Edwood C. Spencer v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: December 27, 2007
• Docket: 3086064
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Senior Judges Willis and Annunziata Argued at Alexandria, Virginia

EDWOOD C. SPENCER MEMORANDUM OPINION * BY v. Record No. 3086-06-4 JUDGE JERE M.H. WILLIS, JR. DECEMBER 27, 2007 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Stanley P. Klein, Judge

Karin Kissiah, Assistant Public Defender, for appellant.

Leah A. Darron, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

On appeal from the revocation of his probation and suspension of sentence, Edwood C.

Spencer presents one question: “Under the Fourteenth Amendment of the United States

Constitution, is a Probationer’s liberty interest to be free from anti-psychotic drugs violated when

the Court requires the consumption of anti-psychotic medication as a condition of probation without

first determining that the Probationer is a danger to himself or others?” The record reveals that

Spencer violated the terms of his suspended sentence and probation on two grounds, one of which

does not involve the question presented. Therefore, we affirm without reaching the question

presented.

In February 2004, Spencer was convicted of violating Code § 18.2-154. He was sentenced

to a term of incarceration followed by a period of suspension and probation requiring mental health

treatment. In September 2004 and again in April 2006, he violated the terms of his suspended

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. sentence and probation. At the hearing on the April 2006 violation, he objected to the requirement

that he take medication to treat his mental illness. The trial court held that the conditions of

suspension and probation did not violate Spencer’s constitutional rights. We affirmed, holding that

“competent and substantial evidence exists in the record to support other charged violations . . . .”

Spencer v. Commonwealth, Record No. 1763-06-4 (Va. Ct. App. Aug. 7, 2007).

In September 2006, the probation officer reported that Spencer had again violated the terms

of his probation and suspension of sentence by refusing to take his medication and by threatening

the trial judge, stating that the judge “was going to burn in hell soon.” At the subsequent violation

hearing, the trial court made the following findings:

And I further find that he’s in violation of the terms of his probation for two reasons. His statement about the Court is contemptuous, and he’s made clear that he has no intention of taking the medication which his statements show he needs and the history of this case absolutely prove that he needs.

By order entered December 11, 2006, the trial court revoked the suspension of Spencer’s sentence

and sentenced him to serve the remainder of the sentence. This appeal followed.

After suspending a sentence, a trial court “may revoke the suspension of sentence for any

cause the court deems sufficient that occurred at any time within the probation period, or within

the period of suspension fixed by the court.” Code § 19.2-306(A). In revocation appeals, the

trial court’s “‘findings of fact and judgment will not be reversed unless there is a clear showing

of abuse of discretion.’” Keselica v. Commonwealth, 34 Va. App. 31, 35, 537 S.E.2d 611, 613

(2000) (quoting Davis v. Commonwealth, 12 Va. App. 81, 86, 402 S.E.2d 684, 687 (1991)). The

trial court “‘undoubtedly has the power to revoke [the suspension of a sentence] 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) (quoting Griffin v.

Cunningham, 205 Va. 349, 354, 136 S.E.2d 840, 844 (1964)).

-2- The trial court revoked Spencer’s suspended sentence and probation on two grounds. On

appeal, Spencer contests only one of those grounds. His failure to address alternative grounds for

the trial court’s decision waives further appellate review of that decision, assuming the alternative

ground is legally capable of supporting the decision. See Johnson v. Commonwealth, 45 Va. App.

113, 116-17, 609 S.E.2d 58, 60 (2005).

Assuming arguendo that we were to find fault with the trial court’s ruling on the

medication-based ground for revocation, the threat-based ground remains. On appeal, Spencer does

not contest that ground. That ground, standing alone, is legally sufficient to support the revocation

and does not reflect an abuse of discretion. Therefore, we affirm the judgment of the trial court on

that basis and decline to discuss the question presented by Spencer.

Affirmed.

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