COURT OF APPEALS OF VIRGINIA 

Present: Judge Bray, Senior Judges Duff and Overton 

Argued at Alexandria, Virginia 

EDWARD T. RESIO, S/K/A 

 EDWARD THOMAS RESIO 

 OPINION BY 

v. Record No. 2287-97-4 JUDGE RICHARD S. BRAY 

 APRIL 27, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF STAFFORD COUNTY 

J. Peyton Farmer, Judge 

Gail Starling Marshall for appellant. 

Kathleen B. Martin, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Edward T. Resio (defendant) appeals an order of the trial 

court revoking previously suspended sentences. Defendant contends 

the trial court erred because two of the three felony convictions 

that supported the revocation proceedings were later reversed by 

this Court. We affirm the revocation order but reverse the 

related sentence and remand to the trial court. 

I. 

 On June 19, 1979, defendant was convicted of rape and 

burglary and sentenced to a total of sixty years imprisonment, 

with forty years suspended, conditioned upon fifteen years “active 

supervised probation and that he keep the peace and be of good 

behavior for the balance of his life.” On November 9, 1989, 
defendant was released from incarceration to parole, which he 

successfully completed on May 1, 1991, followed by supervised 

probation. 

 While on probation, defendant was convicted for “abduction 

with the intent to sexually molest” (abduction) and “statutory 

burglary with the intent to rape” (burglary) and was sentenced on 

April 8, 1997, to forty-two years in the penitentiary. Defendant 

had previously pled guilty to a felonious firearm offense arising 

from his arrest on the burglary and abduction charges and 

sentenced to five years in prison, with four years suspended, 

pursuant to a plea agreement. 

 Following the three felony convictions, a probation official 

notified the local Commonwealth’s Attorney that defendant had 

failed “‘to obey all Municipal, County, State, and Federal laws 

and ordinances,’” a violation of “condition #1” of probation, and 

recommended that he “be returned to court for a . . . [related] 

hearing.” Accordingly, on motion of the Commonwealth, the trial 

court ordered defendant to “show cause . . . why the remaining 

forty (40) years of the suspended sentence . . . imposed on June 

19, 1979, should not be revoked.” The related revocation hearing 

was conducted on September 9, 1997, and defendant appeared before 

the trial court, represented by counsel. 

 Relying solely upon the three felony convictions as the basis 

of the show cause, the Commonwealth introduced the attendant 

orders to prove the offenses. Defendant acknowledged his 

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probationary status and the three convictions.1 However, he 

advised the court that, although he had pursued no appeal of the 

firearm offense, appeals of the abduction and burglary convictions 

were pending before this Court and “going along real good . . . 

for a new trial.” No further evidence was presented to the court. 

 At the conclusion of the hearing, the Commonwealth argued 

that the “seriousness of the offenses” suggested a “pattern in 

. . . defendant’s conduct” which “will once again endanger 

people” if he is permitted “to walk a free man in society for 

the rest of his life.” In response, defendant’s counsel 

recognized that the court “can consider [all] convictions” but 

“ask[ed] the court to also consider that . . . the most serious 

convictions are on appeal.” 

 The court found “from the evidence that [defendant had] 

violated the terms of [his] suspended sentence in that [he had] 

not kept the peace and been of good behavior.” Before 

pronouncing sentence, the trial judge admonished defendant: 

You have a felony [firearm] conviction, 

which is not on appeal, and you have two 

convictions, which are on appeal. The Court 

considers them, understanding that they 

could be reversed. But still, you have not 

complied with the terms of your suspended 

sentences. 

The previously suspended 1979 sentences were then revoked, and 

the court imposed the entire suspended portion, forty years. 

 1

 Defendant also admitted a DUI conviction not in issue. 

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The court’s “Sentencing Revocation Report” identified the 

abduction and burglary offenses as the “most serious new law 

violations,” noting also that defendant had wrongfully 

“possess[ed] [a] firearm.” The revocation order simply recited, 

“the court finds the defendant guilty of Violation of Probation” 

and imposed sentence. 

 Defendant subsequently appealed the order to this Court 

and, while his petition was pending before us, we reversed the 

abduction and burglary convictions that were before the trial 

court at the time of the revocation proceeding. Several days 

thereafter, we granted defendant’s petition for appeal of the 

instant order. Defendant now argues that the “revocation 

relie[d] in whole or in substantial part on . . . criminal 

conviction[s] . . . overturned on appeal” and, therefore, must 

also be reversed. 

II. 

 Code § 19.2-306 provides, in pertinent part, that “[t]he 

court may, for any cause deemed by it sufficient which occurred 

at any time within the probation period, . . . 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.” “A revocation . . . must be based on 

reasonable cause but a court has broad discretion in making such a 

determination.” Patterson v. Commonwealth, 12 Va. App. 1046, 

1048, 407 S.E.2d 43, 44 (1991) (citations omitted). “To put the 

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matter another way, the sufficiency of the evidence to sustain 

. . . revocation is a matter within the sound discretion of the 

trial court, . . . reversible only upon a clear showing of an 

abuse of such discretion.” Slayton v. Commonwealth, 185 Va. 357, 

367, 38 S.E.2d 479, 484 (1946); see Holden v. Commonwealth, 27 Va. 

App. 38, 41, 497 S.E.2d 492, 493 (1998). 

 “It is beyond question that ‘[a] court which has ordered a 

suspension of sentence undoubtedly has the power to revoke it when 

the defendant has failed to comply with the conditions of the 

suspension.” Russnak v. Commonwealth, 10 Va. App. 317, 321, 392 

S.E.2d 491, 493 (1990) (citation omitted). However, “[t]here is 

no requirement . . . that the suspension [of sentence] may be 

revoked only upon the conviction of a subsequent criminal 

offense.” Slayton, 185 Va. at 365, 38 S.E.2d at 483; see Holden, 

27 Va. App. at 42-43, 497 S.E.2d at 494. “[G]ood behavior is a 

condition of every suspension, with or without probation, whether 

expressly so stated or not.” Marshall v. Commonwealth, 202 Va. 

217, 220, 116 S.E.2d 270, 273 (1960). Thus, “[i]t seems entirely 

clear that . . . substantial misconduct . . . would provide 

reasonable cause for revocation of the suspension.” Id. at 

220-21, 116 S.E.2d at 273-74. Manifestly, evidence that “the 

trier of fact in a criminal proceeding found beyond a reasonable 

doubt that [a] defendant violated a state law is sufficient . . . 

to support” revocation of a suspended sentence, notwithstanding 

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the pendency of such conviction on appeal. Patterson, 12 Va. App. 

at 1049, 407 S.E.2d at 45. 

 When the record fails to disclose precisely “upon what ground 

the [court] revoked the suspension[,] . . . [t]he presumption is 

that it was upon a valid finding that the [defendant] had in some 

manner violated the conditions of the suspension.” Slayton, 185 

Va. at 369, 38 S.E.2d at 485 (citation omitted). However, should 

the Commonwealth elect to rely solely upon a criminal conviction, 

without evidence of the related conduct, to establish the 

reasonable cause necessary to revocation, the “bare fact” of such 

conviction clearly becomes the basis for the revocation order. 

See Preston v. Commonwealth, 14 Va. App. 731, 734-35, 419 S.E.2d 

288, 291 (1992). As a consequence, the fate of the “underlying 

conviction will determine the outcome of [an] appeal of the 

revocation proceeding.” Patterson, 12 Va. App. at 1049, 407 

S.E.2d at 45. Should the predicate conviction be reversed or 

otherwise upset, the solely dependent revocation order is left 

without support in the evidence and subject to a challenge 

appropriate to its then existing status. See id. at 1049-50, 407 

S.E.2d at 45; Preston, 14 Va. App. at 734-35, 419 S.E.2d at 291.2 

 2

 In contrast, a revocation supported by evidence of acts 

which establish that defendant engaged in sufficiently egregious 

misconduct will survive the failure of any related criminal 

conviction. See Marshall, 202 Va. at 221, 116 S.E.2d at 274. 

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 Here, the petition initiating the revocation proceedings 

and the resulting order relied exclusively upon convictions for 

felonious possession of a firearm, abduction, and burglary. 

Although the abduction and burglary convictions were then on 

appeal, the trial court considered each, “understanding that 

they could be reversed,” noting, in obvious reference to the 

firearm conviction, “[b]ut still [defendant has] not complied

with the terms of [his] suspended sentence.” (Emphasis added). 

Defendant does not dispute that the firearm offense, standing 

alone, constituted sufficient evidence to support revocation of 

the suspended sentences. Thus, notwithstanding the 

post-revocation reversal of the abduction and burglary 

convictions, “any [resulting] error was harmless since there 

were other sufficient causes,” expressly recognized by the 

court, prompting the decision “to revoke the suspended sentences 

and probation.” Davis v. Commonwealth, 12 Va. App. 81, 86, 402 

S.E.2d 684, 688 (1991). 

 However, the error that the later reversals visited upon 

the revocations also infected the attendant sentence and our 

resolution of that issue is more problematic. “[U]nless ‘it 

[also] plainly appears from the record and the evidence given at 

the trial that’ the error did not affect the [sentence],” we 

must reverse such sentence. Lavinder v. Commonwealth, 12 Va. 

App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc) (citing 

Code § 8.01-678); see Hackney v. Commonwealth, 28 Va. App. 288, 

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296, 504 S.E.2d 385, 389 (1998) (en banc). “An error does not 

affect a verdict if a reviewing court can conclude, without 

usurping the [fact finder’s] function, that, had the error not 

occurred, the verdict would have been the same.” Lavinder, 12 

Va. App. at 1005, 407 S.E.2d at 911. “The effect of an error on 

a verdict varies widely [and] . . . [e]ach case must, therefore, 

be analyzed individually . . . .” Id. at 1009, 407 S.E.2d at 

913. 

 The instant record discloses that the trial court expressly 

considered the abduction and burglary convictions, albeit with 

an understanding that both were pending on appeal. The court 

identified the convictions as the “most serious new law 

violations” in the “Sentencing Revocation Report,” while 

relegating the firearm offense to a notation. In urging the 

court to imprison defendant “for the rest of his life,” the 

Commonwealth relied upon the “pattern” of defendant’s criminal 

conduct evinced by the recent abduction and burglary convictions 

following the 1979 convictions for rape and burglary. Also 

significant, in revoking the suspended sentences, the court 

imposed the entire forty years.3 Under such circumstances, we 

are unable to conclude that the sentence was unaffected by 

consideration of the reversed convictions. 

 

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3

 While we do not suggest that this result would have been 

inappropriate upon evidence of only the firearm conviction, we 

are unable to project that outcome without improperly 

speculating upon the trial court. 
 Accordingly, we affirm revocation of the suspended 

sentences but remand the proceedings for resentencing by the 

trial court consistent with this opinion. 

 Affirmed in part,

reversed in part,

and remanded.

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