Russnak v. Com.

• Court: Virginia Court of Appeals
• Writing for the Court: BENTON
• Citation: Russnak v. Com., 392 S.E.2d 491, 10 Va.App. 317 (Va. App. 1990)
• Decision Date: 08 May 1990
• Docket Number: No. 1448-88-2,1448-88-2
• Parties: Carl David RUSSNAK v. COMMONWEALTH of Virginia. Record

Page 491

392 S.E.2d 491

10 Va.App. 317

Carl David RUSSNAK v. COMMONWEALTH of Virginia.

Record No. 1448-88-2.

Court of Appeals of Virginia.

May 8, 1990.

Gary A. Hicks, for appellant.

Marla Lynn Graff, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BENTON, COLEMAN and DUFF, JJ.

BENTON, Judge.

While on parole, Carl David Russnak was ordered by the trial judge to show cause why a fifteen year suspended prison sentence should not be revoked. Russnak appeals from an order which, although not revoking the suspended sentence, required restitution and imposed supervised probation, neither of which condition was imposed in the sentencing order. Russnak contends: (1) that there was no proof of a violation sufficient to sustain an adverse ruling; and (2) that the ordering of restitution and probation was tantamount to imposition of a new sentence. For the reasons that follow, we reverse the judgment on the show cause order.

In October 1986, Carl Russnak pled guilty to grand larceny in violation of Code § 18.2-95, and he requested a presentence report. At the December 1986 sentencing hearing, defense counsel told the trial judge:

I should also point out, in addition, Your Honor, that with reference to the amount of money taken from Shoney's, both the attorney for Shoney's, and Shoney's and Mr. Russnak and myself have been working together diligently towards the restitution with the restoration of the motorcycle that was ... purchase[d] ... with the funds.... [T]hat motorcycle has now been transferred in terms of ownership over to Shoney's and we are working towards the aspect of Shoney's either keeping the bike themselves and coming to some agreed-upon sum or having that bike sold at some period of time and applying that towards restitution. So the spirit of cooperation between him and his former employer is still there as well as having applied to that his paychecks that he still has coming to him. ¹

The trial judge sentenced Russnak to twenty years imprisonment with fifteen years suspended, on the condition that he "keep the peace, be of good behavior, violate no law of the Commonwealth or any other jurisdiction and that the Commonwealth recover against the defendant its costs by it about its prosecution in this behalf expended." The sentencing order contained no mention of restitution or probation.

Russnak was paroled from the penal system in March 1988. Five months later, the trial judge issued a show cause order based upon the Commonwealth's allegation that Russnak "has made no restitution to [the restaurant] nor restitution to the Commonwealth for the costs involved in his extradition." At the show cause hearing, a probation and parole officer testified that Russnak was assigned to her in March 1988 upon his parole. She further testified that Russnak had been employed since May following his release and that he had not made restitution. On cross-examination, the parole officer stated that following Russnak's release on parole the following occurred:

I went over the court order with [Russnak] and indicated to him that the court order did not indicate that he had to pay restitution nor that he was on probation for the offense, therefore, I could not require that he make restitution or that he be supervised on probation. He's only on parole supervision.

Relying on Code § 19.2-305.1(A), the trial judge ruled that restitution was inherently part of the suspended sentence. ² He ordered Russnak to pay $2,188.01 restitution to the restaurant and to pay the Commonwealth its costs in extraditing Russnak from Texas for the 1986 trial. In addition, he ordered that Russnak be placed on supervised probation.

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 failed to comply with the conditions of the suspension." Griffin v. Cunningham, 205 Va. 349, 354, 136 S.E.2d 840, 844 (1964). The Commonwealth asserts this principle and argues that "[i]n light of § 19.2-305.1(A) some form of restitution was implicit in the [sentencing] order since a suspended sentence was imposed." We disagree with that interpretation of the sentencing order. We conclude, instead, that the trial judge lacked authority to modify the sentencing order.

Code § 19.2-305.1 contains the statutory scheme for ordering the payment of restitution by persons "convicted of a crime in violation of any provision in Title 18.2." When a trial judge determines that restitution has not been paid, the statute requires that the trial judge, "[a]t the time of sentencing, ... shall determine the amount to be repaid ... and the terms and conditions thereof." Code § 19.2-305.1(C). The statute further states that the trial judge "shall include such findings in the judgment order." Id. The judgment order in this case, however, does not include any such findings.

We acknowledge that the legislature intended that probation or a suspended sentence would only be permitted if the defendant "shall make at least partial restitution for [the] property damage or loss, or shall be compelled to perform community services, or both, or shall submit a plan for doing that which appears to the court to be feasible under the circumstances." Code § 19.2-305.1(A). However, the same statute that requires restitution also requires the trial judge to make such findings in the sentencing order. Code § 19.2-305.1(C). We believe it is patent that the legislature intended that the restitution requirement be expressly ordered.

Code § 19.2-305.1(A) allows a range of possible means of satisfying the restitution requirement: "at least partial restitution," or "community service," or some combination of restitution and community service, or "a plan for doing that which appears ... to be feasible under the circumstances." Because of this range of possibilities, the findings by the trial judge are an essential element of the statute. In the absence of such findings, neither the victim nor the defendant can be certain of what is expected. Such uncertainty defeats the legislative purpose of requiring the defendant to conform his conduct to a standard designed to compensate for the loss that the defendant caused.

Our interpretation of the restitution statute is not inconsistent with Marshall v. Commonwealth, 202 Va. 217, 116 S.E.2d 270 (1960). In Marshall, an order granting a suspended sentence under a former statute did not include a condition of good behavior ³. The Supreme Court stated:

Since the original statute, Acts 1918, ch. 349, p. 528, we have recognized that the power thus given is to be exercised on condition that the defendant be of good behavior and we said so in Slayton v. Commonwealth, supra, 185 Va. at 365, 38 S.E.2d at 483 [ (1946) ]; and in Dyke v. Commonwealth, 193 Va. 478, 484, and at 490 (dissenting opinion), 69 S.E.2d 483, 486, 490. While the precise point has not previously been in issue, we now hold, in view of the purpose and history of the statute and the liberal construction to be given it, that the proper construction is that the phrase "during good behavior" qualifies the power to suspend, as well as the power to place "on probation under the supervision of a probation officer," and that good behavior is a condition of every suspension, with or without probation, whether expressly so stated or not.

Id. at 220, 116 S.E.2d at 273. The Supreme Court also grounded its decision in that case on an alternative basis:

It seems entirely clear that the failure of a defendant to be of good behavior, amounting to substantial misconduct, during the period of suspension would provide reasonable cause for revocation of the suspension whether or not good behavior was expressly stated to be a condition of the suspension. It follows that in either aspect of the matter, whether good behavior was a condition of the suspension ... or bad behavior a sufficient cause for revoking the suspension ... the question here is simply whether there has been an abuse of discretion.

Id. at 220-21, 116 S.E.2d at 273-74.

In either event, it is important to note that Marshall was interpreting Code § 53-272, which contained no requirement that the trial court commit its determinations to writing. Unlike former Code § 53-272, its successor, Code § 19.2-303, requires that the terms and conditions of the restitution requirements "shall be entered in writing by the court." Likewise, Code § 19.2-305.1, which specifically addresses persons causing property loss as a result of a "violation of any provision in Title 18.2," requires that determinations concerning "the amount to be repaid ... and the terms and conditions" of the repayment "shall" be included by the trial judge as "findings in the judgment order." Because the statute requires the trial judge to include the terms of restitution in the sentencing order, we conclude that no "implicit" requirement of "some form of restitution," as suggested by the Commonwealth, arises from an order that is otherwise silent as to that issue.

The facts of this case demonstrate why an order fixing the terms and conditions of restitution must be contained in a sentencing order. The record reflects that at the 1986 sentencing hearing, the trial judge was made aware of efforts by Russnak's counsel to resolve the restitution question with the restaurant. Russnak had executed and assigned the title to a motorcycle to the restaurant. Russnak's counsel delivered the certificate of title to the restaurant's legal counsel prior to the sentencing hearing and Russnak's counsel informed the trial judge, prior to sentencing, that this had been done.

We are unable to glean from the record whether the trial judge at the time the sentencing order was entered concluded that satisfactory restitution had been tendered, thus obviating the need to require further payments, whether the trial judge determined to leave further restitution to Russnak and the...