COURT OF APPEALS OF VIRGINIA

Present: Judges Kelsey, McClanahan and Senior Judge W illis Argued at Chesapeake, Virginia

LADONNNA LOU JOYCE MEMORANDUM OPINION ∗ BY v. Record No. 1907-05-1 JUDGE ELIZABETH A. McCLANAHAN NOVEMBER 7, 2006 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Charles E. Poston, Judge Michael A. Gray, Assistant Public Defender (Alvin M. Whitley, Assistant Public Defender, on brief), for appellant. Leah A. Darron, Senior Assistan t Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Ladonna Lou Joyce appeals the revocation of the suspensions of her April 11, 2003 and February 13, 2004 sentences on numerous forgery and embezzlement convictions. Joyce contends the trial court erred (i) in revoking her February 13, 2004 suspensions because their revocation was based on crimes she committed prior to that date; and (ii) in otherwise imposing all of the unserved portions of the original sentences upon rese ntencing because the result was disproportionate to the crimes that triggered th e revocations. For the reasons that follow, we affirm the court’s revocation of Joyce’s Ap ril 11, 2003 suspensions and imposition of the unserved portions of the original sentences. However, we re verse the court’s revocation of her February 13, 2004 suspensions and remand with di rections to the cour t to reinstate those suspensions.

∗ Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - I. BACKGROUND In 2003, Joyce pleaded guilty to and was convict ed on five indictments, each charging one count of forgery (CR03000680). She was sent enced to serve one year in prison on each offense, all of which was suspended. Joyce also pleaded guilty to one count of embezzlement for which she was sentenced to serve five years in prison, with four years and six months suspended (CR03001325). The trial court ente red the final sentencing orders on all six offenses on April 11, 2003. Later that year, Joyce pleaded guilty to and was convicted of two counts of embezzlement (CR03002069). She was sentenced to five years in prison, with four years suspended, on each offense. The trial court en tered the final sentencing order on those two offenses on February 13, 2004. 1 Joyce was subsequently indicted on two c ounts of obtaining money by false pretenses, three counts of uttering, and thre e counts of forgery. Those crimes were committed in January 2004. In October 2004, Joyce pleaded guilty to and was convicted of all eight offenses. 2 Based on those convictions, the trial court revoked J oyce’s suspensions of her April 11, 2003 and February 13, 2004 sentences. For the April 11, 2003 sentences, the trial court imposed all five years of the original sentences on the five forgery convictions, a nd all four years and six months remaining on the five-year sentence on the embezzl ement conviction, for a total of nine years

1 In both the April 11, 2003 and February 13, 2004 sentencing orde rs, the trial court “suspended the execution” of all or a portion of the sentences, pursuant to Code § 19.2-306(A).

2 With the exception of one c ount of uttering, Joyce was sent enced to two years each for those offenses, for a total of fourteen years, all of which was suspended. On the remaining uttering offense, Joyce was sentenced to serv e three years and seven months in prison.- 3 - and six months to serve in prison. 3 For the February 13, 2004 senten ces, the trial court imposed all four years remaining on each of the two embe zzlement convictions, for a total of eight years to serve in prison. 4

II. ANALYSIS

A trial court’s revocatio n of a suspension of sentence will not be disturbed on appeal in

the absence of an abuse of discretion. Allison v. Commonwealth , 40 Va. App. 407, 411, 579 S.E.2d 655, 657 (2003); Davis v. Commonwealth , 12 Va. App. 81, 86, 402 S.E.2d 684, 686 (1991). “An abuse of discretion can be found if th e trial court uses an ‘improper legal standard in exercising its discretionary function.’” Congdon v. Congdon , 40 Va. App. 255, 262, 578 S.E.2d 833, 836 (2003) (quoting Thomas v. Commonwealth , 263 Va. 216, 233, 559 S.E.2d 652, 661 (2002)); see Hamilton v. Commonwealth , 217 Va. 325, 327-28, 228 S.E.2d 555, 556-57 (1976) (trial court abused di scretion in revoking suspension w ithout statutory authority). A. February 13, 2004 sentences Joyce contends the trial cour t erred when it revoked the su spension of her February 13, 2004 sentences based on the crimes she committed the previous month. Joyce admits she did not raise this argument in the trial court. She asse rts on appeal, however, that the ends of justice exception to Rule 5A:18 should apply. We agree. See Oliver v. Commonwealth , 38 Va. App. 845, 848, 568 S.E.2d 465, 466 (2002). “[U]nder Virginia law once a defendant receive s a suspen[sion] [of] sentence, a judge’s power to revoke the suspension . . . is gove rned by statute.” Carbaugh v. Commonwealth , 19

3 A resentencing order was entered on A ugust 22, 2005 for the forgery convictions (CR03000680). A separate resent encing order was entered on the same date for the embezzlement conviction (CR03001325).

4 A separate resentencing order was also entered on August 22, 2005 for these two embezzlement convictions (CR03002069).- 4 - Va. App. 119, 123, 449 S.E.2d 264, 266 (1994) (citing Grant v. Commonwealth , 223 Va. 680, 684, 292 S.E.2d 348, 350 (1982); Dyke v. Commonwealth , 193 Va. 478, 479, 69 S.E.2d 483, 484 (1952)). Code § 19.2-306(A) provides, in pertinen t part, that when a trial court “has suspended the execution or imposition of sentence, the cour t may revoke the suspension of sentence for any

cause the court deems sufficient that occurred at any time . . . within the period of suspension fixed by the court.” In other words, “‘the revoc ation of the suspension must be predicated upon a showing of conduct which occurs subsequent to the imposition of the suspen[sion].’” Oliver , 38 Va. App. at 849-50, 568 S.E.2d at 467 (quoting Bryce v. Commonwealth , 13 Va. App. 589, 590-91, 414 S.E.2d 417, 418 (1992)); see Hamilton , 217 Va. at 328, 228 S.E.2d at 557 (reversing trial court’s revocation of suspension based on crime committed prior to sentence). The

Commonwealth established no such predicate act for the revoca tion of Joyce’s February 13, 2004 suspensions. The January 2004 crimes were committed prior to the imposition of the suspensions—not subsequent to them. We thus reverse the trial court’ s revocation of those suspensions because it did not have the statutory authority to do so. B. April 11, 2003 sentences Joyce does not make the same argument rega rding the revocation of the suspensions of her April 11, 2003 sentences, as her January 2004 crimes clearly provided a lawful basis for revoking the suspensions of those sentences. Rather , she argues that after the revocation the trial

court abused its discretion at re sentencing, when it imposed all of the unserved portions of those sentences—a period of incarcerati on totaling nine years and six months—which she asserts is disproportionate to the predicate cr imes that triggered the revocation. 5 This argument is without

merit.

5 Joyce also makes this argument as to her resentencing on the February 13, 2004 suspended sentences, which is made moot by our re versal of the trial cour t’s revocation of those suspended sentences for the reasons set forth above in section A.- 5 - Because the trial court “originally suspe nded the execution of [Joyce’s April 11, 2003] sentence[s],” the unserved portions of those sentences were “i n full force and effect” upon the trial court’s subsequent revocation of their su spension, pursuant to the express terms of Code § 19.2-306(C). And “[t]he determina tion under Code § 19.2-306(C) of what, if any , part of the restored original sentence is to be resuspended is a matter that lies within the trial court’s sound

discretion.” R hodes v. Commonwealth , 45 Va. App. 645, 650, 613 S.E.2d 466, 469 (2005) (emphasis added). Following revocation of the suspension of Joyce’s April 11, 2003 sentences,

the trial court did not abuse its discretion in imposing all of the unserved portions of those

sentences—no different than had the trial court originally imposed the sentences without any suspension of their execution. See Williams v. Commonwealth , 270 Va. 580, 584, 621 S.E.2d 98, 100 (2005) (“When a statute prescribes a ma ximum imprisonment penalty and the sentence does not exceed that maximum, the sentence wi ll not be overturned as being an abuse of discretion.” (citation and internal quotation marks omitted)).

III. CONCLUSION Accordingly, we affirm the trial court’s re vocation of the suspensi ons of Joyce’s April 11, 2003 sentences and imposition of all the unserve d portions of those original sentences in CR03000680 and CR03001325. We reverse, howeve r, the court’s August 22, 2005 order in CR03002069 revoking Joyce’s February 13, 2004 suspen sions; and remand with directions for

the court to reinstate the Februa ry 13, 2004 sentencing order, whic h suspended four years of the five-year sentence on each of tw o embezzlement convictions. Affirmed in part, reversed in part, and remanded.