COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bumgardn er and Clements Argued at Rich mond, Virginia

THOMAS HORACE ALSBERRY OPINION BY v. Record No. 0826-01-4 JU DGE JEAN HARR ISON CLEMENTS DECEMBER 3, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY Dennis L. Hupp, Judge S. Jane Chittom, Ap pellate Defend er (Public Defender Commission, on brief), for appellant. Eugene Murphy, Assi stant Attorney General (Jerry W. Kilg ore, Attorney General, on brief), for appellee.

Thomas Horace Alsber ry appeals from a ju dgment of the trial court revoking his prev iously suspended senten ce. On appeal, he contends the trial cour t erred (1) in refusi ng his request for a mental evaluation pr ior to sentencing hi m for his probation violation and (2) in imposing all of hi s previously suspended sentence, in excess of twenty-four years, for two misdemeanor probation violat ions. Finding no error, we affirm the judgment of the trial court. On January 12, 1995, Alsberry was convicte d of animate object sexual penetration and three counts of breaking and entering. He was sentenced to thirty years' imprisonment, with twenty-five of those years suspen ded on the condit ion he successfully completefive years of supe rvised probation upon his release. 1 In October of 1997, Alsberry was released from incarceration an d placed on probation. On May 27, 1998, Al sberry was found to have violated his probation for fa iling to maintain his registration as a sex offender and was ordere d to serve an addition al six months of the previously suspended se ntence. On June 9, 1999, Alsberry was again found to be in violation of his prob ation for "hiding out in the nurses' locker room of the ho spital." He wa s consequently required to serv e an additional twelve months of the earlier suspended sent ence. On November 15, 2000, Alsber ry was found to have violated his pr obation for fail ing to maintain a stable residence. He was released with credit gi ven against the suspended sent ence of fift een days for time served. On January 19, 2001 , Alsberry was arrest ed and charged with misdemeanor de struction of private proper ty and "being a Peeping Tom." The general dist rict court convicted hi m of those offenses and sentenced him to serve twelve months an d thirty days in jail. Following his arrest on thos e charges, the Commonwealth commenced the pr esent probation revocation proceedings in the circuit court. After the pres entation of evidence at the revocation hearing on March 1, 2001, Alsberry 's attorney "ask[ed]

1 Alsberry was sentenced to ten years for his conviction of animate object sexual penetration. The five years served were for this offense.

- 2 -the court for a ps ychological eval uation [of Alsberry], and an opportunity to place Mr . Alsberry back on probation." Finding Alsberry had violated his probation, the tr ial court re voked his probation and or dered him to serve the entire balance of his previously suspended sentence, a tota l of twenty-f our years and five and one-half months. On appeal, Alsberry contends the decision whether to order a mental evaluation before sentencing pursuant to Code § 19.2-300 is not discretionar y. Because hi s animate object penetration conviction, one of the conviction s for which he was originally sentenced, and his "P eeping Tom" convicti on, upon which his probation revo cation was partly based, were both convictions indicating sexual abno rmality, he wa s explicitly entitled, he argues, to an ev aluation. Therefore, he contends, the trial court erred, as a matt er of law, in refusing his requ est for a mental evaluation before se ntencing him for his probation vi olation. "[A] trial court 'by definition abuses its discretion when it makes an error of law.'" Shooltz v. Shooltz , 27 Va. App. 264, 271, 498 S.E.2d 437, 441 (1998) (quoting Koon v. United States , 518 U.S. 81, 100 (1996) ). "In determ ining whether th e trial court made an error of la w, 'we review the tr ial court's statutory interpretation s and legal conclusions de novo .'" Rollins v. Commonwealth , 37 Va. App. 73, 79, 55 4 S.E.2d 99, 102 (2001) (quoting Timbers v Co mmonwealth , 28 Va. App. 187, 193, 503 S.E.2d 233, 236 (1998)).
- 3 -Code § 19.2-300 pr ovides as follows: In the case of th e conviction in any circuit court of any person fo r any criminal offense which in dicates sexual abnormality, the trial judge may on his own initiative, or shall upon application of the attorney for the Commonwealth , the defendant, or counsel for the defendan t or other pers on acting for the defendant, defer sentence until the report of a me ntal examinatio n conducted as provided in § 19.2-301 of th e defendant can be secured to guide th e judge in determining what disposition shal l be made of the defendant. 2 Accordingly, Alsberry is correct in asserting the decision to order a mental examination under Code § 19.2-300 is not discretionary wh en a defendant who has been convicted of an offense indicati ng sexual abnormal ity requests such an evaluation prior to sentencing fo r that conviction. See Simerly v. Commonwealth , 29 Va. App. 710, 717, 51 4 S.E.2d 387, 391 (1999). However, we do not ag ree with Alsberry that the trial court was required to or der a mental examinatio n before revoking the suspended port ion of his previously impo sed sentence for violating the terms of his probation. Although a probation revoca tion hearing is a criminal proceeding, it is not "a stage of a cr iminal prosecution." Green v. Commonwealth , 263 Va. 191, 195-96, 557 S. E.2d 230, 23 3 (2002).

2 The Commonwealth does not contest Alsberry's claim that his "Peeping Tom" and animate object sexual penetration convictions indicate sexual abnormality. Thus, for purposes of this appeal, we will assume, without deciding, that both offenses fall within Code § 19.2-300's purview. - 4 -Likewise, "[a] probation violat ion is not itse lf a criminal conviction." Merritt v. Commonwealth , 32 Va. App. 506, 509, 528 S.E.2d 743, 744 (2000). Rather, a "[r]ev ocation of probation is merely a modification of the sentence" imposed fo r a prior conviction. Id. at 508, 528 S.E. 2d at 744. Henc e, the issue at a revocation proceeding is not what sentence to impose upon the defendant for hi s prior criminal convic tion, but wh ether to continue all or any po rtion of a previously imposed and suspended sentence due to the de fendant's failur e to abide by the terms of his probation. Here, Alsberry was convicted on January 12, 19 95, of several criminal offenses, incl uding animate ob ject sexual pe netration. For those crimes, he was sentenced to thirty years' imprisonment, twenty-five ye ars of which were suspende d. On March 1, 2001, having found Alsberry to be in violatio n of the terms and conditions of hi s probation, base d in part on hi s "Peeping Tom" conviction, the trial court revoked Alsberry's susp ended sentence and ordered him to serve the remain der of his orig inal sentence. Accordingly, in re voking the previously suspended sentence and ordering Alsberry to serve the balance of that sentence, the trial court was no t sentencing him on the animate object sexual penetration or "Peeping Tom" convictions. The sentence s for those convictions had al ready been imposed pursua nt to the respective criminal prosecutions of those offens es. Rather, th e trial court was merely "modifying" the sentence previously imposed on Alsberry

- 5 -for his 1995 conviction s. Thus, the trial court was not required under Code § 19.2-300 to grant Alsberry's request for a mental examination be fore revoking his suspen ded sentence due to the probation violat ion. We hold, th erefore, that th e trial court did not err, as a ma tter of law, in refusing to order a mental examination. Alsberry also cont ends, in the alternat ive, that, given the circumstances of this case, th e trial court's re fusal to order a mental examination co nstituted an abuse of discretion. We disagree. In discussing, in Simerly , the underlying purpose of Code § 19.2-300, we quoted from a report to the governor and legislature wh ich stated that "' [t]he hope . . . of reducing the number of seri ous sex crimes lies in a proper psychiatric screening of the po tential criminal at the stage wh ere abnormal behavior first comes to light .'" 29 Va. App. at 715 n.2, 514 S.E.2d at 390 n. 2 (emphasis added) (quoting Commission to Study Sex Offenses, The Sex Offend er and the Cr iminal Law , S. 18, at 6 (1951)). In this ca se, Alsberry had the op portunity to request a mental examination pu rsuant to Code § 19 .2-300 prior to his sentencing in 1995 for the anim ate object sexu al penetration conviction, but di d not. We find nothing in th e record that convinces us that the trial court abused its discre tion in denying Alsberry's psychologica l evaluation request, which was made during the hearing on his four th probation vi olation, more than six years

- 6 -after Alsberry 's abnormal behavior firs t came to li ght and the original senten ce was imposed. Alsberry also conten ds the trial court ab used its discretion in imposing all of his previously suspen ded sentence for two misdemeanor probation vi olations. 3 Again, we disagree. When a defendant fails to comply with the terms and conditions of a suspended sentence, the trial court has the power to revoke the suspension of the sentence in whole or in part. Russnak v. Commonwealth , 10 Va. App. 317, 321, 392 S.E.2d 491, 493 (1990). "A trial court has broad discretion to revoke a suspended sentence and probation based on Code § 19.2-306, which allows a court to do so 'for any cause deemed by it sufficient.'" Davis v. Commonwealth , 12 Va. App. 81, 86, 402 S.E.2d 684, 686 (1991). "The cause deemed by the court to be sufficient for revoking a suspension must be a reasonable cause. The sufficiency of the evidence to sustain an order of revocation 'is a matter within the sound discretion of the trial court. Its findings of fact and judgment thereon are reversible only upon a clear showing of abuse of discretion.' The discretion required is a judicial discretion, the exercise of which 'implies conscientious judgment, not arbitrary action.'" Hamilton v. Commonwealth , 217 Va. 325, 327, 228 S.E.2d 555, 556 (1976) (quoting Marshall v. Commonwealth , 202 Va. 217, 220, 116

3 Alsberry does not challenge the sufficiency of the evidence to sustain the order of revocation. He challenges only the extent of punishment imposed. - 7 -S.E.2d 270, 273, (1960) (quoting Slayton v. Commonwealth , 185 Va. 357, 367, 38 S.E.2d 479, 484 (1946))). We are further mindful that, when a defendant violates the terms of his probation, "the act of grace in granting probation in the first place is rendered a nullity." Rease v. Commonwealth , 227 Va. 289, 294-95, 316 S.E.2d 148, 151 (1984). Thus, upon revocation of the suspended sentence, the defendant is punished in accordance with a previously imposed sentence not for the conduct prompting the revocation but for his commission of the original crime. See United States v. Woodrup , 86 F.3d 359, 362 (4th Cir. 1996). Here, the evidence is uncontroverted that Alsberry violated the conditions of his probation on January 19, 2001, by committing the misdemeanor destruction of private property and "Peeping Tom" offenses. It was Alsberry's fourth violation of probation in less than four years. His other violations included failure to maintain his registration as a sex offender and hiding in the nurses' locker room at a hospital. Moreover, there is no question that the original offenses of animate object sexual penetration an d three counts of breaking and entering warranted the sentence previously imposed for those convictions. Furthermore, Alsberry's probation officer testified at the revocation hearing that, on the evening before the January 19, 2001 offenses, Alsberry left counseling "in a very agitated state," commenting that, "if anybody was to accuse

- 8 -him of being a sex-offender, . . . he would kill them." According to the probation officer, Alsberry was in "an activated state, which means that he [was] on the verge of re-offending." The probation officer further testified that, after the charges had been placed, "Mr. Alsberry was activated and, as a consequence, was very dangerous." The trial judge, in rendering his decision, reviewed Alsberry's entire criminal record, including two prior convictions for indecent exposure. After conducting that review, the trial judge told Alsberry: I have told you repeatedly during this process that you worry me. You worry me because of your prior sexual misconduct, and the continuing sexual misconduct that I see. Well, I am not going to worry about you [anymore]. I am going to put you where I don't have to worry about you. The trial court then revoked Alsberry's suspended sentence and ordered him to serve the entire previously imposed sentence. Upon our review of the record, we conclude the trial court had sufficient cause to revoke Alsberry's suspended sentence. Despite the trial court's numerous efforts to allow him the opportunity to avoid serving the previously imposed sentence for the serious 1995 offenses by simply behaving properly, Alsberry failed to do so. Thus, in light of the grievous nature of Alsberry's 1995 offenses and his continuing criminal activity,

- 9 -we hold the trial court did not abuse its discretion in imposing the previously suspended se ntence in it s entirety. Accordingly, we affirm the judgment of the trial court. Affirmed.

A Copy,

Teste: Cynthia L. McCoy, Clerk By: Deputy Clerk

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