COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Felton, Judges Elder and Beales 

Argued at Chesapeake, Virginia 

WILLIAMS PATRICK PIERCE, II, S/K/A 

 PATRICK WILLIAM PIERCE, II 

 OPINION BY 

v. Record No. 1711-05-2 CHIEF JUDGE WALTER S. FELTON, JR. 

 AUGUST 29, 2006 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE 

Paul M. Peatross, Jr., Judge 

 Michael J. Hallahan, II, for appellant. 

 Virginia B. Theisen, Senior Assistant Attorney General (Robert F. 

McDonnell, Attorney General, on brief), for appellee. 

 Williams Patrick Pierce, II (“appellant”) appeals the November 2001 judgment of the 

trial court revoking his previously suspended sentences after finding that he violated the terms 

and conditions of his probation. He contends that the trial court erred in its judgment because 

1) the capias for his arrest for probation violations was invalid as it was based on the unsworn 

written statements of his probation officers; 2) the evidence was not sufficient to support 

issuance of the capias; 3) the probation revocation hearing was not held within the time 

limitations of Code § 19.2-306; and 4) that the court erred in ordering that his sentences run 

consecutively, rather than concurrently as provided in his original sentencing orders, and in 

failing to credit him with serving six months on one of his sentences after a previous probation 

violation. In January 2006, appellant was granted a delayed appeal. 
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BACKGROUND 

 Under familiar principles of appellate review, we examine the evidence in the light most 

favorable to the Commonwealth, the prevailing party in the trial court, granting to it all 

reasonable inferences fairly deducible therefrom. See Juares v. Commonwealth, 26 Va. App. 

154, 156, 493 S.E.2d 677, 678 (1997). 

So viewed, the record reflects that appellant was convicted in May 1987 following his 

pleas of guilty to two charges (indictment numbers 86-263-1 and 86-263-2) of obtaining money 

by false pretences from the University of Virginia. He was sentenced to twenty years 

imprisonment on each conviction, the sentences ordered to run concurrently. Thereafter, the 

court suspended fifteen years of each sentence, and ordered that appellant serve five years of 

each sentence, those sentences to be served concurrently. The fifteen-year suspended sentences 

were conditioned on appellant being of good behavior for ten years, with five years of supervised 

probation following his release from incarceration, and thereafter by five years of unsupervised 

probation. In addition, appellant was ordered to pay restitution of $58,581.37 at the rate of a 

minimum of $100 per month. 

Following his release from incarceration, appellant failed to pay restitution as ordered. In 

November 1990, he was found to have violated the terms and conditions of his probation, 

specifically failing to pay restitution. The trial court revoked both of his previously suspended 

sentences. It reimposed and then resuspended the entire fifteen-year sentence on indictment 

number 86-263-1. It also reimposed the fifteen-year sentence on indictment number 86-263-2, 

and then suspended fourteen years and six months. Appellant thereafter served the imposed six 

months incarceration in 1991. 

In August 1992, appellant requested transfer of his probation supervision to California 

pursuant to the Interstate Compact for the Supervision of Parolees and Probationers (“Interstate 
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Compact”). See Code § 53.1-176.2. His request was granted on the specific condition that he 

continue to be bound by Virginia’s probation restrictions. He acknowledged in writing that he 

would “when duly instructed by the Charlottesville Circuit Court return at any time to the state of 

Virginia.” As a further condition for the transfer of his probation supervision to California, he 

agreed to “waive extradition to the state of Virginia from any jurisdiction . . . where [he] may be 

found and also agree[d] that [he] [would] not contest any effort by any jurisdiction to return 

[him] to the state of Virginia.” Additionally, the period of his supervised probation was 

extended to December 20, 1994. 

Appellant’s probation was transferred to California in June 1993. While under 

California’s supervision of his probation, appellant failed to make regular restitution payments 

and to maintain regular contact with California probation authorities. In December 1994, a show 

cause order was issued by the Virginia trial court ordering appellant to “show cause, if any, why 

a probation violation hearing should not be scheduled.” In February 1995, after appellant failed 

to return to Virginia to answer the show cause, the trial court ordered a capias for his arrest. 

The capias remained outstanding until California authorities located appellant in 

September 1996, at which time he was arrested. Prior to his return to Virginia following his 

arrest, appellant was convicted of two counts of felony child molestation in California and served 

three-years imprisonment. Virginia authorities filed a detainer with California to retain custody 

of appellant on completion of his sentence so that he could be returned to Virginia to answer the 

probation violation charge. Notwithstanding the detainer, appellant was released from 

incarceration on the completion of his California sentence in May 1999. Appellant was again 

arrested on the Virginia capias in August 2000 and thereafter extradited to Virginia. He first 
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appeared before the trial court in Virginia that same month. He remained continuously 

incarcerated until his probation revocation hearing was held in September 2001.1

 At the September 2001 revocation hearing, appellant moved to dismiss the probation 

violation proceedings, arguing that the capias for his arrest was invalid because it was not based 

on probable cause and was issued on the unsworn written statements of probation officers in 

violation of the Fourth Amendment to the United States Constitution and Code § 19.2-72.2

 He 

also argued that the revocation hearing was not held within the time limitations of Code 

§ 19.2-306.3 The trial court denied appellant’s motion to dismiss and, following a hearing, found 

that he “willfully violated” the terms and conditions of his probation. 

The trial court revoked the suspended fifteen-year sentence on indictment number 

86-263-1, reimposed all fifteen years, and then resuspended thirteen years of that sentence, 

ordering appellant to serve two years imprisonment on that sentence. It also revoked the 

suspension of the fifteen-year sentence on indictment number 86-263-2, reimposed that sentence, 

and then resuspended all of that sentence. The trial court then ordered the two sentences to run 

 1

 Between August 2000 and September 2001, appellant twice requested and obtained 

substitution of counsel to defend him. The trial court also continued the revocation hearing from 

August 17, 2001 to September 13, 2001 to allow the Commonwealth to respond to appellant’s 

lengthy motion to dismiss. 

2

 The Fourth Amendment requires that “no warrants [of arrest] shall issue, but upon 

probable cause, supported by oath or affirmation . . . .” Code § 19.2-72 requires that “any officer 

authorized to issue criminal warrants . . . shall examine on oath the complainant . . . [to 

determine whether] there is probable cause to believe the accused has committed an offense.” 

3

 Code § 19.2-306, in effect at the time of these proceedings, required that a probation 

violator be arrested and brought before the trial court within one year after completion of his 

probation period. 
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consecutively, in contradiction to the May 1987 sentencing order, wherein appellant’s sentences 

of incarceration were ordered to run concurrently.

 4

 Appellant timely filed a notice of appeal in November 2001. His appeal was not timely 

perfected, but a delayed appeal was granted in January 2006. 

I. 

ISSUANCE OF THE CAPIAS 

Appellant contends that the trial court erred in denying his motion to dismiss the 

revocation proceeding. He argues that the capias on which he was arrested in California was 

invalid as it was not issued on statements, “supported by oath or affirmation,” as required by the 

Fourth Amendment and Code § 19.2-72. He also contends that the Commonwealth’s failure to 

call his California probation officer as a witness at the probation violation hearing prevented the 

trial court from “knowing the circumstances around whether or not [he] had paid the restitution” 

and that the evidence was insufficient to establish probable cause to issue the capias for his 

arrest. 

While the Fourth Amendment and Code § 19.2-72 require that an arrest warrant for an 

individual accused of violating the criminal law be based on sworn statements establishing 

probable cause, there is no such requirement imposed on the seizure of a probationer, previously 

convicted of a criminal offense, whose sentence to confinement has been suspended based on his 

failure to comply with specified terms and conditions of his probation. Code § 53.1-149. Code 

§ 53.1-149 provides, in pertinent part, that: 

 4

 The record is not clear whether the trial court intended the two reimposed sentences run 

consecutively with each other, or only consecutively with any other sentences appellant was to 

serve. 
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[a]ny probation officer appointed pursuant to this chapter may 

arrest a probationer without a warrant . . . by a written statement 

setting forth that the probationer has, in the judgment of the 

probation officer, violated one or more of the terms or conditions 

upon which the probationer was released on probation. 

In denying appellant’s motion to dismiss, the trial court noted it “would prefer that [the written 

statements containing allegations of the probation violations] be verified, but that it is not 

required by law and [the probation officer’s statement] is reliable enough for the Court to issue 

the capias.” We agree. 

We note that probation is, as was the case with appellant here, an act of grace on the part 

of the Commonwealth to one who has been convicted and sentenced to a term of confinement. 

As we have often stated, probation is remedial in nature, designed to give the sentenced person 

an opportunity to avoid the imposed incarceration while living under specified conditions of 

probation and, where required, paying restitution to the victims he has harmed. See McCullough 

v. Commonwealth, 38 Va. App. 811, 814, 568 S.E.2d 449, 450 (2002). See also Briggs v. 

Commonwealth, 21 Va. App. 338, 344, 464 S.E.2d 512, 514 (1995). In cases where the 

convicted individual fails to comply with terms and conditions of that probation, the probation 

officer is empowered to arrest him and to cause him to be confined and brought before the court 

to answer why his probation should not be revoked. Code § 53.1-149. See Miller v. 

Commonwealth, 25 Va. App. 727, 743-44, 492 S.E.2d 482, 491 (1997) (“The legislature 

granted . . . probation officer[s] supervisory responsibility for [a defendant’s] conduct and 

treatment during the course of his probation . . . including the responsibility for arresting him for 

a violation of his probation.”). While a revocation hearing is a criminal proceeding, it “is not a 

stage of a criminal prosecution, and thus does not afford a convict all rights attending a criminal 

prosecution.” Green v. Commonwealth, 263 Va. 191, 195-96, 557 S.E.2d 230, 233 (2002) 

(citing Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973)). 
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Here, Virginia probation officers provided written statements to the trial court requesting 

that it issue a show cause order to bring appellant before it. Appellant notified Virginia 

probation officers that he would not return to Virginia voluntarily to respond to the show cause 

order because he could not afford plane fare. Because appellant was in California, the Virginia 

probation officers lacked authority to arrest appellant in California for failing to comply with the 

show cause order. From the evidence before it, including the written statements5 from the 

Virginia probation officers supervising his probation and appellant’s failure to comply with the 

show cause order, the trial court determined that appellant was not in compliance with the terms 

and conditions of his probation and ordered a capias to issue for his arrest in California so that he 

could be returned to Virginia for a probation revocation hearing. 

On this record, we find no error in the trial court’s ruling that the evidence before it 

provided sufficient basis for it to issue a capias for appellant’s arrest in California and return to 

Virginia. 

II. 

COMPLIANCE WITH CODE § 19.2-306 

Appellant also argues that the trial court erred in denying his motion to dismiss the 

revocation hearing, contending it was held beyond the one-year limitation required by Code 

§ 19.2-306.6

 Code § 19.2-306, as in effect at the time relevant to these proceedings, provided 

that: 

 5

 From the written statements, the trial court could conclude that appellant had only 

limited contact with California probation authorities; that he had paid only $800 in restitution 

since June 1993 when his supervision was transferred to California; and that he still owed over 

$51,000 in restitution. 

6

 Code § 19.2-306 was substantially amended by the 2002 General Assembly. See 2002 

Va. Acts, ch. 628. 
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the 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 at any time within one year after the probation 

period. 

Id. (1978) (amended 2002) (emphasis added). Appellant asserts that his supervised probation 

ended on December 20, 1994 and, as a result, his September 16, 1996 arrest on the Virginia 

capias and August 10, 2000 appearance in the trial court were beyond the one-year statutory 

period required by Code § 19.2-306. We disagree. 

Appellant’s original May 1987 sentencing order required him to be on good behavior for 

ten years, with five years of supervised probation on his release from incarceration, followed by 

five years of unsupervised probation. In December 1992, at appellant’s request, his probation 

supervision was transferred to California pursuant to the Interstate Compact, conditioned on his 

continued compliance with the conditions of his probation, his agreement to return to Virginia 

when instructed by the trial court, and his agreement to waive extradition. Appellant’s 

supervised probation was also extended to December 20, 1994, followed by five years of 

unsupervised probation. 

When the trial court was informed in writing by probation authorities that appellant failed 

to make restitution on a regular basis and failed to maintain regular contact with California 

probation officials, it issued its show cause order on December 22, 1994 for appellant to appear 

on January 17, 1995 to show why a probation violation hearing should not be held. When 

appellant failed to comply with that order, a capias was issued on February 10, 1995 for his 

arrest and return to Virginia for a probation violation hearing. Appellant was eventually arrested 

on the Virginia capias in September 1996, within the five-year period he remained on probation 

after his supervised probation terminated in December 1994. 
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Prior to his return to Virginia, appellant was convicted of felony child molestation in 

California and served three years imprisonment there. Notwithstanding Virginia’s detainer, 

appellant was released from custody by California authorities at the completion of his felony 

sentences in May 1999. He was eventually arrested, extradited to Virginia, and appeared before 

the trial court on August 10, 2000 to answer for his probation violations. The trial court 

determined that the time provisions of Code § 19.2-306 regarding probation violation 

proceedings were tolled during appellant’s incarceration in California from September 1996 until 

May 1999, a period of some thirty-three months, when he was “beyond the jurisdiction and 

control” of the trial court in Virginia. Rease v. Commonwealth, 227 Va. 289, 295, 316 S.E.2d 

148, 151 (1984). Furthermore, “when [appellant], due to his own conduct, [was] no longer under 

such control and supervision, the act of grace in granting probation in the first place [was] 

rendered a nullity.” Id.

Because appellant’s probation was tolled while he was incarcerated in California, his 

probation extended to September 2002. When he appeared in the trial court in August 2000, the 

Commonwealth had effectively “arrested and brought [him] before the court” during his period 

of probation and within the time requirements of Code § 19.2-306. Id.

 Accordingly, the trial court did not err in denying appellant’s motion to dismiss the 

September 2001 revocation proceeding for failure to meet the time requirements of Code 

§ 19.2-306. 

III. 

SENTENCING ORDERS 

Appellant also contends that the trial court erred, following its revocation of his two 

previously suspended sentences, when it ordered that the two reimposed sentences be served 

consecutively, rather than concurrently as provided in the original sentencing order. He also 
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argues that the trial court erred in not crediting him with six months incarceration he previously 

served in 1991 on indictment number 86-263-2. 

Code § 19.2-308 requires that when a person is convicted and sentenced for two or more 

offenses, “such sentences shall not run concurrently, unless expressly ordered by the court.” 

Here, the May 1987 original sentencing order specifically provided that appellant’s two 

sentences run concurrently. However, the November 2001 sentencing order, “reimpos[ing] the 

sentences previously resuspended,” directed that “these sentences shall run consecutively with all 

the other sentences.” At that time, the trial court did not “have the right or power . . . after the 

[May 1987] order[] had become final, to change the sentences and require that two of them 

should run consecutively.” Conner v. Commonwealth, 207 Va. 455, 457, 150 S.E.2d 478, 479 

(1966) (citations omitted). See also Wood v. Commonwealth, 12 Va. App. 1257, 408 S.E.2d 568 

(1991). 

The record further reflects that, in its November 2001 sentencing order, the trial court 

erred in resentencing appellant to fifteen years incarceration on indictment number 86-263-2 

when only fourteen years and six months remained on that sentence following appellant’s service 

of six months incarceration in 1991. It also erred in reimposing a total sentence of thirty years, 

when only twenty-nine years and six months remained after crediting appellant with the six 

months previously served. The Commonwealth concedes the trial court’s error in its sentencing 

order and requests that we remand the case to the trial court solely to correct that order. 

We find that the trial court erred in its November 2001 order sentencing appellant to 

serve consecutive, rather than concurrent, sentences of incarceration and in failing to credit 

appellant for six months of active incarceration he previously served on indictment number 

86-263-2, and remand to the trial court solely to correct its sentencing order, consistent with this 

opinion. 
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CONCLUSION 

 We conclude that the trial court did not err in denying appellant’s motion to dismiss the 

revocation proceedings. We affirm the trial court’s ruling 1) that the capias for appellant’s arrest 

in California was validly issued and based on sufficient evidence; and 2) that the probation 

revocation hearing was held within the time frame provided by Code § 19.2-306. 

 However, the trial court erred in ordering that appellant’s reimposed sentences be served 

consecutively, rather than concurrently as was provided in the May 1987 sentencing order, and in 

failing to credit appellant with six months incarceration previously served in 1991 on indictment 

number 86-263-2. 

 Accordingly, we affirm the judgment of the trial court finding that appellant violated the 

terms and conditions of his probation and revoking his previously suspended sentences. 

However, we remand to the trial court solely to correct its sentencing orders consistent with this 

opinion. 

 Affirmed in part, reversed in part, and remanded.