Appellant’s reimposed sentences will be served consecutively because the original sentencing order is best understood as providing for concurrent service of the active sentences and consecutive terms for the suspended sentences.
In August 2016, appellant was convicted of grand larceny and larceny with intent to sell or distribute. These were counts two and three of a multicount indictment. The trial court sentenced him to two years on each conviction. The court suspended all but 90 days of “each sentence ‘upon the … condition’ that the ‘time to serve in count 3 shall run CONCURRENTLY with the time to serve in count 2.’”
In June 2017, appellant violated the conditions of his suspended sentences. The court revoked then resuspended the unserved portions of appellant’s sentences. The court’s order provided “that ‘[t]he sentence in count 3 shall run CONCURRENTLY with the sentence in count 2.’”
In May 2018, after finding that appellant violated the conditions of his suspended sentences, “[t]he court resuspended one year and four months of each sentence ‘upon the … condition’ that ‘[t]he time to serve in count 3 shall run CONCURRENTLY with the time to serve in count 2.’”
Appellant completed his active incarceration in May 2018. In September 2019, he violated his probation by committing a felony larceny. The trial court revoked the unserved portions of his sentences, resuspended all but three month of each sentence but this time ordered that the terms of active incarceration would run consecutively.
Appellant “contends that the trial court could not order the imposed portions of his sentences to run consecutively because the original sentencing order directed his sentences to run concurrently. Appellant relies on Conner v. Commonwealth, 207 Va. 455, 457 (1966), in which the Supreme Court held that once an order directing that sentences ‘run concurrently’ becomes final, the trial court does not ‘have the right or power … to change the sentences and require that [they] should run consecutively.’ …
“[A]ppellant’s original sentencing order did not expressly state that appellant’s ‘sentences’ were to run concurrently. Rather, after suspending all but ninety days of each sentence, the order provided that the ‘time to serve in count 3 shall run CONCURRENTLY with the time to serve in count 2.’ (Emphases added).
“That language distinguishes between the active and suspended portions of appellant’s sentences; and it directs that only the active portion of count 3 shall run concurrently with only the active portion of count 2. Thus, the order did not provide ‘express’ language necessary to run the entirety of appellant’s sentences concurrently, but evinced instead the trial court’s intent that only the active portions of the sentences would run concurrently and to impose consecutive terms for the suspended sentences.
“Additionally, the trial court’s original sentencing order explicitly stated that appellant’s concurrent service of the ‘time to serve’ of each sentence was a “condition’ of his suspended sentences, not a part of the sentences themselves.
“‘Code § 19.2-303 grants a trial court the authority to fix reasonable terms and conditions for the suspension of execution of a sentence.’ … If the trial court resuspends any or all of the sentences, it has ‘the discretion to impose different conditions on the resuspension of those sentences.’ …
“Indeed, the statutes addressing suspension of sentences ‘contain no indication that any limitations exist on the prospective terms and conditions the court may impose upon revocation and resuspension or that the trial court must reimpose the same terms and conditions imposed on the original suspensions.’ …
“To the contrary, the ‘revocation of a previously suspended sentence and the resuspension of some or all of that previously suspended sentence is a new sentencing event.’ …
“In sum, the language of the original sentencing order unambiguously evinced the trial court’s intent to impose concurrent sentences only for the active portions of appellant’s sentences, as a condition of appellant’s suspended sentences, and to impose consecutive terms for the suspended sentences.”
Clemons v. Commonwealth, Record No. 1675-19-1, July 21, 2020. CAV (Clements) from Portsmouth City Cir. Ct. (Morrison) W. McMillan Powers for appellant, Mason D. Williams for appellee. VLW 020-7-156, 7 pp. Unpublished.