holden v. Commonwealth, 27 Va.App. 38, 41, 497 S.E.2d 492, 493 (1998).

"It is beyond question that `[a] court which has ordered a suspension of sentence undoubtedly has the power to revoke it when the defendant has failedto comply with the conditions of the suspension.'" Russnak v. Commonwealth, 10 Va. App. 317, 321, 392 S.E.2d 491, 493 (1990) (citation omitted). However, "Where is no requirement ... that the suspension [of sentence] may be revoked only upon the conviction of a subsequent criminal offense." Slayton, 185 Va. at 365, 38 S.E.2d at 483; see Holden, 27 Va.App. at 42-43, 497 S.E.2d at 494. "[G]ood behavior is a condition of every suspension, with or without probation, whether expressly so stated or not." Marshall v. Commonwealth, 202 Va. 217, 220, 116 S.E.2d 270, 273 (1960). Thus, "[i]t seems entirely clear that substantial misconduct ... would provide reasonable cause for revocation of the suspension." Id. at 220-21, 116 S.E.2d at 273-74. Manifestly, evidence that "the trier of fact in a criminal proceeding found beyond a reasonable doubt that [a] defendant violated a state law is sufficient. . . to support" revocation of a suspended sentence, notwithstanding the pendency of such conviction on appeal. Patterson, 12 Va. App. at 1049, 407 S.E.2d at 45.

When the record fails to disclose precisely "upon what ground the [court] revoked the suspension[,] [t]he presumption is that it was upon a valid finding that the [defendant] had in some manner violated the conditions of the suspension." Slayton, 185 Va. at 369, 38 S.E.2d at 485 (citation omitted). However, should the Commonwealth elect to rely solely upon a criminal conviction, without evidence of the related conduct, to establish the reasonable cause necessary to revocation, the "bare fact" of such conviction clearly becomes the basis for the revocation order. See Preston v. Commonwealth, 14 Va.App. 731, 734-35, 419 S.E.2d 288, 291 (1992). As a consequence, the fate of the "underlying conviction will determine the outcome of [an] appeal of the revocation proceeding." Patterson, 12 Va. App. at 1049,407 S.E.2d at 45. Should the predicate...