                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Huff, AtLee and Malveaux
UNPUBLISHED


              Argued at Fredericksburg, Virginia


              GALEN MICHAEL BAUGHMAN
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0346-18-4                                      JUDGE GLEN A. HUFF
                                                                                DECEMBER 17, 2019
              COMMONWEALTH OF VIRGINIA


                                  FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                                               Daniel S. Fiore, II, Judge

                               Zachary C. Schauf (David A. Handzo; Michael K. Lowman;
                               Jenner & Block LLP; Smith Pachter McWhorter PLC, on briefs),
                               for appellant.

                               Katherine Quinlan Adelfio, Assistant Attorney General (Mark R.
                               Herring, Attorney General; Elizabeth Kiernan Fitzgerald, Assistant
                               Attorney General, on brief), for appellee.


                     Galen Michael Baughman (“appellant”) appeals a series of probation conditions imposed

              by the Circuit Court for Arlington County after he violated his original probation conditions.

              Specifically, appellant challenges the conditions which require that appellant “remain on

              supervision for the rest of his life” and forbid him from any “personal internet use.”

                     Appellant raises three assignments of error. First, he asserts that the trial court erred in

              imposing a lifetime ban on appellant’s personal internet use in violation of the First Amendment

              as interpreted by the Supreme Court of the United States in Packingham v. North Carolina.

              Second, appellant argues that the trial court lacked jurisdiction to increase the period of

              suspension beyond that set when appellant originally was sentenced in 2004. Third, appellant

              argues that the trial court abused its discretion by sentencing appellant to lifetime probation


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
accompanied with various probation conditions based upon the conclusion that appellant was

“grooming” a sixteen-year-old young man for future sexual conduct.

       This Court disagrees. First, appellant failed to present his First Amendment challenge to

the trial court. He has thus waived the challenge under Rule 5A:18. Second, the trial court has

the authority to reset the terms of suspension and probation to whatever is reasonable under the

circumstances when it revokes the suspension of a sentence and re-suspends some or all of the

sentence. Thus, the trial court was not bound by the period of suspension set at appellant’s

original sentencing. Finally, the trial court did not abuse its discretion in placing appellant on

probation for the rest of his life when it found that appellant had begun grooming another minor

for sexual activity. That finding is supported by the record, and this Court will not disturb it on

appeal. Therefore, this Court affirms.

                                         I. BACKGROUND

       “This Court considers ‘the evidence presented at trial in the light most favorable to the

Commonwealth, the prevailing party below.’” Hawkins v. Commonwealth, 64 Va. App. 650,

652 (2015) (quoting Bolden v. Commonwealth, 275 Va. 144, 148 (2008)). So viewed, the

evidence is as follows:

       On November 13, 2003, appellant pled guilty to aggravated sexual battery of a child less

than thirteen years old, in violation of Code § 18.2-67.3, and carnal knowledge of a child

between the ages of thirteen and fifteen years old, in violation of Code § 18.2-63. For the

aggravated sexual battery conviction, appellant was sentenced to twenty years’ incarceration

with thirteen years suspended; for the carnal knowledge conviction, appellant was sentenced to

ten years’ incarceration with three years suspended. The sentences were to run concurrently.

The circuit court imposed a ten-year period of suspension, which included a condition of




                                                -2-
supervised release that prohibited appellant from having “unsupervised contact with any males or

females under the age of (18), unless approved by his [probation officer].”

       On February 18, 2015, while still on supervised release, appellant requested permission

from his probation officer, Lynn McCardle, to travel to Minnesota to stay with and visit some

family friends of his, the “F” family. In that request, appellant clarified that a sixteen-year-old

minor member of the family, B.F., would be present on that trip, and appellant requested

permission to have contact with that minor. McCardle gave appellant permission for contact

with B.F. so long as “an adult [was] present.”

       After his February trip to Minnesota, appellant learned that B.F. had passed away as a

result of an accident on August 23, 2015. Appellant asked permission from McCardle to attend

B.F.’s funeral, which was to take place on August 29, 2015, and informed McCardle that there

“would be other teenage boys” at the funeral. McCardle granted appellant’s request, and

re-emphasized that appellant should not “leave [himself] alone in situations with minors” and

directed appellant to “ensure that there is another adult around . . . so that no one could level any

allegations.”

       At the funeral, appellant met B.F.’s best friend, a then-sixteen-year-old boy, P.D.

“[E]xcited about finding someone who would talk to him about B.F. and tell him things about

B.F.,” P.D. talked with appellant “at length” while appellant was in Minnesota. After leaving

Minnesota, appellant maintained consistent communication with P.D. by way of text and phone

conversations. He did not disclose those conversations to McCardle or receive permission from

him to communicate with P.D.

       After several months of communication between appellant and P.D., P.D.’s mother went

through P.D.’s cell phone and discovered the conversations between appellant and her son.

Concerned about the nature of these conversations and believing that appellant was “taking

                                                 -3-
advantage of her son’s emotional situation regarding [B.F.’s] death,” P.D.’s mother immediately

contacted the Virginia State Police and McCardle to report appellant’s conduct. From the

months of January through April of 2016, P.D.’s mother cooperated with McCardle and provided

relevant information in preparation for a major violation report that was submitted on April 8,

2017.

        Based on the major violation report, a revocation hearing was held at the trial court on

November 21, 2016. The primary focus of the hearing was whether appellant had “groomed”

P.D. Both the Commonwealth and appellant called experts on the subject. Both generally

agreed that “grooming” is the “methodology” by which a sex offender “establish[es]

relationships with minors for the purpose of establishing a sexual relationship,” which typically

involves “befriending and establishing [an] emotional connection with a child or . . . the child’s

family in order to gain trust and lower the inhibitions of the child for sexual gratification.”

        The Commonwealth’s expert opined that appellant’s communications with P.D.

demonstrated grooming. For example, appellant repeatedly made positive comments on the

attractiveness of P.D., discussed the close “bond[s]” that he had with other minors, and even

encouraged P.D. to use social media applications for conversations that could not be tracked by

law enforcement or P.D.’s family:

               [By the way], you know to use Kik or Snap[chat] for the
               conversations you don’t want to be seen, right? Even if you delete
               your texts the service provider (Verizon, AT&T, etc, [sic] can still
               provide a detailed log to the cops – or your parents who can be
               almost as bad!

        Appellant’s expert, Dr. Fred Berlin, testified grooming is a three-step process: “step one”

referred to the establishment of a “relationship of trust” with the minor; “step two” referred to

gauging the minor’s interest in a sexual relationship; and “step three” referred to additional

efforts by the groomer to turn his or her relationship with the minor “into a sexualized


                                                 -4-
relationship.” Dr. Berlin ultimately testified that, in his expert opinion, appellant had no

intention of turning the relationship sexual—i.e., was not grooming P.D. Although Dr. Berlin

agreed that appellant’s conduct could have been interpreted to have constituted “step one” of the

grooming process, he also believed that appellant’s conduct could have been interpreted as

ordinary conduct that “anyone who has a genuine concern in a child might have.” The trial court

found appellant violated the terms of his probation by having unauthorized contact with a minor,

P.D.

       On January 6, 2017, at the sentencing hearing for the probation violation, the trial

court—based on the methodology proffered by Dr. Berlin—determined that appellant

“sufficiently completed the first step of the grooming process” when he violated his probation

conditions through his communications with P.D. Accordingly, the trial court revoked

appellant’s probation and the suspension of his sentences. The trial court required appellant to

serve one year in addition to the time served and re-suspended the balance of his sentence.

Concerned with the nature of appellant’s probation violation—that appellant “groomed”

P.D.—the trial court placed appellant on indefinite probation and, as one of the conditions of that

probation, required appellant to have “no personal internet use.”

       In his pre-sentencing memorandum, appellant had suggested such a condition:

“[Appellant] makes no request for personal internet use whatsoever, or possession of devices that

access the internet. [Appellant] would only ask permission to use the internet for work purposes

on work devices.” When the trial court imposed the condition as part of lifetime probation,

appellant did not object or move for reconsideration. This appeal followed.

                                  II. STANDARD OF REVIEW

       This Court reviews probation terms and conditions for abuse of discretion. Murry v.

Commonwealth, 288 Va. 117, 122 (2014). A trial court abuses its discretion “when a relevant

                                                -5-
factor that should have been given significant weight is not considered; when an irrelevant or

improper factor is considered and given significant weight; [or] when all proper factors, and no

improper ones, are considered, but the court, in weighing those factors, commits a clear error of

judgment.” Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 352 (2011)

(internal quotation marks omitted). However, to the extent that a review of the trial court’s

imposed probation conditions involves pure questions of law, those questions are reviewed de

novo. Montgomery County v. Virginia Dept. of Rail and Public Transp., 282 Va. 422, 435

(2011); see also Porter v. Commonwealth, 276 Va. 203, 260 (2008) (“‘[A trial] court by

definition abuses its discretion when it makes an error of law.’” (quoting Koon v. United States,

518 U.S. 81, 100 (1996))); Shivaee v. Commonwealth, 270 Va. 112, 119 (2005)

(“[C]onstitutional arguments are questions of law that we review de novo.”). Moreover, “the

‘authority of the trial court to revoke [an] appellant’s suspended sentence is one of statutory

interpretation and presents a pure question of law, which this Court reviews de novo.’” Green v.

Commonwealth, 69 Va. App. 99, 103 (2018) (quoting Wilson v. Commonwealth, 67 Va. App.

82, 88-89 (2016)).

                            III. FIRST AMENDMENT CHALLENGE

       In his first assignment of error, appellant contends that the condition prohibiting him

from using the internet for personal purposes violates his First Amendment rights. Specifically,

he contends that Packingham v. North Carolina, 137 S. Ct. 1730 (2017), holds that convicted

sex-offenders have a First Amendment right to access the internet and banning him from all

personal use violates that principle.

       Appellant failed to raise this issue with the trial court. Rule 5A:18 provides that “No

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

                                                 -6-
attain the ends of justice.” “Rule 5A:18 applies to bar even constitutional claims.” Ohree v.

Commonwealth, 26 Va. App. 299, 308 (1998). In order to preserve an issue for appeal, “an

objection must be timely made and the grounds stated with specificity.” McDuffie v.

Commonwealth, 49 Va. App. 170, 177 (2006) (quoting Marlowe v. Commonwealth, 2 Va. App.

619, 621 (1986)).

       Appellant acknowledges that he did not raise his First Amendment claim in the trial

court. He argues that this Court should nevertheless consider his claim under either the “good

cause” or “ends of justice” exceptions to 5A:18.1

       First, the “good cause” exception is inapplicable here. “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, 667-68 (2011)

(quoting Luck v. Commonwealth, 32 Va. App. 827, 834 (2000)). Appellant asserts that because

Packingham had not been decided when the trial court imposed the condition forbidding personal

internet use, “good cause” excuses his failure to raise the issue. Although Packingham had not

been decided, appellant still could have raised an objection to the imposition of the probation

condition forbidding personal internet use. The Supreme Court has required litigants to raise a

general principle to preserve an issue even when new law significantly changes the analysis.

See, e.g., McGhee v. Commonwealth, 280 Va. 620, 625 (2010) (“McGhee cannot invoke


       1
         Appellant also argues that others have a First Amendment right to hear what he has to
say and to communicate with him. He argues that he cannot waive the First Amendment rights
of others. Although he may be correct in the abstract that the First Amendment rights of others
are implicated by the restriction on his internet use, this Court need not decide that question.
This Court concludes that he does not have standing to assert the First Amendment rights of
others when he has waived his own First Amendment right. Cf. McCoy v. Commonwealth, 2
Va. App. 309, 311 (1986) (“Fourth Amendment rights are personal rights which . . . may not be
vicariously asserted.” (quoting Alderman v. United States, 394 U.S. 165, 174 (1969))).

                                               -7-
[Arizona v.] Gant[, 556 U.S. 332 (2009),] on appeal when he did not object to the search incident

to arrest below.”).

       Further, appellant suggested the condition.2 Appellant claims that his willingness to

submit to the internet use restriction, when he had no reason to believe it would be lifelong,3 is

qualitatively different than a lifelong prohibition. Even if that were true, appellant had the

opportunity to object at the end of the hearing where the trial court announced it was imposing

the condition as a part of lifelong probation. Moreover, appellant could have moved for

reconsideration at any time between the hearing of January 6, 2017 and the time when the trial

court’s orders became final twenty-one days after their issuance. Cf. Simmers v.

Commonwealth, 11 Va. App. 375, 377 (1990) (“At sentencing Simmers did not object to the

conditions placed on his suspended sentence. Further, he made no motion within twenty-one

days of sentencing that the provisions be vacated, nor did he note an appeal from the decision of

the trial court. . . . [Therefore] he cannot prevail on appeal unless the trial court either lacked

jurisdiction or imposed a sentence greater than that authorized by law.”). Thus, appellant had the

opportunity to object to the probation condition as a violation of his First Amendment rights, and

failed to do so.4 The “good cause” exception to Rule 5A:18 does not apply.


       2
         Because this Court concludes that appellant failed to preserve the issue under Rule
5A:18, this Court need not decide whether appellant invited the error by suggesting the probation
condition under the mistaken belief that probation would expire in only a few years.
       3
           At the violation hearing—several months before appellant submitted his presentencing
memorandum suggesting the internet restriction—the Commonwealth suggested that appellant
“needs to be watched for every day, and week, and second, and month, and year for the rest of
his life.”
       4
          Moreover, the restriction on using the internet is a condition of appellant’s probation.
Thus, under Code § 19.2-304, the trial court has the authority to modify the condition. The
Commonwealth conceded at oral argument that appellant could move to modify the condition
restricting his internet use based on the development of the law under Packingham. Thus,
despite his initial failure to object to the condition, he is not without a means by which to pursue

                                                 -8-
          Second, the “ends of justice” exception is likewise inapplicable. “On appeal, a litigant

may avail himself of the ends of justice exception and raise an unpreserved issue if the trial

court’s error ‘was “clear, substantial and material.”’” Mohamed v. Commonwealth, 56 Va. App.

95, 102 (2010) (quoting West v. Commonwealth, 43 Va. App. 327, 338 (2004)). “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)). “Application of the ends of justice exception is

appropriate when the judgment of the trial court was error and application of the exception is

necessary to avoid a grave injustice or the denial of essential rights.” Brown v. Commonwealth,

279 Va. 210, 219-20 (2010) (quoting Charles v. Commonwealth, 270 Va. 14, 17 (2005)). “In

order to avail oneself of the exception, a defendant 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). “[A] manifest injustice occurs when a defendant receives a

sentence beyond the power of a court to pronounce.” Commonwealth v. Bass, 292 Va. 19, 30

(2016).

          Appellant contends that a total ban on personal internet use was beyond the authority of

the trial court. Thus, he contends, the ends of justice exception permits him to raise the issue for

the first time on appeal, even though he never objected to the probation condition. This Court

disagrees.

          “‘Inherent in the very nature of probation is that probationers “do not enjoy the absolute

liberty to which every citizen is entitled,”’ ‘but only . . . conditional liberty properly dependent

on observance of [probation conditions].’” Fazili v. Commonwealth, ____ Va. App. ____, ____




relief. Nevertheless, he must begin by presenting the issue first to the trial court for its
resolution.
                                               -9-
(Dec. 3, 2019) (alterations in original) (quoting United States v. Knights, 534 U.S. 112, 119

(2001), and Morrissey v. Brewer, 408 U.S. 471, 480 (1972)). Nevertheless, even probationers

retain a First Amendment interest in accessing the internet. Id. at ____. The trial court may only

restrict that right to the extent that a “probation condition is narrowly tailored to effectuate either

rehabilitative or public-safety purposes.” Id. at ____ (citing Packingham, 137 S. Ct. at 1737).

Significantly, however, nothing in Fazili or Packingham suggests that a probation condition

prohibiting all internet use could not be justified in some circumstances. Id. at ____ (“We do not

foreclose the possibility that such a broad restriction on access to the internet could be justified in

a particular case.”).

        Thus, a probation condition prohibiting any internet use is not “beyond the power of a

court to pronounce,” even if such a condition may be unjustified in many instances. If the “ends

of justice” exception permitted this Court to consider any argument that a probation condition is

unjustified in a specific case, despite the trial court having authority to impose it when justified

by the facts, the “ends of justice” exception “would obviate the requirement for making an

adequate motion to strike or a contemporaneous objection.” Redman, 25 Va. App. at 221.

Therefore, appellant has failed to demonstrate a miscarriage of justice has occurred and this

Court will not apply the “ends of justice” exception to Rule 5A:18. If appellant had presented

the trial court with his arguments regarding the expansive nature of the restriction on his internet

use, the trial court could have tailored the condition to fit appellant. Martin v. Commonwealth,

13 Va. App. 524, 530 (1992) (en banc) (“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.”). He did not.

He, therefore, waived his First Amendment challenge to the probation condition.




                                                 - 10 -
                       IV. AUTHORITY FOR LIFETIME PROBATION

       In his second assignment of error, appellant asserts that the trial court erred in placing

him on probation for the remainder of his life because the trial court did not also extend the

suspension of his sentence.5 He claims that probation cannot extend beyond the period of

suspension. Moreover, he argues, even if the trial court did extend the suspension of his

sentence, it did not have the authority to do so because Code §§ 19.2-303.1 and 19.2-303 only

allow setting the period of suspension at a defendant’s original sentencing. He also argues that

this Court’s decisions in Reinke v. Commonwealth, 51 Va. App. 357 (2008), and Canty v.

Commonwealth, 57 Va. App. 171 (2010), forbid a trial court, during a revocation proceeding,

from “extend[ing] . . . the length of the period of suspension.” Canty, 57 Va. App. at 179 n.9

(quoting Reinke, 51 Va. App. at 368).

       Appellant’s arguments ignore a critical provision in Code § 19.2-306 and rely on dicta

from Reinke, quoted by further dicta in Canty, that is in direct contravention of the holdings of

several other decisions of this Court. Moreover, both of appellant’s arguments—that the trial

court did not extend the period of the suspension and, even if it did, it did not have the authority

to do so—rest on a fundamental misunderstanding about the nature of the suspension of a

sentence. Thus, it is necessary to begin with a brief explanation of the suspension of sentences

before delving into the specifics of each of his arguments.




       5
         The Commonwealth contends that appellant failed to preserve this assignment of error.
Because analysis of the preservation of this issue is complicated by appellant’s invocation of the
“end of justice” exception to 5A:18, this Court concludes that resolving this issue on the merits is
the “narrowest and best ground” for resolving this issue. Harvey v. Commonwealth, 65
Va. App. 280, 285 n.2 (2015) (holding this Court may resolve a case on the merits when it
concludes “resolving the merits of the question presented constitutes the narrowest and best
ground” for the decision).
                                               - 11 -
                                   A. Suspension of Sentences

       Code § 19.2-303 permits a trial court, when originally imposing a sentence, to “suspend

the sentence in whole or part . . . under terms and conditions which shall be entered in writing by

the court.” When a trial court suspends all or part of a sentence—especially in connection with

probation—it is an “act of grace.” Hunter v. Commonwealth, 56 Va. App. 582, 587 (2010)

(quoting Price v. Commonwealth, 51 Va. App. 443, 448 (2008)). The defendant is relieved from

serving all or part of his sentence but is subjected to conditions designed to rehabilitate him. See

Pierce v. Commonwealth, 48 Va. App. 660, 667 (2006). The suspended sentence remains

available to be imposed as a “real consequence[]” of violating the conditions of probation or the

conditions of the suspension of the sentence. Price, 51 Va. App. at 449. Furthermore, and key to

this case, the trial court may set the period of suspension of the sentence—i.e., how long the

defendant must comply with the conditions or face imposition of the suspended sentence—“for a

reasonable time, having due regard to the gravity of the offense, without regard to the maximum

period for which the defendant might have been sentenced.” Code § 19.2-303.1.

       When the trial court finds a defendant in violation of the terms of the suspension of his

sentence it “revoke[s] the suspension of sentence.” Code § 19.2-306(A). In plainer terms, the

suspension of the sentence—including the term and conditions of suspension—no longer exists,

and the entire remainder of the original sentence is imposed by operation of law.

       If the trial court wishes to require a defendant to serve only a portion of the outstanding

sentence, the trial “court may again suspend all or any part of this sentence and may place the

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

sentencing after revocation “is a new sentencing event.” Reinke, 51 Va. App. at 367. Equally

important, the decision to “again” suspend part of the sentence is a new suspension of the

sentence. See Briggs v. Commonwealth, 21 Va. App. 338, 343-44 (1995) (holding that when a

                                               - 12 -
trial court revoked and re-suspended a sentence but did not explicitly set a period of suspension,

the default period of suspension in Code § 19.2-306(A) began running from the date of the

revocation and re-suspension, not the original sentencing); Wright v. Commonwealth, 32

Va. App. 148, 153 (2000) (holding that a trial court that re-suspended a sentence “on the same

terms and conditions” as its original sentencing order created a new five-year suspension of the

sentence rather than a suspension that expired five years from the original sentencing order).

The trial court may choose to impose the same term of suspension and conditions of suspension

that were imposed at the original sentencing, but it is not obligated to do so. If the trial court

imposes the same term and conditions on re-suspension as the original suspension, the trial court

is independently choosing to re-impose the same conditions.6

                                    B. The Trial Court’s Order

       In light of the foregoing framework, appellant’s contention that the trial court erred in

placing him on probation for life because it did not explicitly “extend” the suspension of his

sentence for life is without merit. In a technical sense, a trial court never “extends” the period of

suspension after a revocation. Instead, it independently sets the new period of suspension to

expire at the same time, or a different time, as the prior, now revoked, period of suspension.

Thus, when this Court considers the revocation and re-suspension order, this Court does not read

into the order the previous period of suspension. Here, after revoking the original suspension,

the trial court suspended, without stating the period of suspension, part of the remainder of

appellant’s sentence. It then placed him on probation for the rest of his life. Because probation


       6
         Because all conditions on the suspension of a sentence must be reasonable in light of the
circumstances of the case, the trial court cannot arbitrarily choose drastically different conditions
of suspension without raising the possibility that the conditions are not reasonable. Nevertheless,
the conditions of the new suspension are not derivative of the conditions of the prior suspension
unless the trial court explicitly incorporates the original terms. E.g. Wright, 32 Va. App. at 153
(re-suspending a sentence after revocation “on the same terms and conditions” as the original
sentencing order).
                                                 - 13 -
must be coupled with the suspension of the sentence, see Hartless v. Commonwealth, 29

Va. App. 172, 175 (1999) (“To be effective, probation must be concurrent with a coordinate term

of suspension of sentence.”), the only reasonable interpretation of the trial court’s order is that it

also suspended the remainder of appellant’s sentence for the rest of his life.

                                   C. The Trial Court’s Authority

       Appellant contends that even if the trial court suspended his sentence for life, it was error

for it to do so because the trial court did not have authority to extend the suspension of his

sentence beyond the term set in the original sentencing order. Appellant points to language in

Reinke (also quoted by Canty) stating that a trial court “may not extend . . . the length of the

period of suspension,” even after the revocation of the suspension of a sentence. Appellant

acknowledges that the holdings of Briggs and Wright are directly contrary to his position, but

claims that Reinke and Canty create a direct conflict within this Court’s jurisprudence and the

rule stated by Reinke is more consistent with the statute.

       Appellant’s argument fails for two reasons. The language he cites from Reinke and

Canty is dicta. Moreover, even if there were a conflict, the holdings in Briggs and Wright are

consistent with the statutory scheme.

       1. Reike’s language limiting the extension of the suspension of a sentence is dicta.

       The language appellant relies on from Reinke is dicta. In Reinke, the defendant had been

ordered (with his consent) to pay support to his wife while he was imprisoned as a condition of

the suspension of the remainder of his sentence. The defendant ceased paying after several

years, and the Commonwealth sought to revoke the suspension of the defendant’s sentence. He

asked the trial court to reconsider his sentence and relieve him of the payment obligation. The

trial court concluded it did not have the authority to modify it. This Court affirmed, but only in

part. It held that the trial court did not have the authority to retroactively modify the condition

                                                - 14 -
that appellant pay support. This Court held, however, that the trial court erred in concluding it

did not have authority to modify the support condition prospectively once it had revoked the

initial suspension of appellant’s sentence. This Court noted that when the trial court

re-suspended the sentence it was “a new sentencing event, restricted only by limitations that it

may not extend the length of the original sentence or the length of the period of suspension and,

as is the case with an original suspension, that any conditions of suspension be reasonable.”

Reinke, 51 Va. App. at 367-68. The language that the trial court could not extend “the length of

the period of suspension,” however, was not relevant to the decision. The trial court did not

extend the length of the suspension, and the length of the suspension was not at issue. Thus, the

language that the trial court could not extend the length of the suspension of the sentence was

dicta and is not binding.7

           2. Briggs and Wright explicitly hold a trial court has the authority to extend the
                            suspension of a sentence after a revocation.

       Moreover, both Briggs and Wright explicitly hold that the length of the suspension of a

sentence can be “extended”8 when the suspension is revoked and the sentence is re-suspended.

In Briggs, the trial court suspended the defendant’s sentence; a year and a half later, it revoked

the suspension and re-suspended the sentence. In neither instance did the trial court specify the

length of the suspension of the sentence. When the defendant committed a new offense just shy


       7
          Canty’s quotation of the language from Reinke is likewise dicta. The issue in Canty
was the authority of the trial court to consider misconduct by the defendant—that it had not
previously considered but that had occurred before a revocation and re-suspension—as the basis
for a later revocation. The authority of the trial court to “extend” the suspension was not at issue.
Moreover, immediately after the quotation from Reinke, this Court cited Wright for the
proposition that the trial court had the authority to “extend” the suspension when it revoked and
re-suspended a sentence. Canty, 57 Va. App. at 179 n.9.
       8
         The term “extended” is used in this fashion colloquially by many practitioners, by
appellant, and by Reinke and Wright. In reality, the suspension of a sentence is never extended
because a re-suspension with a new expiration is, by definition, a new sentencing event and a
new suspension.
                                              - 15 -
of ten years later, the trial court again revoked the suspension of his sentence. The defendant

contended the trial court did not have the authority to revoke the suspension. He claimed the

default suspension period under Code § 19.2-306 was measured from his original sentencing and

thus had expired before he committed the offense. This Court rejected his contention. It held

that the default suspension period was measured from the date of the re-suspension and thus the

trial court had authority to revoke the suspension. Briggs, 21 Va. App. at 343-44. The implicit

premise of that conclusion is that the trial court has the authority to set the term of suspension

after revoking a previous suspension of the same sentence.

       Similarly, in Wright, the trial court suspended the defendant’s sentence for five years. It

then twice revoked the suspension and re-suspended portions of the sentence “on the same terms

and conditions,” as the original order. The defendant was convicted of a new crime more than

five years after the original sentencing but less than five years after the most recent revocation

and re-suspension. During the next revocation proceeding, the defendant contended the trial

court did not have the authority to revoke the suspension of his sentence because it had been

more than five years since the first sentencing. This Court again rejected the argument. This

Court held the trial court had intended to set new five-year terms each time it revoked and

re-suspended. This Court also explicitly held that the trial court had the authority to extend the

suspension in this fashion. Wright, 32 Va. App. at 153.

         3. The Code permits a trial court to set, anew, the period of suspension when it
                           re-suspends a sentence after revocation.

       The holdings of Briggs and Wright—that the trial court has the authority to set an entirely

new period of suspension without reference to the expiration of the period of suspension set in

the original sentencing order—is entirely consistent with the statutory scheme for suspension of

sentences.



                                                - 16 -
       Appellant claims that Code § 19.2-303.1 allows the trial court to “fix the period of

suspension” only when the trial court “suspends” the sentence. He argues that the trial court

only has authority to suspend a sentence under Code § 19.2-303 immediately “after conviction.”

Even if Code § 19.2-303 only allows the trial court to suspend a sentence immediately after

conviction, however, Code § 19.2-306(C) allows the trial court to “again suspend” the sentence.

Thus, in a new suspension after the revocation of the suspension of a sentence, Code

§ 19.2-303.1 still applies to allow the trial court to again set the length of the suspension. Thus,

the holdings in Briggs and Wright are consistent with the statute and the trial court had the

authority to suspend appellant’s sentence for the remainder of his life after it revoked the

previous suspension. Therefore, the trial court did not err by concluding it had the authority to

place appellant on probation for the rest of his life.

            V. REASONABLENESS OF PROBATION TERM AND CONDTIONS

       Finally, in his third assignment of error, appellant makes two arguments. He argues that

the trial court erred in finding that he was grooming P.D. He next argues that a lifetime of

probation was not justified under the circumstances of his case. Neither argument has merit.

       First, the trial court’s finding that appellant was grooming P.D. is supported by the

evidence. “The credibility of the witnesses and the weight accorded the evidence are matters

solely for the fact finder who has the opportunity to see and hear that evidence as it is presented.”

Elliott v. Commonwealth, 277 Va. 457, 462 (2009). This Court gives “deference to the fact

finder who, having seen and heard the witnesses, assesses their credibility and weighs their

testimony.” Id. Thus, this Court must accept “the trial court’s determination of the credibility of

witness testimony unless, ‘as a matter of law, the testimony is inherently incredible.’” Nobrega

v. Commonwealth, 271 Va. 508, 518 (2006) (quoting Walker v. Commonwealth, 258 Va. 54,

70-71 (1999)).

                                                 - 17 -
       “The power to segregate a witness’s testimony into the believable, partly believable, or

wholly unbelievable is an exercise of decisional discretion intrinsic to the factfinding task and

essential to its proper performance.” Harper v. Commonwealth, 49 Va. App. 517, 523 (2007).

“Furthermore, a fact finder’s evaluations of credibility are not limited to choosing between

competing accounts offered by different witnesses, but often include, as in this case, resolving

conflicts in a single witness’ testimony, accepting that part of the testimony it deems credible and

rejecting the portion it deems incredible.” Commonwealth v. McNeal, 282 Va. 16, 22 (2011).

       Here, the trial court had sufficient evidence to support its finding that appellant was

grooming P.D. for future sexual activity. The Commonwealth’s expert testified that the text

messages between appellant and P.D. demonstrated appellant was grooming P.D.9 Although

appellant’s expert opined appellant was not grooming P.D., he agreed that appellant’s conduct

could have been the first step and that at least some of appellant’s text messages to P.D. were

inappropriate, such as the message encouraging P.D. to use untraceable messaging apps to hide

his conversations from his parents. Moreover, the trial court had the text message before it.

There was sufficient evidence to accept Dr. Berlin’s opinion that appellant’s conversations fit

within step one of the grooming process and reject his ultimate conclusion that appellant was not

grooming P.D. Thus, the evidence supports the trial court’s factual finding that appellant was

grooming P.D., and this Court will not disturb that finding on appeal.




       9
          Appellant claims the trial court rejected the Commonwealth’s expert’s testimony and
thus that testimony cannot support the finding that appellant was grooming P.D. The trial court,
however, did not reject the Commonwealth’s expert testimony. It found it unnecessary to rely on
the Commonwealth’s expert because it found appellant’s expert testimony sufficient to find
appellant was grooming P.D. Because the trial court did not explicitly find the Commonwealth’s
expert incredible, this Court can rely on his testimony as evidence to support a finding appellant
was grooming P.D. Perry v. Commonwealth, 280 Va. 572, 580 (2010) (“[A]n appellate court’s
‘examination is not limited to the evidence mentioned by a party in trial argument or by the trial
court in its ruling.’” (quoting Bolden v. Commonwealth, 275 Va. 144, 147 (2008))).
                                                 - 18 -
       Second, the trial court could properly conclude that lifetime probation with the conditions

it imposed was reasonable in light of the circumstance. “The sole statutory limitation placed

upon a trial court’s discretion in its determination of such conditions is one of reasonableness.”

Anderson v. Commonwealth, 256 Va. 580, 585 (1998). “Probation conditions must be

reasonable in light of the nature of the offense, the defendant’s background, and the surrounding

circumstances.” Murry v. Commonwealth, 288 Va. 117, 122 (2014).

       Appellant contends that the Supreme Court’s decision in Murry, 288 Va. at 130,

necessitates reversal of appellant’s lifetime probation. In Murry, at the defendant’s initial

sentencing after conviction for the rape of his stepdaughter, the trial court placed the defendant

on probation for the rest of his life. It found the defendant had been grooming his stepdaughter

for years and concealing it from the rest of his family. One of the conditions of probation was

that he submit to any search demanded by his probation officer or law enforcement, even if the

demand was not based on any individualized suspicion. The Supreme Court held that as a “total

surrender of [the defendant’s] Fourth Amendment Rights,” the condition was not “necessary to

facilitate his rehabilitation and protect the public.” Id. at 127-28. Tellingly, however, the

Supreme Court discussed how a narrower search provision might have been justified and did not

hold that lifetime probation was unjustified under the circumstances.

       Although appellant discusses how the conditions of his probation impact his

constitutional rights, he only requests this Court reverse the trial court’s imposition of lifetime

probation, not any of the specific conditions.10 Thus, this Court need only examine the

limitations of appellant’s rights to the extent that the conditions make lifetime probation

unreasonable. Here, the trial court’s imposition of lifetime probation was justified.



       10
         Appellant does challenge the personal internet use condition, but as noted earlier, he
has waived his challenge to that specific condition by failing to raise it in the trial court.
                                              - 19 -
       First, unlike in Murry, the trial court did not impose lifetime probation at the initial

sentencing. Although both the defendant in Murry and appellant were convicted of sexually

abusing minors, here, the trial court only imposed lifetime probation after appellant violated the

conditions of his original probation by grooming another minor. Second, although appellant’s

privacy, associational, and travel rights may be restricted to some degree, none of the conditions

appellant complains of result in the “total surrender” of a constitutional right. Finally, although

the Supreme Court in Murry invalidated the search waiver condition, it did not hold that

imposing lifetime probation on the defendant was improper.

       Here, where appellant was convicted of sexually abusing minors and had prolonged

unauthorized contact with another minor whom the trial court found was being groomed,11 the

trial court did not abuse its discretion in determining appellant needed to be supervised for the

remainder of his life.

                                        VI. CONCLUSION

       First, appellant waived his First Amendment challenge to the probation condition

restricting his internet use. He failed to raise the issue in the trial court, and Rule 5A:18 now

bars its consideration by this Court.

       Second, the trial court had the authority to place appellant on probation for the rest of his

life. The trial court implicitly suspended appellant’s sentence for the remainder of his life when

it placed him on probation indefinitely. The trial court had authority to do so because a



       11
           Appellant repeatedly argues that the trial court erred in taking into account the
grooming because P.D. was sixteen years old and therefore above the age of consent in
Minnesota where he lives. Regardless of whether P.D. was above the age of consent in
Minnesota, the trial court could reasonably conclude that grooming P.D. was inappropriate and
justified further monitoring through probation. Appellant claims that even if the “grooming” led
to sexual activity, it would not have been the “new offense” the trial court was concerned about.
This ignores the fact that if appellant’s grooming of P.D. led him to sexual activity in Virginia, it
would be criminal. See Code § 18.2-371.
                                                - 20 -
re-suspension of a sentence after the revocation of a previous suspension is a new suspension,

and the period of the new suspension is not restricted by the period of a previous suspension.

       Third, the decision to place appellant on probation for life was reasonable and not an

abuse of discretion when the trial court found, with sufficient support in the record, that appellant

had been grooming another minor for sexual activity.

       Therefore, this Court affirms.

                                                                                          Affirmed.




                                               - 21 -
