COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Powell and Senior Judge Annunziata Argued by teleconference

STEVEN WHEELER, S/K/A STEVEN T. WHEELER MEMORANDUM OPINION * BY v. Record No. 2252-09-2 J UDGE CLEO E. POWELL SEPTEMBER 7, 2010 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL Samuel E. Campbell, Judge (Christopher B. Ackerman, on brief), for appellant. Appellant submitting on brief. Kathleen B. Martin, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, A ttorney General, on brief), for appellee.

Steven T. Wheeler (“Wheeler”) appeals the trial court’s deci sion to revoke his suspended sentence for rape. Wheeler contends that the tr ial court abused its discretion in revoking his suspended sentence in its entirety because the revoca tion was based upon an act that occurred before a previous revocation proceeding an d was not considered as a basis for revocation at the previous hearing. For the reasons that follow, we disagree with Wheeler’s argument and affirm the decision of the trial court.
BACKGROUND On September 9, 1998, Wheeler was convicted of rape. On October 29, 1998, Wheeler was sentenced to serve twenty years incarceration, with ten years su spended conditioned on his good behavior.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - At some point prior to June of 2008, Wheeler was released fr om prison. Shortly thereafter, he failed to register as a sex offender, a requireme nt of his probation. Additionally, between June 19, 2008 and July 4, 20 08, Wheeler engaged in c onsensual sex with a fift een-year-old female. On January 29, 2009, the trial court revoked Wheeler’s suspended sentence (herei nafter referred to as the “January revocation”) based on his failure to register as a sex offender. The trial court imposed an active sentence of two years an d re-suspended the remaining eight years of his original sentence. At the time of the Janu ary revocation, the Commonwealth’s At torney was aware that Wheeler had been charged with taking indecent liberties with a child, in violation of C ode § 18.2-370(A), based on Wheeler’s relationship with the fifteen-year-old female; the trial court, however, was not aware of the charge. On June 10, 2009, Wheeler entered an Alford plea to the charge of taking indecent liberties with a child. Wheeler was sentenced to serve five years in prison, with the entire sentence suspended. On July 13, 2009, the Commonw ealth notified the trial cour t of Wheeler’s conviction for taking indecent liberties with a child and request ed the court issue a capia s against Wheeler “for failure to comply with the [c]ourt’s previous Order.” At th e subsequent show cause hearing on September 23, 2009, the following colloquy took place: COURT: And the revocation you’re asking for is based on the ’98 original charge? [COMMONWEALTH]: It’s from th e ’98 original charge. Yes, sir. COURT: Yes. [COMMONWEALTH]: Because of the new conviction for indecent liberties. COURT: So even though it was afte r the ’09 offense, it’s still - - we’re only looking back to the ’98 problem. [COMMONWEALTH]: Correct.- 3 - The trial court then found that Wheeler was “in violation of the terms and conditions of his October 28th, 1998 sentence,” and revoked the remaining portion of his suspended sentence (hereinafter referred to as the “September revocation”), finding: [T]his to be a very serious situation on Mr. Wheeler, because he was revoked in [January] 2009 and now he’s back again for something – even though it preexis ted January 2009, it needs to be addressed and he needs to be held accountable. And therefore, the Court is going to do so . . . . Th e Court will revoke the eight years that you previously had suspende d and any supervised probation upon your release will be added, at th at time. But at this time, eight years is revoked. Wheeler appeals.
ANALYSIS On appeal, Wheeler contends that the trial court erred in revoking his suspended sentence based on his taking indecent liberties with a ch ild. Wheeler argues th at, under this Court’s decision in Reinke v. Commonwealth , 51 Va. App. 357, 657 S.E.2d 805 (2008), the January revocation and re-suspension became “a new sentencing event,” ending the original probationary period and starting a new one, and any subsequent revocation could only be based on behavior that occurred subsequent to th e January revocation. As the bad conduct that was the subject of the September revocation predated the January revocation, Wheeler posits that he could not have violated the good behavior requirement im posed at that time. We disagree. “[U]nder Virginia law[,] once a defendant receives a suspended sentence, a judge’s power to revoke the suspen sion of sentence and probation is governed by statute.” Carbaugh v. Commonwealth , 19 Va. App. 119, 123, 449 S.E.2d 264, 266 (1994). However, the authority of the trial courts “to revoke suspensions and pr obation for breach of conditions must not be restricted beyond the statutory limitations.” Grant v. Commonwealth , 223 Va. 680, 684, 292 S.E.2d 348, 350 (1982). As we have previously recognized, “we review the trial court’s- 4 - application of the law de novo .” Ford v. Commonwealth , 55 Va. App. 598, 605, 687 S.E.2d 551, 554 (2010). In any case in which the trial court suspe nds the execution or imposition of a sentence, “the case remains pending and the court does not . . . lose its control over the accused or his
case.” Richardson v. Commonwealth , 131 Va. 802, 807, 109 S.E. 460, 461 (1921). The trial court retains “ample jurisdiction over the accused and control over such orders, with power to revoke them, and to require such suspe nded sentences to be fully executed, if exercised within the period prescribed by law .” Id. (emphasis added). “The true objective of suspended sentenci ng is to rehabilitate and to encourage a convicted defendant to be of good behavior.” Hamilton v. Commonwealth , 217 Va. 325, 328, 228 S.E.2d 555, 556 (1976). Our Supreme Court has prev iously held that “[i]t is entirely clear that the failure of a defendant to be of good behavior, amounting to substantial misconduct, during the period of the suspension would provi de reasonable cause for revocation of the suspension.” Slayton v. Commonwealth , 185 Va. 357, 367, 38 S.E.2d 479, 484 (1946). Further, When the court [sees] that the defendant . . . ha[s] rebuffed the opportunity extended him and ha[s] displayed an unwillingness to be rehabilitated, it ha[s] the pow er to invoke the condition of good behavior which had attached to the suspension from the beginning

. Coffey v. Commonwealth , 209 Va. 760, 764, 167 S.E.2d 343, 346 (1969) (emphasis added). Further, it is immaterial that one period of suspension terminates and another simultaneously begins so long as “the conditi on of good behavior was in effect at the time the defendant committed the new offenses.” Id. at 763-64, 167 S.E.2d at 345. Code § 19.2-306(A) provides the statutory au thority allowing the court to “revoke the suspension of sentence for any cause the court deems sufficient that occurred at any time within the probation period, or within th e period of suspension fixed by the court.” Code § 19.2-306(B) provides a temporal limit upon a c ourt’s exercise of this power.- 5 - The court may not conduct a hearing to revoke the suspension of sentence unless the court, within one year after th e expiration of the period of probation or the peri od of suspension, issues process to notify the accused or to compel his appearance before the court. Code § 19.2-306(B). Assuming, arguendo , that Wheeler is correct and the January revocation terminated the original sentencing order, under Code § 19.2-306(B), the trial court still had “one year after the expiration of the period of probation or the peri od of suspension” to issue process and notify Wheeler about the hearing to revoke the suspensi on of his sentence for misconduct that occurred during his original sentence. Code § 19.2-306( B). Here, it is undis puted that Wheeler committed the misconduct that became the subject of the September revocation between June 19, 2008 and July 4, 2008, se ven months prior to the January revo cation, thus duri ng his original probationary period. Further, the record demonstrates that the capi as was issued on July 13, 2009, well within the one-year limit imposed by Code § 19.2-306(B). Finally , during the show cause hearing, the trial court specifically found that Wheeler was “in violation of the terms and conditions of his Oct ober 28th, 1998 sentence.”
CONCLUSION For the foregoing reasons, we affirm the deci sion of the trial court to revoke Wheeler’s suspended sentence in its entirety. Affirmed.