                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Senior Judge Hodges
Argued at Alexandria, Virginia


PABLO T. DOSSOLA
                                                 OPINION BY
v.   Record No. 2824-00-4                JUDGE JAMES W. BENTON, JR.
                                              FEBRUARY 5, 2002
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                     Kathleen H. MacKay, Judge

          A. Andrew Giangreco; Louis Koutoulakos for
          appellant.

          Stephen R. McCullough, Assistant Attorney
          General (Mark L. Earley, Attorney General;
          Shelly R. James, Assistant Attorney General,
          on brief), for appellee.


     The sole issue raised by this appeal is whether the trial

judge erred by finding that Pablo T. Dossola violated the terms

and conditions of his probation, which was granted under Code

§ 18.2–251.   We affirm the judgment.

                                I.

     On June 10, 1999, Dossola pled guilty in the circuit court

to possession of marijuana in violation of Code § 18.2-250.1.

The trial judge found that the facts were sufficient to prove

Dossola's guilt, granted Dossola's motion to defer further

proceedings without entering a judgment, and placed him on

probation pursuant to Code § 18.2-251.    The terms of the
probation included a condition that Dossola be of "good behavior

for a period of one . . . year."

     On July 7, 2000, at a hearing to consider Dossola's

compliance with the terms and conditions of his probation, the

trial judge denied Dossola's motion to dismiss the proceedings

and continued the matter for a hearing upon the Commonwealth's

allegation that Dossola had violated the terms and conditions of

his probation.   After a hearing at which Dossola was directed to

"show cause why he should not be convicted and sentenced on the

original charge," the trial judge "found [Dossola] guilty of

violating the conditions of his probation," entered a judgment of

conviction, and sentenced him to a term in jail and to pay a fine

and costs.   The trial judge suspended the jail sentence upon the

condition of Dossola's good behavior for a year.   The record

contains no transcript of that hearing.
     Upon Dossola's motion, a judge suspended the judgment within

twenty-one days of its entry and scheduled a hearing on Dossola's

motion to set aside the judgment.    At the hearing on the motion

to set aside the judgment, Dossola's attorney conceded that

during the period of probation Dossola had been charged with

criminal trespass in Maryland.    He argued, however, that Dossola

had pled not guilty, that an order entered by the Maryland court

granted Dossola "probation before judgment," and that these

circumstances failed to prove Dossola had violated the condition

of good behavior imposed by the circuit court's June 10, 1999

order.   The prosecutor agreed that the sole question in the

proceeding was "whether or not [Dossola's] probation [before]

judgment in Maryland violates the [Code § 18.2-251] disposition"

                                 - 2 -
of the June 10, 1999 order.    The trial judge ruled that the

Maryland order supported an inference that, when the Maryland

judge found Dossola eligible for probation, the judge necessarily

found that Dossola's conduct was sufficient to prove he committed

the offense.   The trial judge found that Dossola had violated the

condition of good behavior and denied the motion to set aside the

judgment.

                                II.

     Dossola contends the trial judge misread the import of the

Maryland proceeding and, thus, erred in finding that he violated

the condition of good behavior during the period of probation.

The Commonwealth argues that the evidence supports the trial

judge's conviction order.
     The initial order granting Dossola probation in Virginia was

entered pursuant to Code § 18.2-251.    In pertinent part, that

statute provides as follows:

              Whenever any person who has not previously
            been convicted of any offense . . . relating
            to narcotic drugs, marijuana, or stimulant,
            depressant, or hallucinogenic drugs . . .
            pleads guilty to . . . possession of
            marijuana under § 18.2-250.1, the court,
            upon such plea if the facts found by the
            court would justify a finding of guilt,
            without entering a judgment of guilt and
            with the consent of the accused, may




                                - 3 -
             defer further proceedings and place him on
             probation upon terms and conditions.

                  *    *      *    *    *      *    *

               Upon violation of a term or condition [of
             probation], the court may enter an
             adjudication of guilt and proceed as
             otherwise provided.

Code § 18.2-251.

     "Probation is a disposition intended to 'reform' the

offender, appropriate in 'mitigating circumstances' or to promote

the 'public interest.'"        Connelly v. Commonwealth, 14 Va. App.

888, 890, 420 S.E.2d 244, 245 (1992) (citation omitted).         The

purpose of probation is to "restor[e] to a useful place in

society an offender who is a good social risk."          Slayton v.

Commonwealth, 185 Va. 357, 366, 38 S.E.2d 479, 483 (1946).            In

view of these principles, we have held that the probation

condition of "[g]ood behavior is not limited to an avoidance of

criminal activity."        Holden v. Commonwealth, 26 Va. App. 403,

409, 494 S.E.2d 892, 895 (1998).       Thus, a conviction of a

criminal offense is a sufficient but not a necessary circumstance

to prove a violation of probation.          See Slayton, 185 Va. at 366,

38 S.E.2d at 483.

     At the hearing on the motion to set aside the judgment, the

evidence established that a criminal complaint in Maryland

alleged that Dossola committed a trespass offense on a date that

occurred during the one-year probation period of the circuit

court's June 10, 1999 order.       Although Dossola pled not guilty to

that charge, the order of the Maryland court recites that a judge

heard the case and entered a verdict of "probation before

judgment."

                                    - 4 -
     At the request of Dossola's attorney, the trial judge

considered the effect of Art. 27, § 641(a), of the Maryland Code.

In pertinent part, the statute that was in effect when the

Maryland judge entered his order provided as follows:

           (1)(i) 1. Whenever a person accused of a
           crime pleads guilty or nolo contendere or is
           found guilty of an offense, a court
           exercising criminal jurisdiction, if
           satisfied that the best interests of the
           person and the welfare of the people of the
           State would be served thereby, and with the
           written consent of the person after
           determination of guilt or acceptance of a
           nolo contendere plea, may stay the entering
           of judgment, defer further proceedings, and
           place the person on probation subject to
           reasonable terms and conditions as
           appropriate.

                *    *    *    *    *    *     *

           (5) By consenting to and receiving a stay
           of entering of the judgment as provided by
           this subsection, the person waives the right
           to appeal from the judgment of guilt by the
           court at any time. Prior to the person
           consenting to the stay of entering of the
           judgment, the court shall notify the person
           that by consenting to and receiving a stay
           of entry of judgment, the person waives the
           right to appeal from the judgment of guilt
           by the court at any time.

Md. Code Art. 27, § 641(a) (emphasis added) (amended 2001).

     Pursuant to the statute, when a person pleads not guilty, as

Dossola did, a Maryland judge may impose the remedy of probation

before judgment only if the judge finds that person "is . . .

guilty of an offense" and the judge makes a "determination of

guilt."   Md. Code Art. 27, § 641(a)(1)(i)1.   Upon her review of

the statute, the trial judge determined that the Maryland judge

was required to find that Dossola had committed acts sufficient

                               - 5 -
to justify a conviction of criminal trespass before the judge

could order probation.   In the absence of contrary evidence, the

trial judge did not err in concluding that the Maryland judge

obeyed the law in his disposition of the case.     See Hinderliter

v. Humphries, 224 Va. 439, 448, 297 S.E.2d 684, 689 (1982)

(noting "a presumption that public officials will obey the law"

in the performance of their official duties).    Thus, we hold that

the evidence provided an adequate basis for the trial judge to

infer that the Maryland judge found Dossola had committed acts

sufficient to constitute criminal trespass.
     Dossola additionally contends that because he fulfilled the

conditions imposed upon him by the Maryland judge, the Maryland

statute prevents consideration of any results of proceeding under

the statute.   We do not read the statute so broadly.   Although

the statute expressly provides that "[d]ischarge of a person

under this section shall be without judgment of conviction and is

not a conviction for purposes of any disqualification or

disability imposed by law because of conviction of crime," Md.

Code Art. 27, § 641(a)(5)(c), that limitation does not void, ab
initio, every incidence of the proceeding.

     The trial judge did not consider the Maryland order to be a

criminal conviction or evidence of a conviction.    Instead, she

found that the statutory remedy of probation before judgment was

only available by operation of Maryland law upon a finding by a

Maryland judge that the defendant engaged in conduct that would

be sufficient to support a conviction.   This finding, she

concluded, was sufficient to support a finding of a lack of "good

behavior."


                               - 6 -
     Under Virginia law, a probation revocation for a failure of

good behavior may be supported by "substantial misconduct not

involving violation of law."     Holden, 27 Va. App. at 44, 494

S.E.2d at 495.     See also Marshall v. Commonwealth, 202 Va. 217,

221-22, 116 S.E.2d 270, 274 (1960) (noting that a defendant's

conduct, as proved in the trial in which a jury acquitted the

defendant, may be used to support a revocation for failure to be

of good behavior).    The trial judge's finding of a probation

violation is "reversible only upon a clear showing of an abuse of

discretion."     Slayton, 185 Va. at 367, 38 S.E.2d at 484.   We hold

the evidence was sufficient to support the trial judge's finding

that during the period of probation Dossola engaged in conduct

which violated the condition of good behavior.    Therefore, the

trial judge did not abuse her discretion in




                                 - 7 -
entering the judgment.   For these reasons, we affirm the

judgment.

                                                       Affirmed.




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