Tyrone Jerrod Pettiford v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: November 24, 1998
• Docket: 2770972
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

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

TYRONE JERROD PETTIFORD MEMORANDUM OPINION * BY v. Record No. 2770-97-2 JUDGE RICHARD S. BRAY NOVEMBER 24, 1998 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND James B. Wilkinson, Judge Susan D. Hansen, Deputy Public Defender (David J. Johnson, Public Defender, on brief), for appellant.

Eugene Murphy, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

On April 16, 1997, Tyrone Jerrod Pettiford (defendant) was

convicted of carrying a concealed weapon and sentenced to five

years imprisonment, all suspended subject to supervised probation

with attendant terms and conditions. Upon the Commonwealth's

motion, the trial court subsequently ordered defendant "to show

cause why the suspended sentence . . . should not be revoked" as

a result of alleged violations of probation, including

defendant's failure to "obey all . . . laws and ordinances." At

a related hearing, the court found that defendant had violated

"conditions of . . . supervision," and revoked a portion of the

suspended sentence. Defendant appeals, complaining that the

court acted without proper evidence to support the order. * Pursuant to Code § 17-116.010 this opinion is not designated for publication. Finding no error, we affirm the order.

The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to

disposition of the appeal.

During the show cause hearing, the attorney for the

Commonwealth represented to the court that defendant had been

"convicted of trespassing, obstruction of justice, assault and

battery, and . . . [had] absconded from probation," since the

imposition of the suspended sentence. In response, defendant's

counsel conceded that defendant had been convicted of trespass

and assault and battery and explained that the offenses arose

from disputes related to visitation with his son. Counsel

acknowledged that, "once [defendant] had those convictions, . . .

he wasn't seeing [his] probation officer . . . [for fear] of

being violated." It is well established that "probation revocation hearings

are not a stage of criminal prosecution and therefore . . .

'formal procedures and rules of evidence are not employed'

. . . . [T]he process of revocation hearings 'should be flexible

enough to consider evidence . . . that would not be admissible in

an adversary criminal trial.'" Davis v. Commonwealth, 12 Va.

App. 81, 84, 402 S.E.2d 684, 686 (1991) (citations omitted).

"[W]hether to revoke the suspension of a sentence lies within the

sound discretion of the trial court." Singleton v. Commonwealth,

11 Va. App. 575, 580, 400 S.E.2d 205, 208 (1991); see Code

- 2 - § 19.2-306. "However, the trial judge may only revoke the

suspension of a sentence for reasonable cause." Preston v.

Commonwealth, 14 Va. App. 731, 733, 419 S.E.2d 288, 290 (1992)

(citation omitted).

Here, the Commonwealth, without objection, advised the court

of those misdemeanor convictions which had prompted the instant

revocation proceedings. Immediately thereafter, defense counsel

admitted to the alleged trespass and assault and battery offenses

and explained the underlying circumstances to mitigate the

misconduct. Thus, violations of law contrary to express

conditions of probation were uncontroverted and clearly before

the court. Manifestly, "[a] [c]onviction for a misdemeanor that

occurred during the probationary period, . . . is reasonable

cause to revoke . . . a suspended sentence." Hess v.

Commonwealth, 17 Va. App. 738, 741, 441 S.E.2d 29, 31 (1994).

Accordingly, we find no abuse of discretion by the trial

court and affirm the disputed order. Affirmed.

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