Word v. Com.

• Decision Date: 16 September 2003
• Docket Number: Record No. 0097-02-2.
• Citation: 41 Va. App. 496,586 S.E.2d 282
• Parties: Verlie Marion WORD, Jr., v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

586 S.E.2d 282

41 Va. App. 496

Verlie Marion WORD, Jr., v. COMMONWEALTH of Virginia.

Record No. 0097-02-2.

Court of Appeals of Virginia, Richmond.

September 16, 2003.

Tracy L. Quackenbush (Law Office of W.W. Bennett, Jr., P.C., on brief), for appellant.

Leah A. Darron, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: BENTON, ANNUNZIATA, JJ., and COLEMAN, Senior Judge.

COLEMAN III, Senior Judge.

Verlie Marion Word, Jr., appeals the trial court's order revoking his suspended sentence contending that the court abused its discretion by finding he violated a condition of probation. He argues that he was unable, through no fault of his own, to enter and successfully complete the Detention Center Incarceration Program (Program), to which the court had ordered him committed, because the Program's administrator arbitrarily refused to accept him after having previously recommended to the court that he be permitted to participate.

From our reading of the trial court's order, it is unclear whether the trial court found Word to be in violation of a condition of probation. What is clear from the record is the court found it to be "an impossibility" for Word to comply with the condition of the suspended sentence that he enter and successfully complete the Program because the Program would no longer accept Word; thus, the court vacated that provision of the sentencing order which required that Word attend the Program. Nevertheless, to the extent that the court may have found Word violated a condition of probation, we find no evidence to support such a finding. Accordingly, we reverse the trial court's probation violation finding and remand the case to the trial court to vacate that portion of its order. We affirm, however, the trial court's revocation of a portion of Word's suspended sentence based upon the court's determination that it was "an impossibility" for Word to satisfy that condition of his suspended sentence which required that he attend the Program, a requirement imposed as a prerequisite to suspending the sentence.

FACTS

The trial court convicted Word for the felonies of eluding a police officer, two counts of driving after being declared an habitual offender, and possession of cocaine and sentenced him to a total of nine years and twelve months confinement. Before imposing sentence, the court ordered that Word be evaluated by the Program to determine his eligibility for participation as an alternative to incarceration. The Program determined that Word satisfied the criteria for acceptance and recommended him for the program.

Based on the Program's recommendation, the trial court ordered the following:

The Court SUSPENDS all of the (2) year Elude Police Officer sentence, all but twelve (12) months of the two (2) year Drive After Declared Habitual Offender felony charge, all of the twelve (12) month Drive After Declared Habitual Offender misdemeanor sentence, and all of the five (5) year Possess Schedule II Controlled Substance Cocaine sentence, for a total suspension of eight (8) years, twelve (12) months upon the following conditions:

Good Behavior: The defendant shall be of good behavior for five (5) years from the defendant's release from confinement.

Community-based Corrections System Program: The defendant shall enter and successfully complete the Detention Center Program and then the Diversion Center Program.

Supervised probation: The defendant is placed on probation to commence today, under the supervision of a Probation Officer for (3) years, or unless sooner released by the court or by the Probation Officer. The defendant shall comply with all the rules and requirements set by the Probation Officer.

Thus, while Word was sentenced to serve twelve months active incarceration, he was then to be successively confined in the Detention Center Program and the Diversion Center Program.

Word served the active twelve-month sentence but was not released or transferred to the Department of Corrections for entry into Program as the court had ordered. Word filed a motion that he be released because the sentencing order did not require or authorize that he be further incarcerated awaiting transfer into the Program. At the hearing on the motion, the trial judge issued a capias to hold Word pending a show cause hearing as to why his probation and suspended sentences should not be revoked based on the Program administrator having now determined that Word would not be accepted into the Program.

By way of proffer, the assistant Commonwealth's attorney represented that he had informed the Program that Word was being investigated by federal authorities for two murders that occurred in 1993 and that indictments were likely to be forthcoming. The Commonwealth's attorney represented that he contacted the Program only out of a "concern for security" and to ensure that Word was no "flight risk." After being contacted by the Commonwealth's attorney, the Program determined that Word would not be accepted because of the likelihood that he would be arrested and would be unable to complete the Program. A senior probation officer notified the court by letter that the Program would not accept Word "due to the ongoing criminal investigation."

The trial court denied Word's motion to be released, ruling that the court had intended that Word remain incarcerated until he was transferred to the Program. During the show cause portion of the hearing, the trial court ruled that Word's entry into the Program was a condition of his suspended sentence, which had been imposed as an alternative to incarceration. Thus, the trial court ruled that because entry into the Program was now "an impossibility" Word was in violation of a condition of his suspended sentence. Because the sentencing order provided for successive periods of confinement in the Detention Center Program and the Diversion Center Program as an alternative to incarceration and after Word served a twelve-month jail sentence, the court revoked the suspended sentence and then re-suspended all but 120 days of the sentence, effectively imposing a 120-day jail sentence in lieu of confinement in the two programs.

ANALYSIS

Revoking Suspended Sentences

"The law of Virginia distinguishes the suspension of a sentence from the imposition of probation." Anderson v. Commonwealth, 25 Va.App. 565, 572, 490 S.E.2d 274, 277 (1997) (citing Grant v. Commonwealth, 223 Va. 680, 292 S.E.2d 348 (1982)), aff'd en banc, 26 Va.App. 535, 495 S.E.2d 547, aff'd, 256 Va. 580, 507 S.E.2d 339 (1998). "[S]entencing judges must be cognizant that probation and suspension of sentence are separate and distinct concepts and that they may be fixed at different intervals to accomplish different goals." Carbaugh v. Commonwealth, 19 Va. App. 119, 126, 449 S.E.2d 264, 268 (1994) (citation omitted).

Suspending sentence is to delay either the execution of an imposed sentence or the imposition of a sentence. See Code § 19.2-303. A court may "suspend" all or a portion of a sentence or delay imposition of a sentence "under terms and conditions which shall be entered in writing by the court." Id.

Probation, on the other hand, refers to the continued supervision by the court over the convicted offender and may be either supervised or unsupervised but shall be "under such conditions as the court shall determine." Id. Probation is defined as "the action of suspending the sentence of a convicted offender in such a way that the offender is given freedom after promising good behavior and agreeing to a varying degree of supervision, to the usual imposed condition of making a report to a particular officer or court at stated intervals, and to any other additionally specified conditions." Webster's Third New International Dictionary 1806 (1981). Black's Law Dictionary defines probation as "[a] court-imposed criminal sentence that, subject to stated conditions, releases a convicted person into the community instead of sending the criminal to jail or prison." Black's Law Dictionary 1220 (7th ed.1999).

A suspended sentence and probation are often coterminous and usually augment one another in that probation and the conditions imposed for probation are usually ordered to enable the convicted offender to accomplish certain goals during the term of a suspended sentence. "[While] the conditions imposed in probation and those imposed in the suspension of sentences need not be analyzed in different contexts[, separate conditions may be imposed as a prerequisite to suspending a sentence which may be only tangentially related to the conditions of probation. However,] [t]he common objective of such conditions is to protect society and to promote rehabilitation of the convict." Anderson, 25 Va.App. at 572, 490 S.E.2d at 277.

Here, the trial court imposed a suspended sentence conditioned upon Word (1) being of good behavior, (2) being on supervised probation, and (3) completing the Program. The court's sentencing order provided that, after serving a period of incarceration in jail, Word would be confined in the Program, a residential program operated by the Department of Corrections (Department) pursuant to Code § 53.1-67.8.¹ While entering and successfully completing the Program may have been a condition of probation, merely entering the Program was a prerequisite to and one of the conditions upon which the nine-year sentence was suspended. When the trial court sentenced Word for the various non-violent felonies, the court clearly intended to impose, and did impose, upon Word an additional term of confinement in a regimented environment with a structured program between his active incarceration and his release into the community. The Program is for non-violent offenders, such as Word, who do not qualify for the Boot Camp Incarceration Program pursuant to Code § 19.2-316.1, but nevertheless require and would benefit from a demanding structured program.

The Department conducted an...