Garfield B. Johnson v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: December 15, 1998
• Docket: 1655972
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Bray Argued at Richmond, Virginia

GARFIELD B. JOHNSON MEMORANDUM OPINION * BY v. Record No. 1655-97-2 JUDGE JAMES W. BENTON, JR. DECEMBER 15, 1998 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PRINCE EDWARD COUNTY Richard S. Blanton, Judge Michael J. Brickhill for appellant.

Michael T. Judge, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

This appeal arises from a proceeding commenced after

Garfield Johnson pled guilty on March 17, 1997 to possessing with

the intent to distribute cocaine. Before the trial judge

sentenced Johnson pursuant to that plea, Johnson moved to

withdraw his guilty plea. The trial judge denied Johnson's

motion to withdraw his plea, found him guilty, and sentenced him

to prison. Johnson's appeal from that conviction order has been

affirmed by this Court today in Johnson v. Commonwealth, Record No. 1587-97-2.

After the trial judge sentenced Johnson pursuant to

Johnson's March 17, 1997 guilty plea, the trial judge revoked two

previously suspended sentences resulting from Johnson's

convictions in 1996. On this appeal, Johnson contends that the * Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. trial judge erred in revoking the previously suspended sentences.

For the reasons that follow, we affirm the judgment.

I.

In 1996, Garfield Johnson pled guilty to possessing with the

intent to distribute cocaine, see Code § 18.2-248, and possession

of a firearm while in possession of cocaine, see Code

§ 18.2-308.4. The trial judge found Johnson guilty of both

charges and sentenced him to five years in prison for the cocaine

offense, with three years and eight months suspended, and to five

years in prison on the firearms offense, with all five years

suspended. The suspended sentences were conditioned on Johnson's

"be[ing] of good behavior for a period of ten (10) years from the

date of his release from incarceration . . . [and] pay[ing] all

court costs." The trial judge also "placed [Johnson] on

supervised probation . . . for a period of ten (10) years from

the date of his release from incarceration." Four months after Johnson was released from prison, he was

again arrested and pled guilty on March 17, 1997 to possessing

with the intent to distribute cocaine. After the trial judge

denied Johnson's motion to withdraw his guilty plea, the trial

judge sentenced Johnson to a term of years in prison. The trial

judge then revoked the eight years and eight months that had been

suspended from Johnson's 1996 convictions.

II.

A trial judge "may, for any cause deemed by [him or her]

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period, . . . revoke the suspension of sentence." Code

§ 19.2-306. "The question of whether to revoke the suspension of

a sentence lies within the sound discretion of the trial

[judge]." Singleton v. Commonwealth, 11 Va. App. 575, 580, 400

S.E.2d 205, 208 (1991). Absent "a clear showing of abuse of

discretion," we will not disturb the decision of the trial judge.

Davis v. Commonwealth, 12 Va. App. 81, 86, 402 S.E.2d 684, 687

(1991). A panel of this Court today affirmed Johnson's 1997

conviction for possessing with the intent to distribute cocaine.

See Johnson v. Commonwealth, Record No. 1587-97-2. Therefore,

the record clearly establishes that Johnson's conduct "during the

probationary period was inconsistent with the terms and

conditions of the probation and evidenced h[is] unwillingness to

avail h[im]self of the opportunity afforded by the court. Under

such circumstances, the judgment of the trial [judge] clearly

constituted no abuse of discretion." Connelly v. Commonwealth,

14 Va. App. 888, 890, 420 S.E.2d 244, 245 (1992). See also

Patterson v. Commonwealth, 12 Va. App. 1046, 1049, 407 S.E.2d 43,

45 (1991) ("The appeal of the underlying conviction will

determine the outcome of the appeal of the revocation

proceeding.").

Accordingly, we affirm the trial judge's decision.

Affirmed.

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