COURT OF APPEALS OF VIRGINIA

Present: Judg es Benton, Fran k and Clements Argued at Rich mond, Virginia

KEITH WILLIAMS , S/K/A KEITH N. WILLIAMS MEMORANDUM OPINION * BY v. Record No. 2262-00-2 JU DGE JEAN HARR ISON CLEMENTS FEBRUARY 5, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND James B. Wilkinson, Judge Gregory W. Frankl in, Assistan t Public Defender (Office of th e Public Defender, on brief), for appellant. Linwood T. Wells, Jr ., Assistan t Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Keith Williams appeals from a judgment of the trial court revoking a portion of his previously suspen ded sentence s. On appeal, he contends the trial court abused its discretion in revoking his suspended sentences becaus e no evidence was presented showing any unde rlying wrongdoing. We agree and reverse the revocation of hi s previously susp ended sentences. As the parties are fu lly conversant with the record in this case, and because this memorandum opinion carries no precedential value, this opin ion recites only those facts and in cidents of the

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.proceedings as necess ary to the parties' understandin g of the disposition of this appeal. When the sufficiency of the evidence is ch allenged on appeal, we review the eviden ce "in the light most favorable to the Commonwealth, granting to it all reason able inferences fairly deducible th erefrom." Bright v. Commonwealth , 4 Va. App. 248, 250, 356 S.E.2d 443, 444 (1987). "In so do ing, we must discard the evidence of the accused in confli ct with that of the Commonwealth, an d regard as true all the credible evidence favorable to the Common wealth and all fair in ferences that may be drawn ther efrom." Watkins v. Commonwealth , 26 Va. App. 335, 349, 494 S.E.2d 859, 866 (1998). We ar e further mind ful that the "credibility of a witness, the weight acco rded the testimony, and the inferences to be drawn from proven facts are matt ers solely for the fact[ ]finder's dete rmination." Keyes v. City of Virginia Beach , 16 Va. App. 198, 199, 428 S.E.2d 766, 767 (1993). When the defendant ha s failed to co mply with th e conditions of a suspended se ntence, the trial court has the po wer to revoke the sentence in wh ole or in part. Russnak v. Commonwealth , 10 Va. App. 317, 321, 392 S. E.2d 491, 493 (1990). "A tr ial court has broad discreti on to revoke a suspende d sentence and probation based on Code § 19.2-3 06, 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).

- 2 -"The cause deemed by the court to be sufficient for revoking a suspension must be a reasonable cause. The sufficie ncy of the evidence to su stain an order of revocation 'is a matter within th e sound disc retion of the trial court. Its finding of fact and judgment thereon are re versible only upon a clear showing of abuse of discreti on.' The discretion required is a judicial discretion, the exercise of which 'implies conscientious judgment, not arbi trary action.'" Hamilton v. Commonwealth , 217 Va. 325, 327, 228 S.E.2d 555, 556 (1976) (quoting Marshall v. Commonwealth , 202 Va. 217, 220, 116 S.E.2d 270, 273 (1960) (quoting Slayton v. Commonwealth , 185 Va. 357, 367, 38 S.E.2d 479, 484 (1946))). Williams argues the trial court abus ed its discretion because there was no evidence of new charges while he was on probation. Further, he conten ds, the evidence was not sufficient to show he attempted to rape or rob Sharon Drummer or wrongfully possessed her property. We agree. Here, the Common wealth alleged that Williams had violated the conditions of hi s previously suspended se ntence of August 26, 1999, by "having char ges of possession of cocaine and felony obstruction of justice pending in the Richmo nd Circuit Court II" and by attempting to rape and rob Sh aron Drummer. At the commenceme nt of the revocati on proceeding, the Commonwealth stated th at Williams had new ch arges for po ssession of cocaine and obstru ction of justice and that he had been convicted of each. Su bsequently, Will iams' attorney and the trial judge had the foll owing exchange:

- 3 -THE COURT: They're two convictions? MR. STALLARD: Well, Yo ur Honor, I would say the possession of cocaine an d felony obstruction refe rred to in th is letter are charges which he pled guilty to in July or August of last year. He was indicted again in April of this year on charges he had previously been convicted of. Those charges were nol prossed Monday last we ek because the other court real ized they were, in fact, duplicate char ges that he had previously been convicted. THE COURT: Well, it helps the case. Okay. Go right along. Neither the Common wealth nor Williams pres ented any evid ence about these charges. During the closing argume nt, Williams ' attorney and the trial judge had the foll owing exchange: MR. STALLARD: Your Ho nor, again, the two charges, the possession of cocaine and felony obstruction charged — THE COURT: Yo u don't need to worry about that. Officer Carlos Coll ins, the Commonwealth 's only witness, testified that, wh en he responded to the scene at 2704 Midlothian Turnpike, he met Sharon Drummer. 1 Collins stated that, when he entered the reside nce, Williams was coming down the stairs with a television in hi s hand. Williams agreed to be searched and Officer Collins recovered two watches, a necklace, and a television remote cont rol from Williams' righ t front pock et. From Williams' left front pocket, Co llins recovered sunglasses and

1 Sharon Drummer committed suicide several days later.

- 4 -keys. In Will iams' right rear pocket , Collins found a purse containing a female's Vi rginia identification card. Williams told Collins that Drummer had given him the purse and that he had bought the watches as a gift for her but wa s "taking them back." Testifying in his own defense, Williams stated that he did not know Drummer but kn ew her boyfriend, To dd. Williams added that he had earl ier loaned the boyfriend and Drummer $2 00 to pay their rent and that, up on seeing them, asked them for his money. Drummer's boyf riend, according to Willia ms, gave him the items, "their stuff," in paym ent of the debt they owed. Williams also testified that, when Drummer balked at giving the items to Williams, her boyf riend said that he could do what he wanted and handed the necklace to Williams. Williams further test ified that he did not rememb er the identifica tion card and de nied that the officer found a wa llet in his pock et. Furthermore, according to Williams, the boyfriend was pres ent when the po lice came. A witness called on Williams' behalf testified she ha d taken him to the couple's home several times to attemp t to collect the $200 Williams had lent them. The trial judg e made no find ings of fact to support his judgment that there was sufficient cause to revoke Williams' suspended senten ces. Our re view of the record convinces us that there was no evidence of new charges pend ing against Williams during his probation and the suspen sion of his sentences. Furthermore, in his remarks to Williams' attorney, the trial judge

- 5 -discounted this allegation as a basis for his judg ment. Likewise, there was no evidence of attempted rape or attempted ro bbery of Drummer. In drawing inferences from all the circum stances, the most the fact finder could conclude was that Williams was merely in possession of property owned by or prev iously owned by Drummer. We hold, therefore, that there was no reasonable cause to revoke Williams' suspen ded sentences. The trial cour t's judgment was arbitrary and a clear abuse of discreti on. Accordingly, the revocation of Williams' previo usly suspended sentences is reversed. Reversed and dismissed.

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