Smith v. Commonwealth, Record No. 0186–11–2.
| Decision Date | 06 March 2012 |
| Docket Number | Record No. 0186–11–2. |
| Citation | 722 S.E.2d 310,59 Va.App. 710 |
| Parties | Bart D. SMITH, Sr. v. COMMONWEALTH of Virginia. |
| Court | Virginia Court of Appeals |
OPINION TEXT STARTS HERE
From the Circuit Court of King George County, Gordon F. Willis, Judge.1Shelly R. James for appellant.
Gregory W. Franklin, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Present: HUMPHREYS, KELSEY and ALSTON, JJ.
Bart D. Smith, Sr. (“Smith”) appeals the order entered after a bench trial in the Circuit Court of King George County (“circuit court”) finding that Smith violated the conditions of his suspended sentence and revoking the suspension of the twelve-month sentence and re-suspending six months of the sentence. On appeal, Smith contends that the circuit court abused its discretion when it sentenced him for violating the conditions of his suspended sentence after the term of his probation had been exhausted, and in sentencing Smith to a term of twelve months imprisonment with six months suspended for violating the conditions of his probation in violation of Code § 19.2–306. For the following reasons, we affirm the circuit court's order.
This Court reviews the evidence in the light most favorable to the prevailing party in the circuit court. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). We must “discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980). Further, we must consider all the evidence admitted at trial that is contained in the record. Rushing v. Commonwealth, 58 Va.App. 594, 598, 712 S.E.2d 41, 43 (2011). In this light, the evidence is as follows.
On December 13, 2007, Smith was convicted of petit larceny in the circuit court and sentenced to a jail term of twelve months with twelve months suspended, conditioned upon good behavior and observance of all laws for two years. On November 15, 2010, the Commonwealth requested that the circuit court issue an order requiring Smith to appear and show cause why his suspended sentence should not be revoked, based on his having new convictions. The Commonwealth did not specify what new convictions were the basis of its request. On November 19, 2010, the circuit court issued an order for Smith to show cause. Smith appeared before the circuit court on January 13, 2011, on the charge of violation of the terms of his probation. He pled no contest to being in violation of the terms of his suspended sentence. The circuit court found Smith guilty and issued an order on February 4, 2011 (“order”), revoking twelve months of his suspended sentence and re-suspending six months. The order does not mention which convictions the circuit court found as the basis for the probation violation.
In lieu of a transcript, Smith prepared a written statement of facts that erroneously states that Smith entered a plea of not guilty. The circuit court's order and the appeal election form, which was signed by Smith and his counsel, clearly state that Smith pleaded no contest. The statement of facts was signed by Judge Horace Revercomb, Judge Designate, on March 23, 2011, and bears no signature of approval of Judge Gordon F. Willis, who actually heard the case, or that of the attorney for the Commonwealth. The statement of facts recites that the “Commonwealth offered as evidence three (3) certified copies of new convictions: two (2) counts of construction fraud in violation of Virginia Code Section 18.2–200.1 and one (1) count of operation without a business license in violation of Virginia Code Section 54.1–111.” The record contains the certified orders of the three above mentioned convictions from the Chesterfield County General District Court (“Chesterfield convictions”). There are no exhibit labels on these certified orders. Smith was convicted on all three charges on August 24, 2010, and the earliest date of offense for these convictions was January 12, 2010.
Although not mentioned in the statement of facts, the record and appendix, as designated by Smith, also contain a letter dated November 8, 2010, from the Henrico County Commonwealth's attorney to the King George County Commonwealth's Attorney, notifying him that Smith was convicted in October 2010 for petit larceny and that the conviction may be a violation of Smith's suspended sentence imposed on December 13, 2007 in King George County Circuit Court. This letter bears a label, “Commonwealth's Exhibit 1,” with Judge Willis' initials. A certified copy of the Henrico County conviction accompanied and was apparently admitted along with the letter. The conviction and sentencing order of the Henrico County Circuit Court, entered on November 3, 2010, (“Henrico County convictions”) showed that Smith pleaded guilty to two counts of petit larceny, with a date of offense of July 1, 2009 for both counts, which pre-dated the expiration of Smith's suspended sentence on December 13, 2009.
Smith claims that the circuit court relied on the Chesterfield convictions in support of his argument that the circuit court acted without authority when it imposed six months of his suspended sentence for an offense that occurred after the period of suspension expired. As proof that the circuit court relied on the Chesterfield convictions, Smith points to the statement of facts, which references that the Commonwealth introduced the Chesterfield convictions but does not mention the Henrico County convictions. The statement of facts is clearly inconsistent with the balance of the record for several reasons. In the record on appeal, the Henrico County convictions bear an exhibit number and the presiding judge's initials, which affirmatively indicate that they were admitted as exhibits; these convictions support the finding of the circuit court that Smith violated the terms of his probation during the period of his suspended sentence. Conversely, the Chesterfield conviction orders referred to in the statement of facts bear no exhibit number, stamp, judge's signature or any other indication that they were actually admitted as exhibits at Smith's revocation hearing.
Most significantly however, the statement of facts states that Smith entered a plea of not guilty, while the circuit court's order and the appeal election form, signed by Smith and his counsel, clearly state that Smith pleaded no contest. If Smith pleaded no contest, he waived all issues for appeal except a lack of subject matter jurisdiction due to his failure to properly preserve the issues pursuant to Rule 5A:18, see Morrison v. Bestler, 239 Va. 166, 170, 387 S.E.2d 753, 756 (1990), and we would not reach the merits of his abuse of discretion arguments due to his waiver. To determine whether this waiver of the issues occurred by way of a no contest plea, we must first decide whether or not the statement of facts certified by a trial judge controls in our standard of review when it conflicts with the balance of the record on appeal.
Rule 5A:8(c) provides that
A written statement of facts, testimony, and other incidents of the case becomes a part of the record when:
(1) within 55 days after entry of judgment a copy of such statement is filed in the office of the clerk of the trial court. A copy must be mailed or delivered to opposing counsel on the same day that it is filed in the office of the clerk of the trial court, accompanied by notice that such statement will be presented to the trial judge no earlier than 15 days nor later than 20 days after such filing; and
(2) the statement is signed by the trial judge and filed in the office of the clerk of the trial court. The judge may sign the statement forthwith upon its presentation to him if it is signed by counsel for all parties, but if objection is made to the accuracy or completeness of the statement, it shall be signed in accordance with paragraph (d) of this Rule....
(Emphasis added). Paragraph (d) of Rule 5A:8 provides the procedure if a party objects to the completeness of the statement.
In Proctor v. Town of Colonial Beach, 15 Va.App. 608, 425 S.E.2d 818 (1993) ( en banc ), we interpreted Rule 5A:8 and stated that
a written statement becomes a part of the record when (1) it is filed in the office of the clerk of the trial court within fifty-five days after entry of judgment, (2) a copy of the statement is mailed or delivered to opposing counsel along with a notice that the statement will be presented to the trial judge between fifteen and twenty days after filing, and (3) the trial judge signs the statement and the signed statement is filed in the office of the clerk.
Id. at 610, 425 S.E.2d at 819. In Proctor we held that once the appellant has complied with the first two elements of Rule 5A:8(c), he or she has established prima facie compliance with the requirements of the rule; thereafter, the trial judge is required to act. Id. at 610–11, 425 S.E.2d at 820.
Under Proctor, Smith established prima facie compliance with the requirements of Rule 5A:8(c). He filed the statement of facts in the office of the clerk of the circuit court thirty-two days after entry of the circuit court's order. Smith's counsel certified that a copy of the statement of facts and accompanying notice was sent to the Commonwealth on the same date as the filing, and the statement of facts was evidently presented to Judge Revercomb fifteen days after the filing.
We went on to say in Proctor that after an appellant establishes prima facie compliance with Rule 5A:8(c),
the trial judge must sign the statement, correct the statement and sign the corrected statement, or, in cases where the judge cannot in good faith recall or accurately reconstruct the relevant proceedings, order a new trial. This Court will not...
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