COURT OF APPEALS OF VIRGINIA

Present: Judges Elde r, Frank and Humphreys Argued at Richmond, Virginia

SHAWN M. MYERS MEMORANDUM OPINION * BY v. Record No. 0170-04-2 J UDGE ROBERT J. HUMPHREYS APRIL 26, 2005 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF KING GEORGE COUNTY Horace A. Revercomb, III, Judge James J. Ilijevich, Deputy Publ ic Defender (Gray Collins; Office of the Public Defender, on brief), for appellant. Josephine F. Whalen, Assistan t Attorney General (Judith W. Jagdmann, Attorney General, on brief), for appellee.

Appellant Shawn M. Myers (“Myers”) appeals the trial court’s revoc ation of a portion of his suspended sentences, contending that, because the evidence did not show that Myers willfully violated the terms of his probation, the trial court abused its discretion in ordering the revocation. For the reasons that follow, we hold that Myers is procedurally barred from arguing for the first time on appeal that he was financially unable to comply with the terms of his supervised probation. Thus, we affirm the judgment of the trial court. On June 8, 2001, the Spotsylvania County Ci rcuit Court convicted Myers of carnal knowledge and taking indecent liberti es with a child. He was sent enced to a total of two years and ten months in prison, but the trial court su spended two years of hi s sentence conditioned

* Pursuant to Code § 17.1-413, this opinion is not designated for publ ication. Moreover, as this opinion has no precedential value, we re cite only those facts necessary to our holding.- 2 - upon two years of good behavior, supervised prob ation, sexual offender treatment, and payment

of costs. On August 24, 2001, the King George County Ci rcuit Court convicted Myers of credit card theft, in violation of C ode § 18.2-192, petit larceny, in violation of Code § 18.2-96, and identity theft, in violation of Code § 18.2-186.3. The trial court sentenced Myers to a total of twelve years in prison, but it suspended ten and a half years of his sentence. The suspended sentence was made conditional upon Myers “be[ing] of good behavior and observ[ing] all laws for a period of ten years.” Myers was released from prison on August 12, 2003 and placed on supervised probation. Myers first met with his probation offi cer, Angelia Anderson, on September 8, 2003. 1 At the September 8 meeting, Anderson reviewed Myers’ probation conditions with him, and Myers signed the form listing the conditions of his supe rvised probation. According to Condition 6 of his supervised probation, Myers promised to “follow the Probation and Parole Officer’s instructions and [] be truthful, c ooperative, and report as instructe d.” In accordance with this condition, Anderson instructed Myers that he would have to attend a group sex offender treatment program once a week, also inform ing him that, although the treatment group was partially funded by the Department of Corrections, he would have to contribute $20 per week for his therapy. Myers began his group therapy on October 20, 2 003. He was an hour late for his first group. Also, he refused to sign the contract for sex offender treatment, was uncooperative with the counselor, argued that he did not need treatment, asked what he could do to get out of the group, and claimed he could not afford the group.

1 Anderson is Myers’ probation office r for both sets of convictions.- 3 - Anderson met with Myers on October 21, 2003. Sh e again informed him that he needed to attend the sex offender treatment group, arrive on time, and be cooperative with the counselor. Myers responded that he did not f eel he needed the treatment. On November 3, 2003, the group counselor in formed Anderson that Myers was not paying the $20 a week for the treatment group. Later that da y, Anderson spoke with Myers by phone and again instructed him to attend the treatment group and to pay the $20 each week. Myers told Anderson that, even th ough he was employed at the time, he could not afford the $20. When questioned, Myers said that he was paying for tattoo classes. Anderson informed Myers

that if he could afford tattoo cl asses, he could afford to pay fo r his treatment group. Myers then responded that he would begin paying for the treatment. However, on November 17, Myers again failed to either attend or pay for the treatment group. Also, on November 6, Myers told Anderson that he had moved. Anderson informed Myers that he had to re-register with the Sex O ffender Registry, and she instructed him to do so “immediately.” Myers met with Anderson on November 18, 2003, and she asked if Myers had re-registered with the Sex Offender Regist ry. Myers replied th at he had not. Anderson then spoke with her supervisor a nd issued a PB-15, arresting Myers and asking the Commonwealth’s Attorney to request that a s how cause order be entere d against Myers. On January 8, 2004, the Circuit Court of King Geor ge County conducted a sh ow cause hearing to determine whether Myers had violat ed the terms of his supervised probation as pertaining to his convictions for credit card theft, petit larceny, and identity fraud. 2

2 Similar show cause proceedings were instig ated in the Circuit Court of Spotsylvania County pertaining to Myers’ convictions for indecent liberties and carnal knowledge, but the resolution of those proceedings is not at issue in this appeal.- 4 - In Myers’ defense, his counsel contended that Myers tried to comply with the terms of his supervised probation, reasoning that the court should “consider everything that happened in th[e] about three month period and l ook at the degree of non-cooperation to see if, in fact, [Myers] was truly not cooperative with Ms. Anderson dur ing that period of time.” Myers’ counsel reasoned that, although “[Myers] needs to change his attitude,” overa ll, he “is trying to cooperate” and “has taken step s to rehabilitate himself.” Although acknowledging that Myers “has a lengthy criminal record” a nd “has been in trouble for a long time,” Myers’ counsel argued that, “hopefully, Mr. Myers has turned the corner,” reasoning that Myers had “met with his probation officer,” attended “t he sex offender treatment,” and “began an apprenticeship program.” Myers’ counsel concluded that, “[ p]erhaps, he won’t fall back on some of the behavior that has gotten him into so much trouble in the past.” The court held that Myers had failed to fo llow Condition 6 of his supervised probation, reasoning that Myers “faile d to re-register in King George [as a sex-offender] in the time he was instructed to by the officer,” a nd also “failed to attend [the tr eatment group] meetings.” Noting that Myers’ “criminal history is extraordinar y,” the trial court revoked Myers’ previously suspended sentences, but it then re-suspende d all but one year of the remaining term. The revocation of a suspended sentence lies in the discretion of the tr ial court and will not be disturbed on appeal absent an abuse of that discretion. Peyton v. Commonwealth , 268 Va. 503, 508, 604 S.E.2d 17, 19 (2004). Under the circumstan ces of this case, Myers contends that

the trial court abused its disc retion in revoking his suspended se ntences because “the evidence did not show that [Myers] willfully failed to abide [by] the terms of his probation.” Myers argues that his “interaction with the probation officer was tainte d by the effects of his poverty,” noting that he had to travel an extended distance “to attend the various meetings and programs,” lacked a driver’s license “because [he] failed to pay court costs,” and “had to choose whether to- 5 - spend money on job training or rehabilitation program s.” Myers concludes that his “inability to comply with his probation officer to the letter” was at tributable solely to his financial constraints. However, because Myers did not present this argu ment to the trial court, we hold that we are barred from considering it on appeal. 3 According to Rule 5A:18, “[n]o ruling of the tr ial court . . . will be considered as a basis for reversal unless the objection wa s stated together with the grounds therefor at the time of the ruling . . . .” And, although an objection to a par ticular ruling may be sufficient to preserve an issue for appeal, this Court “wi ll not consider on appeal an argu ment that was not presented to

the trial court.” Roberts v. Roberts , 41 Va. App. 513, 525, 586 S.E.2d 290, 296 (2003); see also

Buck v. Commonwealth , 247 Va. 449, 452-53, 443 S.E.2d 414, 416 (1994); West Alexandria Prop., Inc. v. First Va. Mort. , 221 Va. 134, 138, 267 S.E.2d 149, 151 (1980); Edwards v.

Comonwealth , 41 Va. App. 752, 760-61, 589 S.E.2d 444, 447-48 (2003); Michaels v.

Commonwealth , 32 Va. App. 601, 607-08, 529 S.E.2d 822, 825 (2000) . This rule is intended to afford the trial judge an opportuni ty to consider the issues in telligently and take corrective action, if necessary, “to avoid unnecessary appeals.” Martin v. Commonwealth , 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992) ( en banc ); see also Weidman v. Babcock , 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991). Here, Myers objected to the trial court’s de cision to revoke a portion of his suspended

sentences because he violated th e terms of his supervised probation. However, at no time during the proceedings below did Myers argue that he was unable to comply with the terms of his probation because of his financial constraint s. Rather, Myers argued that his admitted

3 Myers does not ask this Court to invoke th e ends of justice exception to Rule 5A:18, and we decline to do so. See Widdifield v. Commonwealth , 43 Va. App. 559, 564, 600 S.E.2d 159, 162 (2004) ( en banc ) (“This Court will not consider, sua sponte , an ends-of-justice argument under Rule 5A:18.”).- 6 - non-compliance was slight and, considering the pos itive strides he had made since his release,

the trial court should declin e to re-incarcerate him at that time . Because Myers did not argue that he was financially unable to comply with the term s of his supervised probation, we hold that he is procedurally barred from doing so on this appeal. Because Myers advances no further rationale in support of his argum ent that the trial court erred, we hold that the tria l court did not abuse its discre tion in revoking a portion of his suspended sentences.

Affirmed.