COURT OF APPEAL S OF VIRGINIA

Present: Judg e Bray, Senior Judges Duff and Overton Argued at Alex andria, Virginia

EDWARD T. RE SIO, S/K/A EDWARD THOMAS RESIO OPINION BY v. Record No. 2287-97-4 JUDGE RICHAR D S. BRAY APRIL 27, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF STAFFORD COUNTY J. Peyton Fa rmer, Judge Gail Starling Marshall for appellant. Kathleen B. Martin, Assist ant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Edward T. Resio (d efendant) appe als an order of the trial court revoking previous ly suspended se ntences. Defe ndant contends the trial court erred because two of the three felo ny convictions that supported the revo cation proceedings were later reve rsed by this Court. We af firm the revocation order but re verse the related senten ce and remand to the trial court.

I. On June 19, 1979 , defendant was convicted of rape and burglary and sentence d to a total of sixt y years impr isonment, with forty years suspen ded, conditioned upon fifteen year s “active supervised probation an d that he keep the pe ace and be of good behavior for the balanc e of his life.” On November 9, 1989,defendant was rele ased from inca rceration to parole, which he successfully completed on May 1, 1991, foll owed by supervised probation. While on probation, defendant wa s convicted fo r “abduction with the intent to se xually molest” (abduc tion) and “s tatutory burglary with th e intent to rape ” (burglary) and was sentenced on April 8, 1997, to fort y-two years in the peni tentiary. Defendant had previously pl ed guilty to a felonious firearm offens e arising from his arrest on the burglary and ab duction charges and sentenced to five years in prison, with four years suspended, pursuant to a pl ea agreement. Following the th ree felony convictions, a probatio n official notified the local Co mmonwealth’s Attorney that defendant had failed “‘to obey all Municipal, County, Stat e, and Federal laws and ordinances ,’” a violatio n of “condition #1” of probation, and recommended th at he “be returned to court for a . . . [related] hearing.” Accordingly, on motion of the Co mmonwealth, the trial court ordered de fendant to “show cause . . . why th e remaining forty (40) years of th e suspended sent ence . . . imposed on June 19, 1979, should not be revoked.” The re lated revocati on hearing was conducted on Septem ber 9, 1997, and defend ant 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 prov e the offenses. Defend ant acknowle dged his

- 2 -probationary status an d the three convictions. 1 However, he advised the court that, although he had pursued no appeal of the firearm offens e, appeals of the abductio n and burglary convictions were pending before th is Court and “g oing along real good . . . for a new trial.” No further evid ence was presente d 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.

- 3 -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 br oad discretion in making such a determination.” Patterson v. Commonwealth , 12 Va. App. 1046, 1048, 407 S.E.2d 43, 44 (1991) (c itations omitted) . “To put the

- 4 -matter another way, th e sufficiency of the evidence to sustain . . . revocation is a matter within the sound discreti on of the trial court, . . . reve rsible only upon a clear showin g 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 ques tion that ‘[a] cour t which has ordered a suspension of sent ence undoubtedly has the power to revoke it when the defendant has failed to comply with the conditio ns of the suspension.” Russnak v. Commonwealth , 10 Va. App. 317, 321, 392 S.E.2d 491, 493 (1990) (citation omitted). Howeve r, “[t]here is no requirement . . . that the suspension [of sentence ] may be revoked only upon th e 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 beha vior is a condition of every susp ension, with or without probat ion, whether expressly so stat ed or not.” Marshall v. Commonwealth , 202 Va. 217, 220, 116 S.E.2d 270, 273 (1 960). Thus, “[i] t seems entirely clear that . . . substantial mi sconduct . . . would provide reasonable cause for revocati on of the su spension.” Id. at 220-21, 116 S.E.2d at 273-74. Manifestly , evidence that “the trier of fact in a cr iminal proceeding foun d beyond a reasonable doubt that [a] defendan t violated a state law is sufficient . . . to support” revocation of a suspende d sentence, no twithstanding

- 5 -the pendency of such conviction on appeal. Patterson , 12 Va. App. at 1049, 407 S. E.2d at 45. When the record fail s to disclose precisel y “upon what ground the [court] revoke d the suspension [,] . . . [t]he presumption is that it was upon a va lid finding that the [defendant ] had in some manner violated th e conditions of th e suspensi on.” Slayton , 185 Va. at 369, 38 S.E.2d at 485 (citatio n omitted). Ho wever, should the Commonwealth elect to rely so lely upon a crim inal conviction, without evidence of the relate d conduct, to establish the reasonable cause necess ary to revocation, the “bare fact” of such conviction clearly beco mes the basis fo r the revocati on order. See Preston v. Commonwealth , 14 Va. App. 731, 734-35, 41 9 S.E.2d 288, 291 (1992). As a consequence, the fate of the “u nderlying conviction will dete rmine the outcom e of [an] ap peal of the revocation proceeding.” Patterson , 12 Va. App. at 1049, 407 S.E.2d at 45. Should the predicate conviction be reversed or otherwise upse t, the solely dependent re vocation order is left without support in the evidence and su bject 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 su pported by evidence of acts which establish th at defendant enga ged in sufficie ntly egregious misconduct will surv ive the failur e of any rela ted criminal conviction. See Marshall , 202 Va. at 221, 11 6 S.E.2d at 274.

- 6 -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,

- 7 -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.

- 8 - 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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