THE COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Humphreys and Agee 

Argued at Chesapeake, Virginia 

COREY VERNELL OLIVER 

 OPINION BY 

v. Record No. 1884-01-2 JUDGE ROBERT J. HUMPHREYS 

 AUGUST 27, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY 

Thomas V. Warren, Judge 

 William R. Blandford, Jr. (Blandford, 

 Carrico & Newlon, P.C., on brief), for 

appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

 Corey Vernell Oliver appeals the revocation of his suspended 

sentence for distribution of imitation cocaine. Oliver contends 

the trial court abused its discretion in revoking his suspended 

sentence, based upon an act committed by Oliver prior to his 

December 20, 2000 sentencing for the offense. For the reasons 

that follow, we reverse and remand. 

 Oliver committed the offense of distributing imitation 

cocaine on January 13, 2000. While on bond and awaiting trial for 

this offense, Oliver committed an attempted malicious wounding on 

October 25, 2000. On December 20, 2000, Oliver entered into a 

written plea agreement with the Commonwealth, which stated the 

"parties agree[d] that the appropriate disposition of this matter 
[was] two (2) years suspended condition [sic] serve 30 days 

supervised probation [sic] $250 fine." It appears from the record 

that the court sentenced Oliver immediately, and no pre-sentence 

report was requested by either Oliver or the trial court, as 

permitted by Code § 19.2-299(A). The trial court thus sentenced 

Oliver to serve two years in prison, with one year and eleven 

months suspended. 

 On April 18, 2001, Oliver was convicted and sentenced for the 

malicious wounding charge, as well as a related use of a firearm 

charge. The trial court sentenced him to serve thirteen years in 

prison, with nine years suspended. During the April 18 trial, the 

Commonwealth notified the trial court of the December 20 drug 

conviction, and the court sua sponte issued a show cause to revoke 

the suspended sentence imposed on December 20, 2000. The grounds 

for the show cause order were stated as "failing to abide by the 

terms of probation." After the hearing on the show cause on June 

25, 2001, the trial court revoked Oliver's suspended sentence 

finding: 

When you were in Court and you were 

convicted of distribution of imitation 

cocaine, you could have gotten a lot more 

time than you got. You only got one month 

to serve. And before you're even sentenced 

for it, you're out riding around like a 

[vigilante] in Blackstone shooting a gun. 

And it's not going to happen that the Court 

just ignores that. . . . The time that was 

heretofore suspended is now revoked and is 

added to the time you're serving, which will 

be one year and eleven months plus the time 

that you're serving now. 

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 On appeal, Oliver contends that the trial court erred in 

revoking his suspended sentence, as he committed the malicious 

wounding and related firearm offense before the trial court 

imposed the suspended sentence and probation for the drug charge. 

We agree. 

 The Commonwealth contends Oliver failed to raise the specific 

argument concerning the timing of the malicious wounding offense 

at trial. We agree. Accordingly, his appellate contention is 

procedurally barred pursuant to Rule 5A:18, unless he has shown 

"good cause" or that the "ends of justice" require our review.1 

While Oliver has not shown "good cause," we find that Oliver has 

made an affirmative showing that a miscarriage of justice has 

occurred in this matter, as there is no evidence in the record 

that Oliver committed a violation which would render his suspended 

sentence and probation subject to revocation. Therefore, we 

consider Oliver's appeal under the "ends of justice" exception to 

Rule 5A:18.2 " 

 [U]nder Virginia law, once a defendant receives a suspended 

sentence, a judge's power to revoke the suspension of sentence and 

probation is governed by statute."3 "These statutes 

 1 See Rule 5A:18. 

2 See Redman v. Commonwealth, 25 Va. App. 215, 221, 487 

S.E.2d 269, 272 (1997). 

3 Carbaugh v. Commonwealth, 19 Va. App. 119, 123, 449 S.E.2d 

264, 266 (1994) (citing Grant v. Commonwealth, 223 Va. 680, 684, 

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obviously confer upon trial courts 'wide latitude' and much 

'discretion in matters of suspension and probation . . . to 

provide a remedial tool . . . in the rehabilitation of criminals' 

and, to that end, 'should be liberally construed.'"4 Code 

§ 19.2-306 provides as follows, in relevant part: 

The court may, for any cause deemed by it 

sufficient which occurred at any time within 

the probation period, or if none, within the 

period of suspension fixed by the court, or 

if neither, within the maximum period for 

which the defendant might originally have 

been sentenced to be imprisoned, revoke the 

suspension of sentence and any probation, if 

the defendant be on probation, and cause the 

defendant to be arrested and brought before 

the court at any time within one year after 

the probation period, or if no probation 

period has been prescribed then within one 

year after the period of suspension fixed by 

the court, or if neither a probation period 

nor a period of suspension has been 

prescribed then within one year after the 

maximum period for which the defendant might 

originally have been sentenced to be 

imprisoned, whereupon, in case the 

imposition of sentence has been suspended, 

the court may pronounce whatever sentence 

might have been originally imposed. 

 Despite the wide latitude granted to trial courts in revoking 

a suspended sentence and probation, the language of Code 

§ 19.2-306 clearly specifies the periods in which the events 

 

292 S.E.2d 348, 350 (1982); Dyke v. Commonwealth, 193 Va. 478, 

479, 69 S.E.2d 483, 484 (1952)). 

4 Deal v. Commonwealth, 15 Va. App. 157, 160, 421 S.E.2d 

897, 899 (1992) (quoting Nuckoles v. Commonwealth, 12 Va. App. 

1083, 1085-86, 407 S.E.2d 355, 356 (1991); Dyke, 193 Va. at 484, 

69 S.E.2d at 486. 

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amounting to cause for revocation must occur in order for a judge 

to properly revoke a suspended sentence.5 Specifically, the 

statute expressly states that the judge may revoke suspension of 

sentence and probation for any sufficient cause that "occurred at 

any time within" the specified periods.6 It logically follows 

then that "[g]enerally, where the suspension is conditioned upon 

future good conduct," as it was here, "the revocation of the 

suspension must be predicated upon a showing of conduct which 

occurs subsequent to the imposition of the suspended sentence."7

 However, as the Commonwealth points out, "[d]eceit, 

untruthfulness and deception at the time of the sentencing are 

always grounds for revoking a suspended sentence."8 Moreover, 

"[t]here is 'significant authority for the proposition that a 

trial court has the discretion to revoke probation if information 

is discovered which, had it been known at the time of sentencing, 

would have led the trial court to deny probation,'" if the 

information at issue was in some way misrepresented and/or 

concealed by the defendant.9

 5

 Code § 19.2-306. 

6

 Id. 

7 Bryce v. Commonwealth, 13 Va. App. 589, 590-91, 414 S.E.2d 

417, 418 (1992). 

8 Cottrell v. Commonwealth, 12 Va. App. 570, 574, 405 S.E.2d 

438, 441 (1991). 

9

 Id. (citing State v. Darrin, 325 N.W.2d 110, 113 (Iowa 

1982); Annotation: Revocation of Probation Based on Defendant's 

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 Nevertheless, although the record here indicates that the 

trial judge, at the time of sentencing, was unaware of Oliver's 

pending charges, nothing in the record indicates that the trial 

judge's lack of awareness was attributable to any "deceit, 

untruthfulness [or] deception" on the part of Oliver. Indeed, as 

stated above, Oliver was sentenced immediately upon the trial 

court's acceptance of a plea agreement which stipulated that both 

the Commonwealth and Oliver considered the agreed sentence 

appropriate under the circumstances. Furthermore, since the same 

prosecutor represented the Commonwealth in both cases, the 

Commonwealth was clearly aware of the charges, which had been 

pending against Morris in the same jurisdiction for approximately 

two months, when the Commonwealth agreed that the sentence was 

appropriate. Accordingly, the Commonwealth's fraud argument lacks 

merit on its face.10

 We find that the trial judge erred in considering the 

offenses that occurred prior to sentencing as a basis to revoke 

Oliver's suspended sentence and probation. Thus, we reverse and 

remand with directions to the trial court to vacate its order 

 

Misrepresentation or Concealment of Information From Trial 

Court, 36 A.L.R.4th 1175 (1985)). 

10 See Fisher v. Commonwealth, 236 Va. 403, 417, 374 S.E.2d 

46, 54 (1988) ("No litigant, even a [party] in a criminal case, 

will be permitted to approbate and reprobate - to invite 

error, . . . and then to take advantage of the situation created 

by his own wrong."). 

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revoking Oliver's suspended sentence and probation, and to 

reinstate the same. 

Reversed and remanded. 

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