COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Ke lsey and Senior Judge Bumgardner Argued at Chesapeake, Virginia

CEDRICK LYDELL FORD MEMORANDUM OPINION * BY v. Record No. 3157-05-1 J UDGE RUDOLPH BUMGARDNER, III MARCH 20, 2007 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Wilford Taylor, Jr., Judge John E. Robins, Jr. (Office of the Public Defender, on briefs), for appellant. Joshua M. Didlake, Assistan t Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Cedrick Lydell Ford appeals the revocation of a suspended sentence. He contends he could not have violated probation because he committed no act that violated the terms of probation after an earlier revocati on hearing. We affirm the decision of the trial court because the defendant agreed to the proc edure the trial court adopted. On August 29, 2002, th e trial court convicted the defendan t of two counts of grand larceny and one count of fals e pretenses. It sentenced him to two years on each count, suspended one year on one count of grand lar ceny, and suspended the en tire sentence on the remain ing counts. The trial court placed the defendant on superv ised probation fo r three years. On May 7, 2004, the trial court held the first revocatio n hearing. The Commonwealth charged that the defendan t had failed to report, changed his a ddress without permission, left the Commonwealth without perm ission, and absconded fr om supervision. The trial court found the

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - defendant had violated his proba tion on those grounds and revoked the suspended sentences. It resuspended the entire sentence on the condition of good beha vior, but extended supervised probation until Au gust 2008. The defendant had drug charges pending in fede ral court in New York when the trial court held the first revocation hearin g. The defendant an d the Commonwealth ag reed those charges would not be considered at that revocation hearing. They further agreed th at if the defendant was subsequently convicted in New York, the conviction could be c onsidered at a subsequent revocation hearing. 1 On November 4, 2004, the defendant pleaded guilty in the U.S. District Court in New York to conspiracy to distribute and possession with inte nt to distribute at least fifty grams of crack cocaine. Those convictions were th e basis of the second revocation hearing held Dece mber 1, 2005, during which the trial court found the convictions we re a violation of the defendant’s probation. The trial court revoked the suspended sentences, imposed two years to serve, and resuspended the balance of the sentences. The defendant appeals th at decision, maintaining the trial court could not revoke his suspended sentences because he comm itted the New York offenses before his first revocation hearing on May 7, 2004. The record is clear that the first revocation hearing did not involve any allegation that the defendant committed any criminal offense after being placed on probation. The trial court specifically found that the Common wealth did not allege or pres ent evidence of the New York charges, and the trial court did not co nsider them at the first hearing.

1 The transcript of the May 7, 2004 revocation hearing is not in the record, nor does it contain any written agreement that conviction of the New York charges could serve as a basis for a subsequent revocation hearing. However, at the subsequent revocation hearing, the probation officer testified about the basis of the first hearing a nd the agreement to consider the New York charges only if there was a c onviction. The defendant neither objected to nor disputed the testimony.- 3 - The defendant agreed to the very procedure of which he complains on appeal. At the first revocation hearing, the defendant agreed that the existe nce of the pending New York charges would not be considered. If he was actually convicte d of the New York charges, the convictions could then be the basis of a subsequent revocation hearing. “A party may not invite error and subsequently raise that error as grou nds for appeal.” Batts v. Commonwealth , 30 Va. App. 1, 11, 515 S.E.2d 307, 312 (1999). The trial court could have considered the fact of the New York char ges without waiting to see whether they resulted in convictions. See Slayton v. Commonwealth , 185 Va. 357, 366, 38 S.E.2d 479, 483 (1946). The defenda nt obtained favorable treatme nt from the Commonwealth by deferring any considera tion of the New York ch arges until and unless he was actually convicted of them. If the trial court had consid ered the New York charges at the first hearing, Code § 19.2-306(D) would apply. It states: If any court has, after he aring, found no cause to impose a sentence that might have been or iginally imposed, or to revoke a suspended sentence or probation, then any further hearing to impose a sentence or revoke a su spended sentence or probation, based solely on the alleged viol ation for which the hearing was held, shall be barred. However, the trial court did not consider the New York charges, and Code § 19.2-306(D) does not bar later considerat ion of that not prev iously considered. The defendant waived the obj ection he makes on th is appeal by agreeing to the procedure the trial court followed . Accordingly, we affirm the revocation. Affirmed.