WORD v. COMMONWEALTH




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revision. If you find a typographical error or other formal error, please notify
the Virginia Court of Appeals.


WORD

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Senior Judge Coleman

Argued at Richmond, Virginia

Record No. 0097-02-2

VERLIE MARION WORD, JR.

v.

COMMONWEALTH of VIRGINIA

 

OPINION BY JUDGE SAM W. COLEMAN III

SEPTEMBER 16, 2003

FROM THE CIRCUIT COURT OF HALIFAX COUNTY

Leslie M. Osborn, Judge

Tracy L. Quackenbush (Law Office of W. W.

Bennett, Jr., P.C., on brief), for appellant.

Leah A. Darron, Assistant Attorney General

(Jerry W. Kilgore, Attorney General, on

brief), for appellee.

Verlie Marion Word, Jr., appeals the trial court’s order

revoking his suspended sentence contending that the court abused

its discretion by finding he violated a condition of probation.

He argues that he was unable, through no fault of his own, to

enter and successfully complete the Detention Center
Incarceration

Program (Program), to which the court had ordered him committed,

because the Program’s administrator arbitrarily refused to
accept

him after having previously recommended to the court that he be

permitted to participate.

From our reading of the trial court’s order, it is unclear

whether the trial court found Word to be in violation of a

condition of probation. What is clear from the record is the

court found it to be "an impossibility" for Word to
comply with

the condition of the suspended sentence that he enter and

successfully complete the Program because the Program would no

longer accept Word; thus, the court vacated that provision of
the

sentencing order which required that Word attend the Program.

Nevertheless, to the extent that the court may have found Word

violated a condition of probation, we find no evidence to
support

such a finding. Accordingly, we reverse the trial court’s

probation violation finding and remand the case to the trial
court

to vacate that portion of its order. We affirm, however, the

trial court’s revocation of a portion of Word’s suspended
sentence

based upon the court’s determination that it was "an

impossibility" for Word to satisfy that condition of his
suspended

sentence which required that he attend the Program, a
requirement

imposed as a prerequisite to suspending the sentence.

FACTS

The trial court convicted Word for the felonies of eluding a

police officer, two counts of driving after being declared an

habitual offender, and possession of cocaine and sentenced him
to

a total of nine years and twelve months confinement. Before

imposing sentence, the court ordered that Word be evaluated by
the

Program to determine his eligibility for participation as an

alternative to incarceration. The Program determined that Word

satisfied the criteria for acceptance and recommended him for
the

program.

Based on the Program’s recommendation, the trial court

ordered the following:

The Court SUSPENDS all of the (2) year

Elude Police Officer sentence, all but twelve

(12) months of the two (2) year Drive After

Declared Habitual Offender felony charge, all

of the twelve (12) month Drive After Declared

Habitual Offender misdemeanor sentence, and

all of the five (5) year Possess Schedule II

Controlled Substance – Cocaine sentence, for

a total suspension of eight (8) years, twelve

(12) months upon the following conditions:

Good Behavior: The defendant shall be of

good behavior for five (5) years from the

defendant’s release from confinement.

Community-based Corrections System Program:

The defendant shall enter and successfully

complete the Detention Center Program and

then the Diversion Center Program.

Supervised probation: The defendant is

placed on probation to commence today, under

the supervision of a Probation Officer for

(3) years, or unless sooner released by the

court or by the Probation Officer. The

defendant shall comply with all the rules

and requirements set by the Probation

Officer.

Thus, while Word was sentenced to serve twelve months active

incarceration, he was then to be successively confined in the

Detention Center Program and the Diversion Center Program.

Word served the active twelve-month sentence but was not

released or transferred to the Department of Corrections for

entry into Program as the court had ordered. Word filed a

motion that he be released because the sentencing order did not

require or authorize that he be further incarcerated awaiting

transfer into the Program. At the hearing on the motion, the

trial judge issued a capias to hold Word pending a show cause

hearing as to why his probation and suspended sentences should

not be revoked based on the Program administrator having now

determined that Word would not be accepted into the Program.

By way of proffer, the assistant Commonwealth’s attorney

represented that he had informed the Program that Word was being

investigated by federal authorities for two murders that
occurred

in 1993 and that indictments were likely to be forthcoming. The

Commonwealth’s attorney represented that he contacted the
Program

only out of a "concern for security" and to ensure
that Word was

no "flight risk." After being contacted by the
Commonwealth’s

attorney, the Program determined that Word would not be accepted

because of the likelihood that he would be arrested and would be

unable to complete the Program. A senior probation officer

notified the court by letter that the Program would not accept

Word "due to the ongoing criminal investigation."

The trial court denied Word’s motion to be released, ruling

that the court had intended that Word remain incarcerated until

he was transferred to the Program. During the show cause

portion of the hearing, the trial court ruled that Word’s entry

into the Program was a condition of his suspended sentence,

which had been imposed as an alternative to incarceration.

Thus, the trial court ruled that because entry into the Program

was now "an impossibility" Word was in violation of a
condition

of his suspended sentence. Because the sentencing order provided

for successive periods of confinement in the Detention Center

Program and the Diversion Center Program as an alternative to

incarceration and after Word served a twelve-month jail

sentence, the court revoked the suspended sentence and then

re-suspended all but 120 days of the sentence, effectively

imposing a 120-day jail sentence in lieu of confinement in the

two programs.

ANALYSIS

Revoking Suspended Sentences

"The law of Virginia distinguishes the suspension of a

sentence from the imposition of probation." Anderson v.

Commonwealth, 25 Va. App. 565, 572, 490 S.E.2d 274, 277 (1997)

(citing Grant v. Commonwealth, 223 Va. 680, 292 S.E.2d 348

(1982)), aff’d en banc, 26 Va. App. 535, 495 S.E.2d 547, aff’d,

256 Va. 580, 507 S.E.2d 339 (1998). "[S]entencing judges
must

be cognizant that probation and suspension of sentence are

separate and distinct concepts and that they may be fixed at

different intervals to accomplish different goals."
Carbaugh v.

Commonwealth, 19 Va. App. 119, 126, 449 S.E.2d 264, 268 (1994)

(citation omitted).

Suspending sentence is to delay either the execution of an

imposed sentence or the imposition of a sentence. See Code

? 19.2-303. A court may "suspend" all or a portion of
a

sentence or delay imposition of a sentence "under terms and

conditions which shall be entered in writing by the court."
Id.

Probation, on the other hand, refers to the continued

supervision by the court over the convicted offender and may be

either supervised or unsupervised but shall be "under such

conditions as the court shall determine." Id. Probation is

defined as "the action of suspending the sentence of a
convicted

offender in such a way that the offender is given freedom after

promising good behavior and agreeing to a varying degree of

supervision, to the usual imposed condition of making a report

to a particular officer or court at stated intervals, and to any

other additionally specified conditions." Webster’s Third
New

International Dictionary 1806 (1981). Black’s Law Dictionary

defines probation as "[a] court-imposed criminal sentence
that,

subject to stated conditions, releases a convicted person into

the community instead of sending the criminal to jail or

prison." Black’s Law Dictionary 1220 (7th ed. 1999).

A suspended sentence and probation are often coterminous

and usually augment one another in that probation and the

conditions imposed for probation are usually ordered to enable

the convicted offender to accomplish certain goals during the

term of a suspended sentence. "[While] the conditions
imposed

in probation and those imposed in the suspension of sentences

need not be analyzed in different contexts[, separate conditions

may be imposed as a prerequisite to suspending a sentence which

may be only tangentially related to the conditions of probation.

However,] [t]he common objective of such conditions is to

protect society and to promote rehabilitation of the
convict."

Anderson, 25 Va. App. at 572, 490 S.E.2d at 277.

Here, the trial court imposed a suspended sentence

conditioned upon Word (1) being of good behavior, (2) being on

supervised probation, and (3) completing the Program. The

court’s sentencing order provided that, after serving a period

of incarceration in jail, Word would be confined in the Program,

a residential program operated by the Department of Corrections

(Department) pursuant to Code ? 53.1-67.8.[1]
While entering and

successfully completing the Program may have been a condition of

probation, merely entering the Program was a prerequisite to and

one of the conditions upon which the nine-year sentence was

suspended. When the trial court sentenced Word for the various

non-violent felonies, the court clearly intended to impose, and

did impose, upon Word an additional term of confinement in a

regimented environment with a structured program between his

active incarceration and his release into the community. The

Program is for non-violent offenders, such as Word, who do not

qualify for the Boot Camp Incarceration Program pursuant to Code

? 19.2-316.1, but nevertheless require and would benefit from a

demanding structured program.

The Department conducted an evaluation to determine Word’s

suitability for the Program and recommended he be
"committed" to

the Program.[2]
However, prior to Word’s entry, the Program’s

administrator determined not to admit Word based upon the

Commonwealth’s attorney having informed him that Word was under

federal investigation for a violent felony and that his arrest

might be imminent. Thus, because the prospect existed that Word

might be arrested and be unable to complete the Program, the

administrator changed the recommendation to denying Word

admission. Accordingly, because the Program would not accept

Word, the court determined that performance of that condition of

the suspended sentence became "an impossibility."

Code ? 19.2-306 provides, "The court may, for any cause

deemed by it sufficient . . . revoke the suspension of sentence

. . . and cause the defendant to be arrested and brought before

the court . . . whereupon, . . . the court may pronounce

whatever sentence might have been originally imposed."

When a defendant fails to comply with the

terms and conditions of a suspended

sentence, the trial court has the power to

revoke the suspension of the sentence in

whole or in part. "A trial court has broad

discretion to revoke a suspended sentence

. . . based on Code ? 19.2-306, which allows

a court to do so ‘for any cause deemed by it

sufficient.’"

Alsberry v. Commonwealth, 39 Va. App. 314, 320, 572 S.E.2d 522,

525 (2002) (citations omitted).

Here, the trial court had sentenced Word to terms of

incarceration totaling nine years and twelve months and

suspended all but twelve months conditioned upon Word entering

and successfully completing the Detention Center Program and

then the Diversion Center Program. The sentencing order did not

provide that after serving his active incarceration that Word

would be released from confinement and remain on probation. The

order provided that he would be confined in another intermediate

facility of the Department as an alternative to incarceration

where he would receive a variety of services. When Word could

no longer satisfy the prerequisite condition under which his

sentence was suspended, i.e. that he enter and successfully

complete two Department programs, the court had the authority to

reconsider the suspended sentences, see Richardson v.

Commonwealth, 131 Va. 802, 109 S.E. 460 (1921) (when execution

of a sentence is suspended the case remains pending and the

court does not lose control of the case or the accused), and to

determine what portion of the suspended sentences or other

alternatives to incarceration would be appropriate in lieu of

the confinement that had been ordered in the community-based

programs.

While the revocation of a suspended sentence must be based

upon reasonable cause, the failure or inability of a convicted

offender to participate in a community based diversion program,

when such participation was a condition of and prerequisite to

having been given a suspended sentence, is a reasonable cause

for the court to revoke a suspended sentence. See Bailey v.

Commonwealth, 19 Va. App. 355, 451 S.E.2d 686 (1994). Here the

court conducted a revocation hearing and considered the

sentencing options available and determined to revoke, in

effect, a portion of the suspended sentence. Under these

circumstances, we find the revocation of the suspended sentence

to be reasonable.

Accordingly, we affirm the trial court’s revoking Word’s

nine-year suspended sentence and in re-suspending all but 120

days, thereby requiring that he serve an additional 120 days of

active incarceration. Such action was not arbitrary; it was

done with due process, and was consistent with the trial court’s

original sentencing objectives.[3]

Revoking Probation

To the extent that the trial court found Word to be in

violation of probation, we agree with Word that he did not

violate any condition of probation.

Word was called upon to show cause "why his suspended

sentence should not be revoked for violation of probation

conditions . . . ." The trial court’s disposition order
stated

that appellant "was found to have violated the terms and

conditions of the previously suspended sentence . . . ." We

understand this language to distinguish between revoking a

suspended sentence and revoking probation and that the court

held Word’s failure to satisfy the condition of the suspended

sentence was the ground for additional time being imposed.

However, the trial court further ordered that Word "shall
not be

subject to another show cause on this particular violation of

probation conditions." This, and other language in the
order

suggests that the court may have found that Word violated a

condition of probation and that a probation violation may now be

part of Word’s criminal record.

As previously noted,

Although the power of a court to revoke

[probation or] a suspended sentence granted

by [Code ? 19.2-306] is broad, it is not

without limitation. The cause deemed by the

court to be sufficient for revoking

[probation or] a suspension must be a

reasonable cause.

The sufficiency of the evidence to sustain

an order of revocation "is a matter within

the sound discretion of the trial court.

Its findings of fact and judgment thereon

are reversible only upon a clear showing of

abuse of such discretion." The discretion

required is a judicial discretion, the

exercise of which "implies conscientious

judgment, not arbitrary action."

Duff v. Commonwealth, 16 Va. App. 293, 297, 429 S.E.2d 465, 467

(1993) (citation omitted).

The true objective of suspended sentencing

[and probation] is to rehabilitate and to

encourage a convicted defendant to be of

good behavior. To accomplish this it is

necessary that good conduct be rewarded. It

is important that a defendant know that good

conduct on his part will expedite his

complete restoration to society.

Hamilton v. Commonwealth, 217 Va. 325, 328, 228 S.E.2d 555,

556-57 (1976).

"Although a probation violation hearing is not a stage of a

criminal prosecution, and thus does not afford a convict all

rights attending a criminal prosecution, such revocation hearing

is nevertheless a criminal proceeding[,]" Green v.
Commonwealth,

263 Va. 191, 195-96, 557 S.E.2d 230, 233 (2002) (citations

omitted), which carries significant penal consequences.

Probation violations are entered in the National Crime

Information Computer (NCIC) and become a part of a convicted

criminal’s record. A person’s criminal record impacts

employment and other personal opportunities, as well as any

subsequent criminal proceedings which might arise, including

bond hearings, sentencing hearings, placement in correctional

programs and institutions, and length of supervision. Most

significantly, probation violations are considered
"sentencing

events" for the purpose of a court calculating sentencing

guidelines.

Appellant committed no willful act that would reasonably

support a violation of probation. The crimes for which the

prosecutor alleged the federal authorities were investigating

Word preceded the term of probation and suspended sentence and,

thus, would not have been a basis for revoking Word’s suspended

sentence. See Bailey v. Commonwealth, 19 Va. App. 355, 357,

451 S.E.2d 686, 687 (1994) (holding "revocation of the
suspended

sentence . . . must be based upon cause that occurred within the

suspension or probation period"). See also Code ?
19.2-306;

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

Moreover, insofar as the record reflects, Word was not arrested

or charged with the offenses that were being investigated at any

time the trial court was considering whether to revoke Word’s

suspended sentence or probation. Thus, to the extent that the

trial court may have found that Word violated a condition of

probation, we reverse that finding and remand the case to the

trial court to vacate that finding and to take such further

action as hereafter directed to remove the probation violation

finding from Word’s record.

In summary, we affirm the trial court’s revocation of

Word’s suspended sentence and re-suspending all but 120 days of

the remaining nine-year sentence. We reverse that portion of

the trial court’s order to the extent that it may have found

that Word violated a condition of probation; we remand the case

to the trial court with instructions that the court determine

whether Word was found to have violated a condition of probation

and, as a result, has a probation violation on his record. To

the extent that Word has a probation violation on his record,

the court shall vacate that part of its order and enter such

order as is necessary to remove and expunge the probation

violation from Word’s record.

Affirmed in part,

vacated and

remanded in part.

Benton, J., concurring, in part, and dissenting, in part.

I concur in the portion of the opinion styled Revoking

Probation and in reversing the trial judge’s finding that Verlie

Marion Word violated a condition of probation. I dissent from

the holding that the trial judge did not err in revoking Word’s

suspended sentence.

The record indicates that after the trial judge accepted

Word’s guilty plea, the judge ordered that Word be evaluated by

the Detention Center Incarceration Program. The Detention

Center did so and determined that Word was suitable for the

placement. The final conviction order, which was entered in

2001, suspended eight years and twelve months of Word’s sentence

on condition that he enter and successfully complete the

Detention Center program. After Word served the sentence of

active incarceration, the Department of Corrections did not

transfer him to the Detention Center as required by the order.

At a hearing held less than four months after entry of the

conviction order, the prosecutor represented to the trial judge

by way of proffer the following reason for the Department’s

actions:

Mr. Word is the subject of a federal

investigation related to two murders that

occurred in 1993. We’ve been investigation

this . . . since ’93 and with my

involvement, I guess, since the last of

that, four months.

Mr. Word, in our opinion, was a

security risk. Word had gotten back to him

that he was going to be charged with two

counts of capital murder. We believe that

he is a security risk, a flight risk.

I made contact with the detention

center and inquired of them as to what their

facilities were like, whether or not he

would be allowed to leave the premises

unaccompanied.

They advised that precautions could be

taken with somebody, but in light of the

charges, though they are not pending, I want

to make that clear to the Court, he has not

been charged yet, though I can state quite

frankly in court, he will be charged. The

evidence is quite sufficient.

He will probably be charged in February

for the two counts of capital murder plus a

number of other federal charges relating to

the attempted distribution of controlled

substances. I believe that would be more

than fifty grams.

Anyway, I’m sorry, I relayed that

information to the detention center. And

they said, quite frankly, in that case, we

can’t take someone like that, he cannot be

housed here, especially in light of the fact

that I cannot guarantee them, that he would

not be able to complete any type of program

and that it’s most likely that he would be

taken out of the program there soon after

July.

So, that’s the basis for the show

cause. And, in essence he cannot complete

the detention center.

"Although the power of the court to revoke a suspended

sentence granted by . . . [Code ? 19.2-306] is broad, it is not

without limitation." Duff v. Commonwealth, 16 Va. App. 293,

297, 429 S.E.2d 465, 467 (1993). By well established rules of

decision "’[t]he cause deemed by the court to be sufficient
for

revoking a suspension must be a reasonable cause.’" Id.
Thus,

we have held that "a reasonable failure to [conform to the

condition of the suspension] negates a reasonable cause to

revoke a suspended sentence." Id. at 298, 429 S.E.2d at
467.

The dispositive issue is whether, based on the information

before the trial judge, Code ? 19.2-316.2 permitted revocation

of the suspended sentence or whether revocation was otherwise

authorized under Code ? 19.2-306, the general statute for

revoking probation and suspended sentences. I believe those

statutes did not authorize the revocation of the sentence. When

the trial judge convicted and sentenced Word for non-violent

felonies, the judge intended to impose upon Word confinement in

a regimented environment with a structured program between his

active incarceration and his release into the community. The

Detention Center is for non-violent offenders, such as Word, who

do not qualify for the Boot Camp Incarceration Program pursuant

to Code ? 19.2-316.1, but nevertheless require structured

detention. The Detention Center determined that Word was

emotionally and physically suited to the program and could

benefit from it. When the program later determined not to

"accept" Word after the judge had ordered the
placement, Word

had not been charged in that interval with any offense.

Code ? 19.2-316.2(4) provides that "[u]pon a finding that

the defendant voluntarily withdrew from the program, was removed

from the program . . . for intractable behavior, or failed to

comply with the terms and conditions of probation, the court may

revoke all or part of the probation and suspended sentence

. . . ." Word did not withdraw from the Detention Center
and

was not removed for intractable behavior as defined by Code

? 19.2-306.1. The crimes, which the prosecutor alleges the

federal authorities were investigating, preceded the term of

probation and suspended sentence and, thus, would not have been

a basis for revoking Word’s suspended sentence. See Bailey v.

Commonwealth, 19 Va. App. 355, 357, 451 S.E.2d 686, 687 (1994)

(holding that "[t]he revocation of the suspended sentence .
. .

must be based upon cause that occurred within the suspension or

probation period"). See also Code ? 19.2-306; Preston v.

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

the prosecutor noted the Commonwealth had been investigating

these same events since 1993. At the 2001 sentencing

proceeding, however, these matters were not disclosed to the

trial judge as a reason to deny granting either the suspended

sentence or probation.

The trial judge did not find and the record does not

suggest that Word was unwilling or unable to conform his

behavior to that required to complete the program. See Code

? 19.2-316.1 (defining "intractable behavior" in
terms that

denote willful or obstinate conduct). Furthermore, no

provisions of Code ?? 19.2-316.2 or 19.2-316.1 require that a

person being considered for the program be disqualified due to

ongoing criminal investigations. The Detention Center had

determined pursuant to Code ? 19.2-316.2(A)(2) and (3) that
Word

met the criteria for eligibility in the program, and the record

establishes no grounds for revocation of his suspended sentence.

Additionally, the prosecutor did not prove any violations of the

conditions of probation or of the requirements to be of good

behavior.

The record also does not establish that the Detention

Center had a policy which precluded Word’s admission to the

program. Indeed, Word’s attorney proffered that the supervisor

of the program told her the Detention Center’s policies did not

bar Word’s entry to the program. The prosecutor concurred in

that representation in the following colloquy:

[PROSECUTOR]: That seems to confirm my

conversation with him. When I initially

spoke with him I was just inquiring as to

their security at this facility. I mean, I

fully expected Mr. Word to go to the

detention center, and I was just concerned

that he was a flight risk and was inquiring

what the security was. When I mentioned

pending charges or the possibility of

pending charges — and I guess I was

forceful, I guess, in my representation that

charges are coming — it’s more of, I guess,

a matter of getting the ducks in a row at

the federal level — that seemed to peak his

interest, but it — but I guess the counter

question from him was could I guarantee that

Mr. Word would complete the program. And

that seemed to be — their biggest concern

was they didn’t want someone that they knew

was most likely going to be taken out before

the completion of the program. And I don’t

know if they have some sort of statistic

thing or –

[JUDGE]: Their funding is based on how many

people they get — they get to complete the

program.

[PROSECUTOR]: I thought that might be the

issue, Your Honor.

[THE COURT]: That’s their problem. They’re

going to shy away from anybody they don’t

think — they’re not pretty sure is going to

get through the program.

[PROSECUTOR]: I think that’s — maybe I was

too forceful in the representation that this

is coming . . . .

Thus, it is apparent from the record that Word continued to be

qualified for participation in the program. The Detention

Center, nevertheless, refused to accept custody of Word because

it was concerned about protecting its statistical profile. The

trial judge accepted that rationale, ruled that Word had

violated the terms of his suspended sentence, and did not

consider any alternatives but that of additional incarceration.

While our decision in Duff addressed probation violations

under Code ? 19.2-305.1, specifically the failure to pay

restitution, the principles discussed in that opinion concerning

reasonableness apply generally. See also Code ? 19.2-306;

Coffey v. Commonwealth, 209 Va. 760, 167 S.E.2d 343 (1969)

(holding that good behavior is an implicit condition of every

suspended sentence). "Where the evidence establishes that
the

failure [to comply with the terms of a suspended sentence]

resulted from an inability to [perform] and not a willful

refusal, it is an abuse of discretion to automatically revoke

the prior suspended sentence without considering reasonable

alternatives to imprisonment." Duff, 16 Va. App. at 298-99,

429 S.E.2d at 468. In the present case, the trial judge

acknowledged that the Detention Center’s refusal to accept Word

was not due to willful misconduct by Word. Further, the trial

judge accepted the proffers and made no direct inquiry as to why

the Detention Center failed to accept Word after the Detention

Center had found him qualified and recommended the referral.

Simply put, the record indicates the revocation of the

suspended sentence was based on the fact that the Detention

Center did not receive from the prosecutor a "guarantee
that

. . . Word would complete the program" and, thus, the
Detention

Center declined to put at risk its statistical profile. The

trial judge exercised an arbitrary and unreasonable judgment in

accepting this rationale. "The discretion required is a

judicial discretion, the exercise of which ‘implies

conscientious judgment, not arbitrary action.’" Hamilton v.

Commonwealth, 217 Va. 325, 327, 228 S.E.2d 555, 556 (1976)

(citation omitted). Under these circumstances, I would hold

that the trial judge abused his discretion in finding that Word

violated the terms and conditions of his suspended sentence and

in sentencing him to an additional term of incarceration.

For these reasons, I would reverse both the finding that

Word violated his probation and the order revoking the suspended

sentence.

 

FOOTNOTES:

[1]Code ?
53.1-67.8 provides:

The Department is authorized to establish

and maintain a system of residential

detention centers to provide a highly

structured, short-term period of

incarceration for individuals committed to

the Department under the provisions of

? 19.2-316.2. The Program shall include

components for military-style management and

supervision, physical labor in organized

public works projects, counseling, remedial

education, substance abuse testing and

treatment, and community re-entry services.

 

[2]Code ?
19.2-316.2 provides:

1. Following conviction and prior to

imposition of sentence . . . , upon motion

of the defendant, the court may order such

defendant committed to the Department of

Corrections for a period not to exceed sixty

days from the date of commitment for

evaluation and diagnosis by the Department

to determine suitability for participation

in the Detention Center Incarceration

Program. . . .

2. Upon determination that (i) such

defendant is physically and emotionally

suited for the program, (ii) such commitment

is in the best interest of the Commonwealth

and the defendant, and (iii) facilities are

available for the confinement of the

defendant, the Department shall recommend to

the court in writing that the defendant be

committed to the Detention Center

Incarceration Program.

 

[3]Grounds for
revoking Word’s suspended sentence were not

founded in the statutes governing the Programs. Code

? 19.2-316.2(4) provides that "[u]pon a finding that the

defendant voluntarily withdrew from the Program, was removed

from the Program by the Department for intractable behavior, or

failed to comply with the terms and conditions of probation, the

court may revoke all or part of the . . . suspended sentence

. . . ." Word was not removed from the Program for
intractable

behavior. The court did not find, nor does the record suggest,

that Word was unwilling or unable to conform his behavior to

that required to complete the Program. See Code ? 19.2-316.1

(defining "intractable behavior"); see also Peyton v.

Commonwealth,___ Va. App. ___, ___ S.E.2d ___ (2003) (revocation

upheld where medical condition prevented Peyton from completing

Program).


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