THE COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Hump hreys and Agee Argued at Ches apeake, 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 COUR T OF NOTTOWAY COUNTY Thomas V. Wa rren, Judge William R. Blandfor d, Jr. (Bla ndford, Carrico & Newlon, P.C., on brief), for appellant. Kathleen B. Martin , Assistant Attorney General (Jerry W. Kilgore, Atto rney General, on brief), for appellee.

Corey Vernell Ol iver appeals the revoca tion of hi s suspended sentence for distributi on of imitatio n cocaine. Ol iver contends the trial court ab used its discretion in revoking his suspended sentence, based up on an act comm itted by Oliver prior to his December 20, 2000 sent encing for the offens e. For th e reasons that follow, we re verse and remand. Oliver committed the offense of dist ributing imitation cocaine on January 13, 2000. While on bond and awaiting trial for this offense, Oliver committed an attempted malicious wo unding on October 25, 2000. On December 20, 2000, Oliver entered into a written plea agreemen t with the Commonweal th, which st ated the "parties agree[d] that the appropriat e disposition of this matter[was] two (2) ye ars suspended condition [sic] se rve 30 days supervised probation [sic ] $250 fine." It ap pears from the record that the court sentence d Oliver immediately, and no pre-sentence report was requested by either Oliver or the trial co urt, as permitted by Code § 19 .2-299(A). Th e trial court th us sentenced Oliver to serve two years in prison, with one year and eleven months suspended. On April 18, 2001, Oliver was convicted and sentence d for the malicious woun ding charge, as well as a related use of a firearm charge. The trial cour t sentenced him to serve thirteen years in prison, with nine years suspende d. During the Ap ril 18 trial, the Commonwealth notified the trial court of the Decemb er 20 drug conviction, an d the court sua sponte issued a show cause to revoke the suspended sent ence imposed on December 20, 2000. The grounds for the show cause orde r were stated as "fai ling to abide by the terms of probation." After the hearin g on the show cause on June 25, 2001, the tr ial court revoke d Oliver's susp ended 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.

- 2 -On appeal, Oliver contends that the trial court erred in revoking his suspende d sentence, as he co mmitted the malicious wounding and related firearm offens e before the trial court imposed the suspen ded sentence and probatio n for the drug charge. We agree. The Commonwealth cont ends Oliver failed to raise the specific argument concerning th e timing of th e malicious woun ding offense at trial. We agree. Accordingly, his ap pellate cont ention is procedurally barred pu rsuant to Rule 5A:18, unless he has shown "good cause" or that the "ends of justic e" require our review. 1 While Oliver has not sh own "good cause, " we find that Oliver has made an affirmat ive showing that a miscarriage of justice has occurred in this matt er, as there is no ev idence in the record that Oliver committed a violation whic h would render his suspended sentence and probatio n subject to revocati on. Therefore, we consider Oliver's appe al under the "ends of justice" exception to Rule 5A:18. 2 " [U]nder Virginia la w, once a defendant receives a suspended sentence, a judge' s power to revoke the suspension of sentence and probation is govern ed 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,

- 3 -obviously confer upon trial courts 'w ide latitude ' and much 'discretion in matter s of suspension and probation . . . to provide a remedial tool . . . in the rehabi litation of criminals' and, to that end, 'should be libe rally cons trued.'" 4 Code § 19.2-306 provides as fo llows, in re levant 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 tr ial courts in revoking a suspended sent ence and probation, th e language of Code § 19.2-306 clearly sp ecifies the peri ods 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.

- 4 -amounting to cause for revocation must occur in orde r for a judge to properly revoke a suspended sentence. 5 Specific ally, the statute expres sly states that th e judge may revoke suspension of sentence and probation for any sufficie nt cause that "occurred at any time within" th e specified periods. 6 It logica lly follows then that "[g]en erally, where the suspension is co nditioned upon future good cond uct," as it was here, "the revocation of the suspension must be pr edicated upon a show ing of conduct which occurs subsequent to the imposition of the suspen ded sentence." 7 However, as the Commonwealth points out, "[d]eceit, untruthfulness and deception at the time of the sentencing are always grounds for revoki ng a suspende d sentence." 8 Moreover, "[t]here is 'sig nificant authority for the proposit ion that a trial court has th e discretion to revoke probation if information is discovered which, ha d it been known at th e time of sentencing, would have led the tr ial court to deny pr obation,'" if the information at issue was in some way misr epresented 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 - 5 -Nevertheless, although the record here indicates that the trial judge, at the time of sent encing, was unawar e of Oliver's pending charge s, 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 Oliv er. Indeed, as stated above, Oliver was sentenced immediately up on the trial court's acceptan ce of a plea agreement wh ich stipulated that both the Commonwealth and Oliver considered the agreed sentence appropriate un der the circum stances. Fu rthermore, since the same prosecutor represente d the Commonwe alth in both cases, the Commonwealth was clearly aware of the charges, which had been pending against Mo rris in the same jurisd iction for approximately two months, when the Commonweal th agreed that the sentence was appropriate. Ac cordingly, the Commonwealth 's fraud argument lacks merit on its face. 10 We find that the trial ju dge erred in considering the offenses that oc curred prior to sentencing as a basis to revoke Oliver's suspended sent ence and probation. Thus, we reverse and remand with dire ctions to the tr ial court to vaca te 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.").

- 6 -revoking Oliver's su spended senten ce and probation, and to reinstate the same. Reversed and remanded.

- 7 -