COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Willis and Bumgar dner Argued at Rich mond, Virginia

THOMAS ARTHUR CHILTON, JR. MEMORANDUM OPINION * BY v. Record No. 1265-00-2 JU DGE JAMES W. BENTON, JR. AUGUST 28, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Herbert C. Gill , Jr., Judge Craig S. Cooley for appellant. Donald E. Jeffrey, III, Assistan t Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. The sole issue raised by this appeal is whether the appellant's suspended senten ce was extant when the trial judge revoked it and ordered him to prison. We ho ld that it was and affirm the judgment.

I. On October 4, 1990 , Thomas A. Ch ilton, Jr. signed a plea agreement, and he pled guilty to on e count of forgery and to one count of uttering. By order entered November 21, 1990, the trial judge sentenced Ch ilton "on the char ge of forgery, to . . . a term of 10 years, with al l suspended for 10 years upon the conditions that [Chilton] serve 12 months in . . . jail " and "[o]n the chargeof uttering, . . . to . . . a term of 10 year s, with al l suspended for 10 years." The or der included as "conditions of the suspended . . . sentences . . . th at [Chilton] must keep the peace, be of good behavior and obey all laws for a period of 10 years (each charge)." In ad dition, the order "places [Chi lton] on supervised probation upon release from confinement." Se veral years later, in a ruling that is not contested by this ap peal, the tr ial judge amended the sent encing order to delete the requirement of "supervised pr obation upon release from confinement" and found that this requiremen t "was not a part of [Chilton's] plea agreement." Following a hear ing in April 1992, the trial judge found that Chilton violat ed the conditions of his suspende d sentence. The judge entered an order on April 22, 1992 revo king "the previously suspended sent ence . . . on the charge of forgery," ruling that "the previously suspended sentence on the charge of uttering remain as previo usly imposed," an d sentencing Ch ilton, "on the charge of forgery, to confinemen t . . . for a term of 9 years." Following hear ings in April 20 00 and May 2000, the trial judge found that Chilton agai n violated the conditio ns of his suspended sentence. The judge en tered orders on May 19, 2000 which revoked the previously suspen ded ten-year sentence on the charge of uttering and "re-suspen d[ed] 5 years [o f that sentence], giving [Chilton] 5 years to serve." This appeal followed from the entry of the May 19, 2000 orders.

- 2 -II. Chilton conten ds that his arrest in 1992 revoked his suspended senten ce on the uttering charge and that the trial judge did not re-suspend the uttering sentence wh en he revoke d Chilton's forgery sentence . He argues that the judge's oral comments at the 1992 hearing are dispos itive of his actual ru ling and prove that the judge did not re-suspend the uttering sentence. Therefore, Chilton contends the trial judge er red by imposing a sentence on the uttering charge on May 19, 2000. Chilton relies on Code § 19.2-306 for his argument that his arrest automatically revoked the su spended senten ce on the uttering conviction. In pertinent pa rt, that statute states as follows: The court may, for any cause deemed by it sufficient which occurred at any time within the probation period . . . revoke the suspension of sentence . . . and cause the defendant to be arrested . . . , whereupon, in case the imposition of sentence has been suspended, the court may pronounce whatever sentence might have been originally imposed. The trial judge's Show Cause Order, which was the basis for Chilton's arrest in February 1992, merely provided that Chilton should "show cause why the suspended sentence previously imposed should not be revoked." Whether or not Chilton's arrest revoked the suspended sentence, the issue remains whether the trial judge re-imposed it as the statute allows. The record establishes that at the close of the 1992 hearing, the judge

- 3 -said: "The Court will revoke the balance of the 10 years that it sentenced you on the forgery offense and require that you pull the balance of that time in the penitentiary." Although this comment does not mention the uttering charge, it also does not indicate that the judge intended Chilton to be free of the burden of the other suspended sentence. More importantly, the express language of the trial judge's 1992 order directly contradicts Chilton's argument. The Supreme Court has consis tently "stated that '[i]t is the firmly established law of this Commonwealth that a trial co urt speaks only through its written orders.'" Walton v. Commonwealth , 256 Va. 85, 94, 501 S.E.2d 134, 14 0 (1998) (citat ion omitted). See also Cunningham v. Smith , 205 Va. 205, 208, 135 S.E.2d 770, 773 (1964). Moreover, ap pellate courts "presu me" that the trial judge's order "a ccurately refl ects what tr anspired." Stamper v. Commonwealth , 220 Va. 260, 280-81, 257 S. E.2d 808, 822 (1979). In view of the opport unity that attorneys are af forded to have orders corrected, see id. , and in the absence of an objection to an order, we will appl y "[t]his presum ption . . . wh ere an order conflicts with a transcript of related pr oceedings." Marttila v. City of Lynchburg , 33 Va. App. 592, 598, 535 S.E.2d 693, 696 (2000). The record establishe s that the April 22, 1992 order contains the judge's expl icit ruling "that the previously suspended sentence on the ch arge of uttering remain as previously imposed."

- 4 -Thus, Chilton wa s subject to the condit ions attendant to the suspension of th e uttering sentence when the Commonweal th alleged he violated those cond itions. We hold that the trial judge did not err in entering or ders on May 19 , 2000 revoking the suspended sentence on the uttering charge. By reply brief, Ch ilton argues for the first time that the April 22, 1992 order wa s not served on him and that he had a right to notice and to be pr esent "when an alteration or addition to his sentence is made." At the hearin g from which this appeal arises, Chilton's trial at torney only argued "tha t when the plea bargain was entered in this case . . . the 20 ye ars was al l handled together . . . [and] th at there is still no outstanding time on the uttering charge." Because Chilto n raised no is sue at trial concerning a right to be pres ent or any othe r due process concerns, we will no t consider those is sues on appeal. See Rule 5A:18. For these reas ons, we affirm the judgment. Affirmed

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