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HOUSE v. COMMONWEALTH OF VIRGINIA (unpublished)


HOUSE v. COMMONWEALTH OF
VIRGINIA

(unpublished)


MAY 27, 1997
Record No. 0654?96?3

WILLIAM TODD HOUSE

v.

COMMONWEALTH OF VIRGINIA

Donald R. Mullins, Judge
Present: Chief Judge Moon, Judges Coleman and Willis
Argued at Salem, Virginia

MEMORANDUM OPINION[1]
BY CHIEF JUDGE NORMAN K. MOON
FROM THE CIRCUIT COURT OF TAZEWELL COUNTY

Norman Lamson for appellant.

Ruth A. Morken, Assistant Attorney General (James S. Gilmore,
III, Attorney General; Margaret Ann B. Walker, Assistant Attorney
General, on brief), for appellee.


William Todd House appeals the revocation of his suspended
sentence. House asserts that the trial court abused its
discretion in revoking his suspended sentence on the basis of its
finding that House had failed to perform public service, a
condition of his probation. Holding that the trial court’s
revocation of House’s suspended sentence was based on reasonable
cause and was within the sound discretion of the trial court, we
affirm.

On March 13, 1995, House was convicted of attempting to
purchase or possess a firearm after having been convicted of a
felony. Subsequent to a hearing on April 24, 1995, House was
sentenced to five years in prison, all of which were
conditionally suspended. At the conclusion of the sentencing
hearing, the trial court explained the terms of the suspended
sentence to House, stating:

I’m going to sentence you to five years in the
penitentiary. And I am going to suspend that on the normal
and usual terms and conditions of probation. One of the
special conditions will be that you get a job. A full time
job or at any time that you’re not fully employed you’ll have
to perform community service. At least thirty?six hours a
week
. And if you fail to do that then you’ll be in
violation of your probation and the Court will then have you
serve the five years. (Emphasis added.)

In relevant part, the final sentencing order stated:
"[t]he Court . . . does suspend the execution of the
aforesaid penitentiary sentence . . . upon the express terms
and conditions that the defendant be of good behavior . . .
[and] that he perform community service if not employed full
time . . . ."

In order to participate in the community service program, it
was necessary for House to sign a liability release form. House,
who had previously suffered a back injury and took prescription
medication for the injuries, refused to sign the waiver. House’s
probation officer, H. M. Flynn, and the community service
placement director had been informed of House’s condition and the
consequent limitations on his work capacity by House’s physician.
Accordingly, Flynn ordered that House only be assigned to
community service positions within the range of his capabilities.
Nevertheless, Flynn reported that House told the community
service placement director that "someone [would] be
responsible for [him] getting injured."

Flynn notified the court that House had violated the terms of
his probation by refusing to follow his probation officer’s
instructions and by failing to be cooperative. Specifically,
Flynn reported House’s refusal to sign the liability release form
and his statement to the community service placement director. A
revocation hearing was conducted at which House stated that he
would perform community service and that he would not
"present himself as some invalid at a work site and create
problems." On November 6, 1995, House’s probation officer
informed the court that House was then performing community
service. Consequently, by written order dated November 17, 1995,
the court continued House’s probation on the same terms and
conditions as originally imposed.

On December 20, 1995, House’s probation officer informed the
court that:

On November 6, 1995, an update was presented to the court
by letter indicat[ing] that Mr. House was performing
community service. However, since that letter, subject has
not performed community service due to work site supervisors
not allowing him to perform his duties because of his
attitude. Mr. House appears to be able to talk himself out of
the community service work on the first day at each site by
complaining of illnesses or other problems. This officer is
requesting that the Probation Violation Hearing of July 15,
1995, be rescheduled with a recommendation of revocation.

On January 30, 1996, the trial court ordered House to show
cause why his probation should not be revoked. Flynn testified
that during the nine months that House had been on probation he
had failed to regularly perform community service as required and
that in fact, he had only performed 165.5 total hours of service.
Flynn stated that at each site [House] goes to he presents
himself as injured, on drugs, not able to do the community
service. For example, at the last site, which would be the water
treatment plant, his first statements basically were do I need to
have shots before I work here? I’m on Valium. I’ve been injured
and that kind of thing. And of course none of the site
supervisors will accept him.

Flynn also stated that he and the community service placement
director were aware of House’s work limitations and that Flynn
had specifically instructed that House not be assigned work
outside of his physical restrictions. House testified that he
never complained about the work "on any job site" and
that he never stated that he "couldn’t perform the
work." House also stated that he had worked on a variety of
projects, but that ultimately someone would "pull him
out."

The trial judge found that House had violated his probation
and informed House that:

[Y]ou’ve been before me on this issue and you were brought
the first time because when you were sentenced here on April
24th the first time you appeared . . . to sign up for
community service, you told the lady there that someone will
be responsible for me getting injured. That concerned the
lady there. And we had a little hearing about that and you
came in and you told the Court that you were willing to work
and that you would present yourself with an attitude that
would get you through and you could complete your community
service. Community service is required of everybody on
probation here and you know that. You knew it when you
entered your plea. Full?time community service calls for a
hundred and seventy?three hours a month. That’s forty hours
a week. A hundred and seventy?three hours a month. You were
sentenced in April of ’95. This is February or the last of
January of ’96 and you’ve performed a hundred and sixty?five
and a half hours. I believe you’ve wasted your time and my
time and chances have been exhausted. I’m finding you guilty
of violating the terms of your probation. I’m going to revoke
your suspended sentence and have you serve it.

Code ? 19.2?303 provides that a trial court "may
suspend imposition of sentence or suspend the sentence in whole
or in part and in addition may place the accused on probation
under such conditions as the court shall determine . . . ."
In addition, "[t]he court may, for any cause deemed by it
sufficient which occurred at any time within the probation period
. . . revoke the suspension of sentence and any probation . . .
[and] pronounce whatever sentence might have been originally
imposed." Code ? 19.2?306; see also Patterson v.
Commonwealth
, 12 Va. App. 1046, 1048, 407 S.E.2d 43, 44
(1991). The trial court’s decision to revoke must be based on
reasonable cause, however, the trial court has broad discretion
in determining when revocation is appropriate. Patterson,
12 Va. App. at 1048, 407 S.E.2d at 44. On appeal the trial
court’s revocation order will be reversed only where there has
been a clear abuse of discretion. Slayton v. Commonwealth,
185 Va. 357, 367, 38 S.E.2d 479, 484 (1946).

Here, the record establishes that House understood that he was
to perform community service when he was not working and that
during the nine months that he was on probation, he completed
only 165.5 total hours of service. The record reflects that House
was employed fixing small engines, but no evidence was introduced
regarding how many hours a week House was employed nor how long
House was employed. Ultimately, the record is only sufficient to
prove that House performed 165.5 hours of community service, an
amount constituting slightly less than one month of full?time
community service.

Further, House’s assertion that the trial court’s order was
ambiguous because it failed to specify the amount of community
service to be performed is unsupported by the evidence. The trial
judge’s order from the bench specified thirty?six hours of
service. The court’s written order reiterated the court’s intent
that House "perform community service if not employed full
time." That the written order did not restate the
thirty?six hour requirement does not make the order any less
binding on House. As we have noted,

generally a court speaks through its written orders. . . .
However, where the record clearly establishes what was
intended, we must give force and effect to that intent rather
than rely solely on precise and technical wording of the
court’s written order.

Guba v. Commonwealth, 9 Va. App. 114, 118, 383 S.E.2d
764, 767 (1989). House stated that he understood the conditions
of his suspended sentence and that he was "prepared to
accept" the conditions imposed. Assuming, arguendo, that
House believed that he was to be employed at least thirty?six
hours a week, and if not so employed, to perform community
service, the record reflects that House failed to do even this.
The evidence suggests that there were numerous weeks in which
House neither worked full time, nor performed any amount of
community service. The record also establishes that House was
responsible for the difficulty he experienced in retaining those
community service positions offered to him. Flynn testified that
both he and the community service placement director were aware
of House’s physical limitations. The record establishes that
House was repeatedly offered positions which required work within
the parameters of his physical abilities. However, when House was
interviewed for the various positions offered, he would present
himself as "on drugs," injured, and generally unsuited
for work. Through these representations, he raised sufficient
concern among the supervisors interviewing him to assure his
rejection. House’s testimony that he did not refuse the work
offered and his assertions that he was "pulled out" of
the positions where he was employed, need not have been accepted
by the trial court. The credibility of witnesses and the weight
to be accorded their testimony are matters for the trial court to
decide. Slayton, 185 Va. at 367, 38 S.E.2d at 484.

Finding that the trial court’s revocation of House’s suspended
sentence was reasonably based on House’s failure to complete
sufficient public service, we hold that the trial court did not
abuse its discretion, and accordingly, we affirm.

Affirmed.

 

 

FOOTNOTES:

[1] Pursuant to Code
? 17-116.010 this opinion is not designated for
publication.

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