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RUFFIN v. COMMONWEALTH



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RUFFIN

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

DECEMBER 28, 1999

Record No. 1685-98-1

AMBER K. RUFFIN

v.

COMMONWEALTH OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Elder
and Lemons

Argued at Chesapeake, Virginia

MEMORANDUM OPINION [1] BY CHIEF
JUDGE JOHANNA L. FITZPATRICK

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA
BEACH

H. Thomas Padrick, Jr., Judge

Melinda R. Glaubke, Senior Assistant Public
Defender (Office of the Public Defender, on brief), for
appellant.

John H. McLees, Jr., Assistant Attorney General
(Mark L. Earley, Attorney General; Pamela A. Rumpz, Assistant
Attorney General, on brief), for appellee.

 


Amber K. Ruffin (appellant) appeals the
revocation of her suspended sentence. She contends that (1) the
trial court abused its discretion in sentencing her to prison
because Code ? 19.2-306 prevents the court from conducting
a revocation hearing based solely on an alleged violation for
which a previous hearing was held, and (2) her denial of a
placement in an alternative sentencing program was a violation of
the Americans with Disabilities Act of 1990, 42 U.S.C.
? 12101 et seq. For the following reasons, we
affirm.

On August 12, 1996, appellant was convicted of
prescription fraud and was sentenced to three years imprisonment,
all suspended conditioned upon appellant’s good behavior,
participation in a supervised probation program and payment of
court costs. On June 2, 1998, the trial court determined that
appellant had violated the conditions of her probation by using
cocaine. The trial court revoked and re-suspended appellant’s
sentence upon the condition that she successfully complete the
Detention Center Program and the Diversion Center Program. At
that time, the court noted that appellant was first to be
"evaluated" and "screened" for admission into
these alternative programs and that her three-year sentence would
be re-suspended upon completion of the programs.

After an evaluation, the Department of
Corrections found that appellant was ineligible for the detention
center and diversion center programs due to a history of major
depression and post-traumatic stress disorder. On June 29, 1998,
after learning that appellant did not qualify for the alternative
sentencing programs, the trial court amended its previous order
and revoked the three years of appellant’s suspended sentence.
While appellant argued that her denial into these programs
violated the Americans with Disabilities Act, she raised no other
objection.

On appeal, appellant contends that the trial
court abused its discretion in revoking her suspended sentence as
contrary to Code ? 19.2-306.
[2]
Appellant’s argument is procedurally barred. Rule 5A:18 provides:

No ruling of the trial court . . . will be
considered as a basis for reversal unless the objection was
stated together with the grounds therefor at the time of the
ruling, except for good cause shown or to enable the Court of
Appeals to attain the ends of justice. A mere statement that the
judgment or award is contrary to the law and the evidence is not
sufficient to constitute a question to be ruled upon on appeal.

"The primary function of Rule 5A:18 is to
alert the trial judge to possible error so that the judge may
consider the issue intelligently and take any corrective actions
necessary to avoid unnecessary appeals, reversals and
mistrials." Martin v. Commonwealth, 13 Va. App. 524,
530, 414 S.E.2d 401, 404 (1992).

In the instant case, appellant did not object
to the trial court’s decision at the time of sentencing as either
an abuse of discretion or contrary to the provisions of Code
? 19.2-306. Additionally, while this Court will notice
error for which there has been no timely objection when necessary
to satisfy the ends of justice, the record must
"affirmatively show that a miscarriage of justice has
occurred, not that a miscarriage might have
occurred." Redman v. Commonwealth, 25 Va. App. 215,
221, 487 S.E.2d 269, 272 (1997). Our review of the record
discloses no miscarriage of justice in the instant case.

Next, appellant contends that her denial of
admission into the two treatment programs because of her mental
health problems was a violation of the Americans with
Disabilities Act of 1990, 42 U.S.C. ? 12101 et seq.
However, we recently held that "a probation revocation
hearing in a criminal court is not the proper forum in which to
attack that violation." Wilson v. Commonwealth, ___
Va. App. ___, ___, ___ S.E.2d ___, ___ (1999).

For the foregoing reasons, the judgment of the
trial court is affirmed.

Affirmed.

 

FOOTNOTES:

[1] Pursuant to Code ? 17.1-413, recodifying Code
? 17-116.010, this opinion is not designated for
publication.

[2] Code ? 19.2-306 provides in pertinent part:

The court may, for any cause deemed by
it sufficient . . . revoke the suspension of sentence. .
. . [I]f any court has, after hearing, found no cause . .
. to revoke a suspended sentence or probation, any
further hearing to . . . revoke a suspended sentence or
probation, based solely on the alleged violation for
which the hearing was held shall be barred.