Criminal: Defendant’s assignments of error procedurally barred

Where a man failed to argue in the trial court that it lacked authority to revoke his suspended sentences, but claimed he could make this argument on appeal because the revocation orders he challenges are void, his argument failed. The alleged error does not render the revocation orders a nullity. At most, such orders would be voidable rather than void ab initio.

Background

On Aug. 21, 2023, the circuit court issued an order revoking Teddy Ray Cisneros’s suspended sentences and ordering him to serve the remaining balance of five years and five months in prison.

Analysis

As relevant to this case, Code § 19.2-306(A) provides that, where a trial court “has suspended the execution or imposition of sentence, the court may revoke the suspension of sentence 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.”

The crux of appellant’s arguments on appeal is that the trial court lacked authority to revoke his suspended sentences in the August 2023 order because the two prior orders — entered Feb. 7, 2022, and May 1, 2023 — were void ab initio. The basis of that claim is appellant’s assertion that the trial court surpassed the bounds of its statutory authority by suspending execution of his petit larceny sentence for periods beyond the five-year maximum permitted under amended Code § 19.2-306. This alleged error does not render the revocation orders a nullity. At most, such orders would be voidable rather than void ab initio.

The distinction between void and voidable judgments is crucial to this appeal because objections to a voidable error are waivable by a party’s failure to raise them below. And although appellant readily admits that he did not previously present his current arguments to the trial court, he contends that such failure does not preclude consideration of his claims for the first time on appeal because the revocation orders he challenges are void, not merely voidable. The court disagrees.

Accordingly, all three assignments of error here — based exclusively on appellant’s contention that the February 2022 and May 2023 orders are void ab initio — are procedurally barred by Rule 5A:18 unless this court invokes the ends of justice exception as appellant requests. However this court declines to invoke the ends of justice exception at appellant’s request where the record belies his claim of manifest injustice.

Because appellant’s suspended sentences were only ever revoked for instances of misconduct that occurred during suspension periods imposed within five years of his 2018 petit larceny conviction, this court finds that appellant did not meet his burden of affirmatively proving a miscarriage of justice. Accordingly, appellant’s assignments of error are procedurally barred by Rule 5A:18.

Affirmed.

Cisneros v. Commonwealth, Record No. 1385-23-3, Sept. 24, 2024. CAV (Huff). From the Circuit Court of the City of Danville (Huff). Brett P. Blobaum, Senior Appellate Attorney (Virginia Indigent Defense Commission, on briefs), for appellant. Timothy J. Huffstutter, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee. VLW 024-7-294. 22 pp.