Thomas Arthur Chilton, Jr. v. Commonwealth of VA

• Court: Court of Appeals of Virginia
• Decided: August 28, 2001
• Docket: 1265002
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Willis and Bumgardner Argued at Richmond, Virginia

THOMAS ARTHUR CHILTON, JR. MEMORANDUM OPINION * BY v. Record No. 1265-00-2 JUDGE JAMES W. BENTON, JR. AUGUST 28, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Herbert C. Gill, Jr., Judge

Craig S. Cooley for appellant.

Donald E. Jeffrey, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

The sole issue raised by this appeal is whether the

appellant's suspended sentence was extant when the trial judge

revoked it and ordered him to prison. We hold that it was and

affirm the judgment.

I.

On October 4, 1990, Thomas A. Chilton, Jr. signed a plea

agreement, and he pled guilty to one count of forgery and to one

count of uttering. By order entered November 21, 1990, the trial

judge sentenced Chilton "on the charge of forgery, to . . . a term

of 10 years, with all suspended for 10 years upon the conditions

that [Chilton] serve 12 months in . . . jail" and "[o]n the charge

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. of uttering, . . . to . . . a term of 10 years, with all suspended

for 10 years." The order included as "conditions of the suspended

. . . sentences . . . that [Chilton] must keep the peace, be of

good behavior and obey all laws for a period of 10 years (each

charge)." In addition, the order "places [Chilton] on supervised

probation upon release from confinement." Several years later, in

a ruling that is not contested by this appeal, the trial judge

amended the sentencing order to delete the requirement of

"supervised probation upon release from confinement" and found

that this requirement "was not a part of [Chilton's] plea

agreement."

Following a hearing in April 1992, the trial judge found that

Chilton violated the conditions of his suspended sentence. The

judge entered an order on April 22, 1992 revoking "the previously

suspended sentence . . . on the charge of forgery," ruling that

"the previously suspended sentence on the charge of uttering

remain as previously imposed," and sentencing Chilton, "on the

charge of forgery, to confinement . . . for a term of 9 years."

Following hearings in April 2000 and May 2000, the trial judge

found that Chilton again violated the conditions of his suspended

sentence. The judge entered orders on May 19, 2000 which revoked

the previously suspended ten-year sentence on the charge of

uttering and "re-suspend[ed] 5 years [of that sentence], giving

[Chilton] 5 years to serve." This appeal followed from the entry

of the May 19, 2000 orders.

- 2 - II.

Chilton contends that his arrest in 1992 revoked his

suspended sentence on the uttering charge and that the trial judge

did not re-suspend the uttering sentence when he revoked Chilton's

forgery sentence. He argues that the judge's oral comments at the

1992 hearing are dispositive of his actual ruling and prove that

the judge did not re-suspend the uttering sentence. Therefore,

Chilton contends the trial judge erred by imposing a sentence on

the uttering charge on May 19, 2000.

Chilton relies on Code § 19.2-306 for his argument that his

arrest automatically revoked the suspended sentence on the

uttering conviction. In pertinent part, that statute states as

follows:

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 cause the defendant to be arrested . . . , whereupon, in case the imposition of sentence has been suspended, the court may pronounce whatever sentence might have been originally imposed.

The trial judge's Show Cause Order, which was the basis for

Chilton's arrest in February 1992, merely provided that Chilton

should "show cause why the suspended sentence previously imposed

should not be revoked." Whether or not Chilton's arrest revoked

the suspended sentence, the issue remains whether the trial

judge re-imposed it as the statute allows. The record

establishes that at the close of the 1992 hearing, the judge

- 3 - said: "The Court will revoke the balance of the 10 years that

it sentenced you on the forgery offense and require that you

pull the balance of that time in the penitentiary." Although

this comment does not mention the uttering charge, it also does

not indicate that the judge intended Chilton to be free of the

burden of the other suspended sentence.

More importantly, the express language of the trial judge's

1992 order directly contradicts Chilton's argument. The Supreme

Court has consistently "stated that '[i]t is the firmly

established law of this Commonwealth that a trial court speaks

only through its written orders.'" Walton v. Commonwealth, 256

Va. 85, 94, 501 S.E.2d 134, 140 (1998) (citation omitted). See

also Cunningham v. Smith, 205 Va. 205, 208, 135 S.E.2d 770, 773

(1964). Moreover, appellate courts "presume" that the trial

judge's order "accurately reflects what transpired." Stamper v.

Commonwealth, 220 Va. 260, 280-81, 257 S.E.2d 808, 822 (1979). In

view of the opportunity that attorneys are afforded to have orders

corrected, see id., and in the absence of an objection to an

order, we will apply "[t]his presumption . . . where an order

conflicts with a transcript of related proceedings." Marttila v.

City of Lynchburg, 33 Va. App. 592, 598, 535 S.E.2d 693, 696

(2000).

The record establishes that the April 22, 1992 order contains

the judge's explicit ruling "that the previously suspended

sentence on the charge of uttering remain as previously imposed."

- 4 - Thus, Chilton was subject to the conditions attendant to the

suspension of the uttering sentence when the Commonwealth alleged

he violated those conditions. We hold that the trial judge did

not err in entering orders on May 19, 2000 revoking the suspended

sentence on the uttering charge.

By reply brief, Chilton argues for the first time that the

April 22, 1992 order was not served on him and that he had a right

to notice and to be present "when an alteration or addition to his

sentence is made." At the hearing from which this appeal arises,

Chilton's trial attorney only argued "that when the plea bargain

was entered in this case . . . the 20 years was all handled

together . . . [and] that there is still no outstanding time on

the uttering charge." Because Chilton raised no issue at trial

concerning a right to be present or any other due process

concerns, we will not consider those issues on appeal. See Rule

5A:18.

For these reasons, we affirm the judgment.

Affirmed.

- 5 -