COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Causey and Senior Judge Clements

JOWELL TRAVIS LEGENDRE MEMORANDUM OPINION *
v. Record No. 0567

- 21

- 2 PER CURIAM OCTOBER 18, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY

Frederick G. Rockwell, III , Judge ( J. M artelino, Jr. , on brief), for appellant. (Jason S. Miyares, Attorney General; Mason D. Williams, Assistant Attorney General , on brief), for appellee. Appellee submitting on brief.
Jowell Travis Legendre (“ appellant ”) appeals the decision of the Circuit Court of Chesterfield County finding him in violation of the conditions of his previously suspended sentence and revoking the balance of the suspension

. On appeal, appellant argues that his probation violation
based on new conviction s 1 should be reversed if the new conviction s are reversed on appeal. He also argues that the trial court abused its discretion by imposing ten years of active incarceration. After examining the briefs and record in this case, the panel unanimously holds that oral argument is unnecessary because “the appeal is wholly without merit.” Code § 17.1

- 403(ii) (a); Rule 5A:27(a).

* Pursuant to Code § 17.1

- 413, this opinion is not designated for publication.

1 The assignment of error refers to an appeal of a “felony conviction” to the Supreme Court of Virginia from this Court, but the referenced appeal addressed several convictions. See Legendre v. Commonwealth , No. 0642

- 20

- 2 (Va. Ct. App. May 5, 2021 ); Legendre v. Commonwealth , No. 21 0 445 (Va. Feb. 1 , 2022 ). UNPUBLISHED- 2

- BACKGROUND “In revocation appeals, the trial court’s ‘findings of fact

. . . will not be reversed unless there is a clear showing of abuse of discretion.’” Jacobs v. Commonwealth , 61 Va. App. 529, 535 (2013) (quoting Davis v. Commonwealth , 12 Va. App. 81, 86 (1991)). “The evidence is considered in the light most favorable to the Commonwealth, as the prevailing party below.” Id.
In 2007, appellant pleaded guilty to statutory burglary and the trial court sentenced him to fift een years of incarceration , with thirteen years suspended for twenty years, conditioned upon good behavior a nd supervised probation. The suspended sentence was revoked in part and resuspended in 2009 and again in 2013

. For the 2013 revocation, the trial court resuspended ten
year s of the sentence for a period of ten years, conditioned on appellant’s good behavior, compliance with the terms of his supervised probation, and payment of court costs. Appellant was released from incarceration to supervised probation in April 2018

. In February 2020, appellant’s probation officer reported to the trial court that appellant had failed to report for multiple appointment s and tested positive for drugs. The probation officer also reported that on November 18, 2019, a jury in the City of Charlottesville Circuit Court had
convicted appellant of several violent felo nies

. At t he May 6, 2021 revocation hearing , appellant stipulated that he had been convicted by a jury in Charlottesville, V irginia , of “ sexual object penetration, sodomy, robbery, credit card fraud , [and] peeping into a dwelling. ” The trial court found appellant in violation of the terms of his suspended sentence. Noting that this was appellant’s third revocation hearing and he had committed new offenses, the Commonwealth aske d the trial court to revoke the balance of his

sentence. A ppellant aske d the trial court to consider revoking only “a portion” of his suspended

sentence and r emoving him from probation considering the lengthy sentence s that were imposed on him due to the new convictions and revocations of probation in other jurisdictions. In allocution,- 3

-

appellant acknowledged his past offenses but contested the facts supporting the new convictions.
T he trial court found the nature of the new offenses “horrible” and was troubled that the suspended sentence had not deterred appellant ’s conduct

. T he trial court imposed the balance of appellant’s suspended sentence

. This appeal follow s
. ANALYSIS Appeal of New Convictions Appellant argues that this Court “should reverse the trial court’s finding of a probation
violation and its excessive sentenc e ” if the new convictions from the other jurisdiction are reversed. H e concedes , however, that after this Court granted t his appeal, t

he Supreme Court of Virginia refused his petition challenging the new convictions. He also has made no representations to this Court that he has sought further appeal of these convictions. Given that the condition on which this assignment of error is premised has been resolved adversely to appellant , his argument is

moot. See Patters on v. Commonwealth , 12 Va. App. 1046, 104 8

- 50 (1991) ( holding that because the appeal of the defendant ’s new conviction was denied and no further appeal was sought , the
defendant ’s argument that he had not violated probation by committing the offense was m oot ). Reimposed Sentence Appellant argues that the trial court abused its discretion by revoking all of the ten

- year suspended sentence without resuspend ing any of it. “In revocation appeals, the trial court’s ‘

. . . judgment will not be reversed unless there is a clear showing of abuse of discretion.’” Jacobs , 61 Va. App. at 535 (quoting Davis , 12 Va. App. at 86). After suspending a sentence, a trial court “may revoke the suspension of sentence for any
cause the cou rt deems sufficient that occurred at any time within the probation period, or within the period of suspension fixed by the court.” Code § 19.2

- 306(A) (2016)

. Unless stated otherwise in the sentencing or revocation order, a period of suspension begins “fr om the moment of

. . .- 4

-

pronouncement” of a sentence. Green v. Commonwealth , 69 Va. App. 99, 104 (2018) ; see Lee v.
Commonwealth , 71 Va. App. 205, 211 (2019) (“[I]n Green , the trial court’s sentencing order did not include language specifying when the period of suspension was to begin. In the case now before us, however, the trial court’s sentencing order is rather clear that the period of suspension of the suspended sentence and the good behavior required in it

. . . did not begin until appellant’s re lease from incarceration.”)

. “ A condition of good behavior accompanies the period of suspension as a
matter of law. ” Burnham v. Commonwealth , 298 Va. 109, 116 (2019)

. “A new conviction certainly constitutes good cause to revoke the suspension of a previously imposed sentence.” Booker v. Commonwealth , 61 Va. App. 323, 338 (2012 ) ; see id. (“[T]he court below did not abuse its discretion in revoking the entirety of appell ant’s eight

- year suspended sentence in light of th[e] new conviction.”) ; Burnham , 298 Va. at 117

- 18 (“By committing new
crimes , the defendant violated the long[

- ]established implicit condition of good behavior

. Consequently, the court possessed the authority to revoke his previously suspended sentence for crimes committed during the period of suspension.” (emphases added))

. Here, we hold that the trial court did not abuse its discretion in revoking appellant’s entire suspended sentence and reimposing the remaining balance

. After appellant’s last revocation hearing in 2013, the trial court sentenced appellant to eleven years and six months of incarceration, with ten years suspended for a period of ten years

. Thus, the period of suspension began in 20 13 and was to last until 2023. Appellant received his new convictions within this period , violating the implicit condition of good behavior . New convictions are good cause to revoke a suspended sentence. Given the “horrible” nature of the new conviction s and the fact that this was appellant’s third revocation proceeding, the trial court did not abuse its discretion in revoking the entirety of- 5

-

appellant’s ten

- year sentence. 2 Alsberry v. Commonwealth , 39 Va. App. 314, 3 16

- 17, 32 1

- 2 2 (2002 ) (upholding trial court’s decision to revoke the defendant’s probation and reimpose “the entire balance of his previously suspended sentence, a total of twenty

- four years and five and

one
- half months,” whe n the d efendant had new misdemeanor 3 convictions , the defendant had violated probation four times , and the original offenses were of a “grievous nature” ).
CONCLUSION
For the reasons above , the trial court’s decision is affirmed. Affirmed

.

2 Appellant’s reliance on Payne v. Commonwealth , No. 1759

- 01

- 1 (Va. Ct. App. Aug. 20, 2002), is misplaced. First, we note that unpublished opinions are not binding on this Co urt. Second, Payne is distinguishable in that, while Payne, like appellant here, had a new conviction for a crime he told the court he did not commit, that conviction was obtained by Payne making an Alford plea. Payne , slip op. at 3

- 4; Ramsey v. Commonwe alth , 65 Va. App. 593, 596 n.1 (2015) (“ When offering an Alford plea of guilty, a defendant asserts his innocence but admits that sufficient evidence exists to convict him of the offense. ” (emphasis added) ). In contrast, here, appellant was convicted of the new crimes by a jury. The trial court here noted this fact , stating, “ it ’ s significant to the [c] ourt that yo u were convicted by a jury of these offenses. ”

3 The defendant in Alsberry had new convictions for “misdemeanor destruction of private property” and “being a Peeping Tom

. ” 39 Va. App. at 316. Alsberry does not specify what section of the Code the defend ant violated in “being a Peeping Tom,” but appellant likely violated Code § 18.2

- 130, entitled “Peeping or spying into dwelling or enclosure.” At the time of Alsberry’s conviction, a violation of Code § 18.2

- 130 was a misdemeanor. See Code § 18.2

- 130(E) (1999)

.