COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bumgardner and Clements 

Argued at Richmond, Virginia 

THOMAS HORACE ALSBERRY 

 OPINION BY 

v. Record No. 0826-01-4 JUDGE JEAN HARRISON CLEMENTS 

 DECEMBER 3, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY 

Dennis L. Hupp, Judge 

 S. Jane Chittom, Appellate Defender (Public 

Defender Commission, on brief), for 

appellant. 

 Eugene Murphy, Assistant Attorney General 

(Jerry W. Kilgore, Attorney General, on 

brief), for appellee. 

 Thomas Horace Alsberry appeals from a judgment of the trial 

court revoking his previously suspended sentence. On appeal, he 

contends the trial court erred (1) in refusing his request for a 

mental evaluation prior to sentencing him for his probation 

violation and (2) in imposing all of his previously suspended 

sentence, in excess of twenty-four years, for two misdemeanor 

probation violations. Finding no error, we affirm the judgment of 

the trial court. 

 On January 12, 1995, Alsberry was convicted 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 suspended on the condition he successfully complete 
five years of supervised probation upon his release.1 In October 

of 1997, Alsberry was released from incarceration and placed on 

probation. 

 On May 27, 1998, Alsberry was found to have violated his 

probation for failing to maintain his registration as a sex 

offender and was ordered to serve an additional six months of the 

previously suspended sentence. On June 9, 1999, Alsberry was 

again found to be in violation of his probation for "hiding out in 

the nurses' locker room of the hospital." He was consequently 

required to serve an additional twelve months of the earlier 

suspended sentence. On November 15, 2000, Alsberry was found to 

have violated his probation for failing to maintain a stable 

residence. He was released with credit given against the 

suspended sentence of fifteen days for time served. 

 On January 19, 2001, Alsberry was arrested and charged with 

misdemeanor destruction of private property and "being a Peeping 

Tom." The general district court convicted him of those offenses 

and sentenced him to serve twelve months and thirty days in jail. 

 Following his arrest on those charges, the Commonwealth 

commenced the present probation revocation proceedings in the 

circuit court. After the presentation 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. 

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the court for a psychological evaluation [of Alsberry], and an 

opportunity to place Mr. Alsberry back on probation." Finding 

Alsberry had violated his probation, the trial court revoked his 

probation and ordered him to serve the entire balance of his 

previously suspended sentence, a total of twenty-four 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 discretionary. Because his animate object penetration 

conviction, one of the convictions for which he was originally 

sentenced, and his "Peeping Tom" conviction, upon which his 

probation revocation was partly based, were both convictions 

indicating sexual abnormality, he was explicitly entitled, he 

argues, to an evaluation. Therefore, he contends, the trial court 

erred, as a matter of law, in refusing his request for a mental 

evaluation before sentencing him for his probation violation. 

 "[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 determining whether the trial court 

made an error of law, 'we review the trial court's statutory 

interpretations and legal conclusions de novo.'" Rollins v. 

Commonwealth, 37 Va. App. 73, 79, 554 S.E.2d 99, 102 (2001) 

(quoting Timbers v Commonwealth, 28 Va. App. 187, 193, 503 S.E.2d 

233, 236 (1998)). 

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 Code § 19.2-300 provides as follows: 

 In the case of the conviction in any 

circuit court of any person for any criminal 

offense which indicates 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 defendant or other person acting for 

the defendant, defer sentence until the 

report of a mental examination conducted as 

provided in § 19.2-301 of the defendant can 

be secured to guide the judge in determining 

what disposition shall 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 when a defendant who has been convicted of an 

offense indicating sexual abnormality requests such an evaluation 

prior to sentencing for that conviction. See Simerly v. 

Commonwealth, 29 Va. App. 710, 717, 514 S.E.2d 387, 391 (1999). 

However, we do not agree with Alsberry that the trial court was 

required to order a mental examination before revoking the 

suspended portion of his previously imposed sentence for violating 

the terms of his probation. 

 Although a probation revocation hearing is a criminal 

proceeding, it is not "a stage of a criminal prosecution." Green 

v. Commonwealth, 263 Va. 191, 195-96, 557 S.E.2d 230, 233 (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. 

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Likewise, "[a] probation violation is not itself a criminal 

conviction." Merritt v. Commonwealth, 32 Va. App. 506, 509, 528 

S.E.2d 743, 744 (2000). Rather, a "[r]evocation of probation is 

merely a modification of the sentence" imposed for a prior 

conviction. Id. at 508, 528 S.E.2d at 744. Hence, the issue at a 

revocation proceeding is not what sentence to impose upon the 

defendant for his prior criminal conviction, but whether to 

continue all or any portion of a previously imposed and suspended 

sentence due to the defendant's failure to abide by the terms of 

his probation. 

 Here, Alsberry was convicted on January 12, 1995, of several 

criminal offenses, including animate object sexual penetration. 

For those crimes, he was sentenced to thirty years' imprisonment, 

twenty-five years of which were suspended. On March 1, 2001, 

having found Alsberry to be in violation of the terms and 

conditions of his probation, based in part on his "Peeping Tom" 

conviction, the trial court revoked Alsberry's suspended sentence 

and ordered him to serve the remainder of his original sentence. 

 Accordingly, in revoking the previously suspended sentence 

and ordering Alsberry to serve the balance of that sentence, the 

trial court was not sentencing him on the animate object sexual 

penetration or "Peeping Tom" convictions. The sentences for those 

convictions had already been imposed pursuant to the respective 

criminal prosecutions of those offenses. Rather, the trial court 

was merely "modifying" the sentence previously imposed on Alsberry 

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for his 1995 convictions. Thus, the trial court was not required 

under Code § 19.2-300 to grant Alsberry's request for a mental 

examination before revoking his suspended sentence due to the 

probation violation. We hold, therefore, that the trial court did 

not err, as a matter of law, in refusing to order a mental 

examination. 

 Alsberry also contends, in the alternative, that, given the 

circumstances of this case, the trial court's refusal to order a 

mental examination constituted 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 which stated that "'[t]he hope . . . of reducing the 

number of serious sex crimes lies in a proper psychiatric 

screening of the potential criminal at the stage where 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 Offender and the Criminal Law, S. 18, at 6 

(1951)). In this case, Alsberry had the opportunity to request a 

mental examination pursuant to Code § 19.2-300 prior to his 

sentencing in 1995 for the animate object sexual penetration 

conviction, but did not. We find nothing in the record that 

convinces us that the trial court abused its discretion in denying 

Alsberry's psychological evaluation request, which was made during 

the hearing on his fourth probation violation, more than six years 

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after Alsberry's abnormal behavior first came to light and the 

original sentence was imposed. 

 Alsberry also contends the trial court abused its discretion 

in imposing all of his previously suspended sentence for two 

misdemeanor probation violations.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. 

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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 and 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 

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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, 

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we hold the trial court did not abuse its discretion in imposing 

the previously suspended sentence in its 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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