                                               COURT OF APPEALS OF VIRGINIA


              Present: Judges Huff, O’Brien and Senior Judge Frank
UNPUBLISHED


              Argued by teleconference


              JOSEPH EDWARD HOBBS
                                                                               MEMORANDUM OPINION* BY
              v.      Record No. 0930-19-1                                    JUDGE MARY GRACE O’BRIEN
                                                                                     MAY 5, 2020
              COMMONWEALTH OF VIRGINIA


                                   FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
                                              Robert H. Sandwich, Jr., Judge

                                Sean E. Harris, Senior Trial Attorney (Office of the Public Defender,
                                on brief), for appellant.

                                (Mark R. Herring, Attorney General; Leah A. Darron, Senior Assistant
                                Attorney General, on brief), for appellee. Appellee submitting on brief.


                      James Edward Hobbs (“appellant”) appeals two orders revoking his suspended sentences

              imposed pursuant to a December 23, 2013 plea agreement. He contends the court erred “by not

              specifically enforcing the plea agreement . . . due to failing to properly interpret” it. Appellant also

              asserts that the court abused its discretion in imposing his sentence.

                                                          BACKGROUND

                      On December 23, 2013, appellant pleaded guilty to two charges of unauthorized use of a

              motor vehicle, in violation of Code § 18.2-102. Appellant had approximately twenty-three previous

              felony convictions. The Circuit Court for the City of Suffolk accepted a plea agreement which

              stated, in pertinent part:

                                1. The defendant stands indicted by the Grand Jury and charged in
                                   this Court with two (2) counts of Unauthorized Use of an
                                   Automobile in violation of Va. Code. Ann. § 18.2-102[].


                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
               2. The defendant agrees to plead guilty and be found guilty of two
                  (2) counts of Unauthorized Use of an Automobile.

               3. The parties agree that the defendant will be sentenced to five (5)
                  years in the Virginia State Penitentiary with five (5) years
                  suspended in CR13001423 and to five (5) years in the Virginia
                  State Penitentiary with four (4) years and six (6) months
                  suspended in CR13001662. The suspended time is suspended
                  upon the following terms and conditions:

                       A. The defendant will be on supervised probation for five
                          (5) years;

                       B. The Commonwealth will not seek a revocation relating
                          to either conviction for Unauthorized Use of an
                          Automobile as contained in CR13001423 and
                          CR13001662; and

                       C. The defendant’s court costs and interest are due and
                          payable on the date that this Court sentences the
                          defendant. If not paid on today’s date, the defendant
                          will pay his court costs within six (6) months through a
                          payment plan with the Suffolk Circuit Court Clerk. The
                          defendant will provide evidence of such payment plan to
                          his probation officer.

The court found appellant guilty of the charges and sentenced him according to the terms of the

agreement.

       In a bench trial on January 22, 2015, the court convicted appellant of a subsequent, unrelated

charge of unauthorized use of a motor vehicle. After the new conviction, appellant’s probation

officer filed a violation report, requesting revocation of the December 2013 suspended sentences.

Appellant moved to “specifically enforce terms of [the December 2013] plea agreement” and

argued that section 3B of the agreement precluded the Commonwealth from requesting revocation

of his suspended time. The court ruled that the language of 3B pertained to “that guilty plea on that

particular day and not necessarily in future events” and denied the motion. The court found

appellant in violation of his probation and revoked and re-suspended his sentences for the two 2013

unauthorized use convictions. The court imposed an additional five-year sentence on the new 2015

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conviction, suspended three years and three months of the sentence, and placed appellant on an

indeterminate period of supervised probation.

        Appellant was released from incarceration on July 27, 2017. On October 22, 2018, his

probation officer filed another violation report. She alleged that appellant tested positive for drugs,

failed to comply with mental health and drug treatment, and took his mother’s car without

permission to “‘leas[e]’ [it] out to random people . . . in exchange for money so he could buy

crack.” The probation officer requested that the court revoke appellant’s previously suspended

sentences. The court issued a capias for appellant.

        After his arrest, appellant again moved to dismiss the violation on the ground that the

Commonwealth’s attempt to revoke his previously suspended sentences from 2013 violated section

3B of his plea agreement. The Commonwealth responded that the principles of res judicata and

collateral estoppel barred the court from hearing the motion, but the court disagreed. However, it

denied appellant’s motion to dismiss on the same ground upon which it denied his 2015 motion.

        Appellant testified at the May 10, 2019 revocation hearing. He admitted that he had a

long-term cocaine addiction and stated that he made a promise to his mother, who died while he was

incarcerated, that he would stop using the drug. The court found appellant in violation of probation

and acknowledged his struggle with drugs, stating that appellant had a “serious, serious drug

problem that needs to be addressed.” The court revoked the sentences from the two 2013

convictions, which totaled nine years and six months, and resuspended six years. The court also

revoked the three-year and three-month sentence from 2015 and resuspended it entirely. Finally, on

all charges the court ordered that appellant’s incarceration be spent in a therapeutic community and

that he complete three years of probation upon his release.




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                                            ANALYSIS

                                  A. Plea Agreement Interpretation

       Appellant asserts that the court erroneously interpreted his 2013 plea agreement. Appellate

courts review a trial court’s interpretation of a plea agreement de novo. Hood v. Commonwealth,

269 Va. 176, 181 (2005). Plea agreements accepted by the trial court pursuant to Rule 3A:8 are

generally treated as “binding contracts.” Griffin v. Commonwealth, 65 Va. App. 714, 718 (2016).

Therefore, we apply the law of contracts to plea agreements subject to any applicable constitutional

considerations. See Wright v. Commonwealth, 275 Va. 77, 80-82 (2008); Esparza v.

Commonwealth, 29 Va. App. 600, 606 (1999).

       “When a contract is clear and unambiguous, it is [an appellate] court’s duty to interpret the

contract, as written,” and to give each provision its plain meaning. Palmer & Palmer Co., LLC v.

Waterfront Marine Constr., Inc., 276 Va. 285, 289 (2008). “The guiding light in the construction of

a contract is the intention of the parties as expressed by them in the words they have used, and

courts are bound to say that the parties intended what the written instrument plainly declares.” W.F.

Magann Corp. v. Virginia-Carolina Elec. Works, Inc., 203 Va. 259, 264 (1962).

       “The language of a contract is ambiguous if ‘it may be understood in more than one way or

when it refers to two or more things at the same time.’” Video Zone, Inc. v. KF & F Props., L.C.,

267 Va. 621, 625 (2004) (quoting Eure v. Norfolk Shipbuilding & Drydock Corp., 263 Va. 624, 632

(2002)). “Such an ambiguity, if it exists, must appear on the face of the instrument.” Id. at 626.

“The contract must be read as a single document. Its meaning is to be gathered from all its

associated parts assembled as the unitary expression of the agreement of the parties.” Berry v.

Klinger, 225 Va. 201, 208 (1983).

       Appellant and the Commonwealth agree that the plea agreement is unambiguous, although

they have conflicting interpretations of section 3B. This disagreement alone does not necessarily

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render the contract ambiguous. See Erie Ins. Exch. v. EPC MD 15, LLC, 297 Va. 21, 29-30 (2019).

“The fact that one may hypothesize ‘opposing interpretations’ of the same contractual provision

does ‘not necessarily render the contract ambiguous’ because ‘[a]s we have often said, “[a] contract

is not ambiguous simply because the parties to the contract disagree about the meaning of its

language.”’” Id. (quoting Babcock & Wilcox Co. v. Areva NP, Inc., 292 Va. 165, 179 (2016)). “In

other words, a contractual term is not ambiguous merely because it is subject to multiple

interpretations when viewed in isolation.” James River Ins. Co. v. Doswell Truck Stop, LLC, 297

Va. 304, 306 (2019). “Rather, a contractual term is ambiguous when it is subject to multiple

interpretations in view of the entire contractual context.” Id.

        Section 3B of the plea agreement provides, “[t]he Commonwealth will not seek a revocation

relating to either conviction for [u]nauthorized [u]se of an [a]utomobile as contained in

CR13001423 and CR13001662.” Appellant argues that this provision prohibits the Commonwealth

from seeking to revoke his suspended sentences on the 2013 unauthorized use charges for any

prospective probation violation. The Commonwealth responds that appellant’s argument construes

section 3B in isolation, which renders other sections of the agreement meaningless.

        In its entirety, section 3 sets out appellant’s sentence for the 2013 unauthorized use

convictions and the terms and conditions upon which his sentences were suspended. The first

subsection, 3A, provides that appellant will be placed on five years of supervised probation.

Subsection 3B addresses probation revocations. Subsection 3C discusses the payment of court costs

related to appellant’s convictions.

        Considering section 3 in its totality, and in context of the plea agreement as a whole, it is

evident that subsection 3A relates to appellant’s prospective responsibility to comply with

probation. Subsection 3B refers to appellant’s retroactive liability for other charges that he was

already on probation for when he pleaded guilty in 2013 to the two unauthorized use charges.

                                                  -5-
       Appellant’s interpretation of subsection 3B renders the court’s suspended sentences and

period of probation from the 2013 convictions meaningless. See TM Delmarva Power, L.L.C. v.

NCP of Va., L.L.C., 263 Va. 116, 121 (2002) (“[W]e will not treat a contract provision as

meaningless when a reasonable meaning can be given to it.”). Without the authority to revoke

appellant’s sentence, the court would lack a mechanism to enforce probation and the attendant

suspended time would be meaningless. See Hartless v. Commonwealth, 29 Va. App. 172, 175

(1999) (“A court’s ability to revoke the suspension of a sentence and to impose that sentence

permits it to enforce a probationary requirement as a condition of suspension.”). See also

McFarland v. Commonwealth, 39 Va. App. 511, 516 (2002). Therefore, the court properly

interpreted the plea agreement to allow the Commonwealth to seek prospective probation violations

as a result of appellant’s 2013 convictions for unauthorized use of a motor vehicle.

                                  B. Probation Violation Sentences

       Appellant also asserts that the court erred in sentencing him to serve a total of three years

and six months of incarceration on the three probation violation charges. A decision to revoke a

suspended sentence “lies within the sound discretion of the trial court.” Singleton v.

Commonwealth, 11 Va. App. 575, 580 (1991). We will not reverse a court’s decision “unless there

is a clear showing of abuse of discretion.” Jacobs v. Commonwealth, 61 Va. App. 529, 535 (2013)

(quoting Davis v. Commonwealth, 12 Va. App. 81, 86 (1991)).

       Appellant concedes that he failed to preserve this issue, but he argues that “[p]ursuant to the

good cause and/or ends of justice exception to Rule 5A:18, this appeal should be granted because

the sentence imposed was unnecessarily harsh and cruel.”

       Rule 5A:18 provides, in relevant part, that “[n]o ruling of the trial court . . . will be

considered as a basis for reversal unless an objection was stated with reasonable certainty at the time

of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of

                                                  -6-
justice.” “The purpose of this contemporaneous objection requirement is to allow the trial court a

fair opportunity to resolve the issue at trial, thereby preventing unnecessary appeals and retrials.”

Creamer v. Commonwealth, 64 Va. App. 185, 195 (2015).

        Rule 5A:18 designates exceptions for good cause or to prevent a miscarriage of justice.

“The Court may only invoke the ‘good cause’ exception where an appellant did not have the

opportunity to object to a ruling in the trial court; however, when an appellant ‘had the opportunity

to object but elected not to do so,’ the exception does not apply.” Perry v. Commonwealth, 58

Va. App. 655, 667 (2011) (quoting Luck v. Commonwealth, 32 Va. App. 827, 834 (2000)). Here,

appellant had “ample opportunity to challenge” the sentences he received from the court and failed

to do so; thus, the good cause exception to Rule 5A:18 does not apply. Flanagan v.

Commonwealth, 58 Va. App. 681, 694 (2011).

        “The ‘ends of justice’ exception to Rule 5A:18 is ‘narrow and is to be used sparingly.’”

Pearce v. Commonwealth, 53 Va. App. 113, 123 (2008) (quoting Bazemore v. Commonwealth, 42

Va. App. 203, 219 (2004) (en banc)). Whether to apply the ends of justice exception involves two

questions: “(1) whether there is error as contended by the appellant; and (2) whether the failure to

apply the ends of justice provision would result in a grave injustice.” Commonwealth v. Bass, 292

Va. 19, 27 (2016) (quoting Gheorghiu v. Commonwealth, 280 Va. 678, 689 (2010)). 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 (1997).

        If a sentence “is not excessive on its face, ‘[w]e perceive no reason to invoke the “ends of

justice” exception.’” Brittle v. Commonwealth, 54 Va. App. 505, 520 (2009) (quoting Jefferson v.

Commonwealth, 33 Va. App. 230, 239 (2000), aff’d en banc, 35 Va. App. 436 (2001)). After

determining that a defendant violated his probation, a trial court may revoke a previously suspended

sentence “for any cause the court deems sufficient that occurred at any time within the probation

                                                  -7-
period, or within the period of suspension fixed by the court.” Code § 19.2-306(A). The court

“may again suspend all or any part of [the new sentence imposed] and may place the defendant

upon terms and conditions or probation.” Code § 19.2-306(C).

        Here, the court found appellant in violation of his probation on three prior convictions of

unauthorized use of a motor vehicle from 2013 and 2015. Appellant had an extensive criminal

history, continued to engage in the same criminal behavior for which he was originally sentenced in

both 2013 and 2015, and failed to comply with mental health and drug treatment. After finding

appellant violated probation, the court was entitled to impose the entirety of appellant’s suspended

sentences totaling twelve years and nine months. See Alsberry v. Commonwealth, 39 Va. App.

314, 320 (2002) (“When a defendant fails to comply with the terms and conditions of a suspended

sentence, the trial court has the power to revoke the suspension of the sentence in whole or in

part.”). Its decision to impose a third of that time, amounting to a total active sentence of three years

and six months, and to resuspend the remaining time, was not excessive on its face. See Brittle, 54

Va. App. at 520 (affirming the court’s imposition of a five-year sentence with three years suspended

for third offense larceny, punishable by no less than one year and no more than five years, because

the sentence was “not excessive on its face”). We find that appellant did not affirmatively show that

a miscarriage of justice occurred. Therefore, appellant’s failure to preserve this issue under Rule

5A:18 precludes our review of this issue on appeal.

                                           CONCLUSION

        For the foregoing reasons, we affirm the court’s orders finding appellant in violation of

probation from the 2013 unauthorized use charges and sentencing him to serve three years and six

months for three charges of violating probation.

                                                                                              Affirmed.




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