                    COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Annunziata and Senior Judge Hodges
Argued at Norfolk, Virginia


JOHN T. POFFENBARGER

v.   Record No. 1307-95-1                   MEMORANDUM OPINION * BY
                                            JUDGE WILLIAM H. HODGES
COMMONWEALTH OF VIRGINIA                          MAY 7, 1996


         FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                     Dennis F. McMurran, Judge
            Dianne G. Ringer, Assistant Public Defender,
            for appellant.

            Steven A. Witmer, Assistant Attorney General
            (James S. Gilmore, III, Attorney General, on
            brief), for appellee.



     John T. Poffenbarger appeals the revocation of his suspended

sentence.   He contends that the trial court abused its discretion

in considering his new convictions in determining whether he had

violated his probation, where the convictions were for offenses

which predated the start of his probationary period.     We find no

reversible error, and therefore affirm the trial court's

judgment.
                             Background

     On July 16, 1993, Poffenbarger was sentenced upon a

conviction for larceny of a firearm.      No presentence report was

prepared.

     Poffenbarger failed to report to his probation officer,

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Derek E. Hunt.   As a result, on August 19, 1993, Hunt submitted a

probation violation report to the court.   On February 24, 1994,

Hunt submitted an addendum to the probation violation report.    In

the addendum, Hunt stated that Poffenbarger had violated

Condition 1 of the suspension by being convicted of forgery in

Norfolk Circuit Court on November 19, 1993.

     On August 4, 1994, a new probation officer, Mitzi P.

Cartwright, submitted another addendum to the probation violation

report.   That report read, in part:
           The purpose of this addendum is to advise the
           Court that although subject was convicted on
           that Forgery charge in Norfolk Circuit Court
           and additionally was convicted and sentenced
           for Forgery in Suffolk Circuit Court on May
           19, 1994, both of the offense dates for these
           offenses occurred prior to July 16, 1993, and
           therefore, cannot be used as violation
           information. However, subject remains in
           violation of Condition #1 in that on April
           19, 1994, he was convicted in Portsmouth
           Circuit Court on two counts of Forgery and
           two counts of Petit Larceny before Judge L.
           Cleaves Manning. The offense date for these
           offenses was July 27, 1993.


     At the June 15, 1995 revocation hearing, Poffenbarger argued

that it was improper for the court to consider offenses committed

prior to July 16, 1993 as a basis for revocation.   The court

rejected this argument, finding that the offenses could serve as

a basis for revocation as long as Poffenbarger was convicted of

the offenses after July 16, 1993.    The court also stated that if

it had been aware of the pending charges on July 16, 1993, then

it "probably would have rejected the plea agreement" entered into



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by the parties.

     The court revoked the suspended sentence, sentenced

Poffenbarger to confinement in the Portsmouth City Jail for six

months, and, upon his release, placed him on three years

supervised probation.

                                Analysis

     Poffenbarger argues that the court erred in considering, as

a basis for revocation, those offenses which occurred prior to

entry of the July 16, 1993 sentencing order.         The Commonwealth,

on the other hand, contends that the court could consider those

offenses because Poffenbarger had concealed the pending charges

at the time of the sentencing hearing.          As such, the Commonwealth

argues, Poffenbarger perpetrated a fraud upon the court, and the

court could properly revoke his probation.
     It is well settled that
          [t]he term of suspension of a sentence
          generally commences on the day of entry of
          the order imposing the suspended sentence.
          The suspension of a sentence may be revoked
          upon a showing that its terms have been
          violated. Generally, where the suspension is
          conditioned upon future good conduct, the
          revocation of the suspension must be
          predicated upon a showing of conduct which
          occurs subsequent to the imposition of the
          suspended sentence.

                        *   *   *   *   *   *    *

          An exception to the foregoing general rule is
          recognized in cases involving fraud on a
          court.
Bryce v. Commonwealth, 13 Va. App. 589, 590-91, 414 S.E.2d 417,




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418 (1992) (citation omitted).

          Deceit, untruthfulness and deception at the
          time of the sentencing are always grounds for
          revoking a suspended sentence. State v.
          Lintz, 162 Mont. 102, 106, 509 P.2d 13, 15
          (1973). There is "significant authority for
          the proposition that a trial court has the
          discretion to revoke probation if information
          is discovered which, had it been known at the
          time of sentencing, would have led the trial
          court to deny probation." State v. Darrin,
          325 N.W.2d 110, 113 (Iowa 1982); see also
          Annotation: Revocation of Probation Based on
          Defendant's Misrepresentation or Concealment
          of Information From Trial Court, 36 A.L.R.4th
          1175 (1985).
Cottrell v. Commonwealth, 12 Va. App. 570, 574, 405 S.E.2d 438,

441 (1991).


     Here, the trial judge at the time of sentencing was unaware

of Poffenbarger's pending charges.   However, nothing in this

record indicates that his lack of awareness was attributable to

any "deceit, untruthfulness [or] deception" on the part of

Poffenbarger.   Accordingly, the Commonwealth's fraud argument

lacks merit, and the trial judge erred in considering the

offenses which occurred prior to sentencing.

     In this case, however, the court's error was harmless.
          A nonconstitutional error is harmless if "it
          plainly appears from the record and the
          evidence given at trial that the error did
          not affect the verdict." Lavinder v.
          Commonwealth, 12 Va. App. 1003, 1005, 407
          S.E.2d 910, 911 (1991) (en banc). "An error
          does not affect a verdict if a reviewing
          court can conclude, without usurping the
          jury's fact finding function, that had the
          error not occurred, the verdict would have
          been the same." Id.




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Scott v. Commonwealth, 18 Va. App. 692, 695, 446 S.E.2d 619, 620

(1994).

     Here, the court had before it evidence of other grounds that

would justify revocation of Poffenbarger's suspended sentence:

(a) his failure to report to his probation officer, and (b) four

convictions for offenses which occurred on July 27, 1993.   In

light of this evidence, we conclude "that had the error not

occurred, the verdict would have been the same."   Under these

circumstances, and upon our review of the record, it is clear

that the trial court, despite its error, would have revoked

Poffenbarger's suspended sentence, and that Poffenbarger could

not have hoped for any better result than revocation of a mere

six months of that suspended sentence.
                                             Affirmed.




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