Court not required to re-suspend entire sentence

Where the court initially suspended appellant’s five-year sentence and imposed a two-year period of supervised probation, the court was not required to again suspend the five-year sentence after a major probation violation.

Overview

Appellant pleaded guilty to a drug offense. The court imposed a five-year sentence, then suspended all of it and ordered a two-year period of supervised probation.

Later, her probation officer reported a major violation of her supervised probation based on appellant’s use of drugs and alcohol, her conviction of public intoxication and her arrest on two counts of filing a false welfare application.

Appellant pleaded guilty to one count of felony welfare fraud. “In accordance with the plea agreement, the trial court sentenced the appellant to two years in prison with one year and eight months suspended.

“The transcript for the sentencing hearing indicates that the appellant’s sentence fell below the correctly-calculated guidelines due to a calculation error made by the parties.”

After a hearing regarding revocation of her probation, the court revoked the five-year sentence and resuspended four years, giving appellant a one-year active sentence.

“The court explained that the appellant had committed a new felony offense for which she received the ‘benefit’ of a below-guidelines sentence. The court added that the appellant had been previously offered ‘various methods to rehabilitate and it just didn’t go anywhere.’”

No abuse of discretion

“The appellant argues that the trial court abused its discretion by resuspending only four years of her five-year sentence. She bases her argument in part on the trial court’s comment that she had already received a ‘good benefit’ from her plea agreement. …

“[A]fter suspending a sentence, a trial court may revoke that suspension ‘for any cause the court deems sufficient that occurred at any time within the probation period, or within the period of suspension fixed by the court.’ …

“If the trial court finds good cause to believe that a defendant violated the terms of her suspended sentence, ‘then the court may revoke the suspension and impose’ a new sentence, on the condition that the new sentence does not exceed the statutory maximum range for the underlying offense. …

“The trial court is permitted – but not required – to resuspend all or part of the sentence. Alsberry v. Commonwealth, 39 Va. App. 314 (2002). …

“[T]he appellant does not challenge the trial court’s decision to revoke her suspended sentence. Instead, she argues that the court abused its discretion by not resuspending the entire sentence. This argument is directly contradicted by established law. …

“The appellant committed numerous probation violations, including using controlled substances and committing new offenses, one of which was a felony offense. The appellant cites no legal authority in support of her position that the trial court abused its discretion by considering the sentence imposed for her new felony.

“We held in Alsberry that the lower court did not abuse its discretion by reimposing in its entirety a suspended sentence, in excess of twenty-four years, based on the commission of two misdemeanor probation violations. …

“Similarly, here, based on the appellant’s new felony offense and other probation violations, the trial court did not abuse its discretion by resuspending only four years of her five-year sentence.”

Affirmed.

Beeman v. Commonwealth, Record No. 0910-21-3, March 22, 2022. CAV (per curiam) from the Circuit Court of Rockingham County (Albertson). Richard G. Morgan for appellant. Robin M. Nagel for appellee. VLW 022-7-068, 5 pp. Unpublished opinion.