                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Beales and McCullough
UNPUBLISHED


              Argued at Alexandria, Virginia


              BERNARD VERNON WEST
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0025-14-4                                 JUDGE STEPHEN R. McCULLOUGH
                                                                                FEBRUARY 10, 2015
              COMMONWEALTH OF VIRGINIA


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

                               Allison H. Carpenter, Senior Assistant Public Defender (Matthew T.
                               Foley, Public Defender; Office of the Public Defender, on briefs), for
                               appellant.

                               Aaron J. Campbell, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     Bernard Vernon West challenges the trial court’s revocation of his suspended sentence on

              several grounds. For the following reasons, we affirm the judgment of the trial court.

                                                        BACKGROUND

                     Appellant pled guilty to three charges of credit card theft, and on October 3, 2006, the

              trial court sentenced him to three concurrent terms of four years’ incarceration with two years

              and eight months suspended. The court also ordered him to submit to supervised probation for

              four years upon release from incarceration.

                     Appellant was released from prison on October 11, 2007. On July 10, 2009, his

              probation officer requested that the court issue a bench warrant for failing to comply with several

              conditions of probation. By order dated December 3, 2009, the court found him guilty of


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
violating the terms of his probation and imposed sixty days of his suspended sentence. The order

specifies that “the Defendant’s probation be extended for a period of one (1) year,” but it did not

state that the court was re-suspending the balance of his suspended sentence.

       On October 20, 2011, appellant’s probation officer informed the court that appellant

failed to pay his court costs. The officer requested that the court schedule a show cause hearing,

and one was scheduled for June 29, 2012. On June 22, 2012, the probation office informed the

court that appellant had been convicted of new crimes in Washington, D.C. On July 26, 2012,

the court entered an order in connection with appellant’s court costs. Appellant had asked the

court to allow him to perform community service hours in lieu of paying court costs. The court

granted the motion and extended appellant’s probation to June 21, 2013. The court continued the

show cause hearing to September 21, 2012.

       On September 18, 2012, the probation office informed the court that appellant had been

sentenced on his drug-related offenses in Washington, D.C. In an addendum dated October 24,

2013, the probation office noted that appellant had also been convicted of attempted armed

robbery on January 10, 2013, in Anne Arundel County, Maryland. By order dated December 2,

2013, the court found appellant guilty of violating the terms of his probation and imposed “the

balance of the time previously suspended.” The court denied appellant’s motion to reconsider

his sentence.

                                            ANALYSIS

       We review de novo the trial court’s authority to revoke a suspended sentence. Hodgins v.

Commonwealth, 61 Va. App. 102, 107, 733 S.E.2d 678, 680 (2012). Appellant assigns two

errors to the judgment below:

                I. The trial court erred in finding West in violation of his probation
                because the period of his sentence suspension ended in October
                2011, before his alleged general good behavior violations occurred,

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               and the trial court accordingly lacked jurisdiction to revoke his
               probation.

               II. The trial court erred in finding West in violation of his
               probation because the trial court lacked the authority to extend
               West’s probation in November 2009, and it accordingly lacked
               jurisdiction to revoke his probation.

       On October 3, 2006, the trial court sentenced appellant to serve three concurrent

sentences of four years in prison with two years and eight months suspended. The court also

placed him on probation for a four-year period, which was to commence upon his release from

incarceration. Appellant was released from incarceration on October 11, 2007. The parties

agree that, without an extension, his suspended sentence would have expired on October 11,

2011. There is no dispute that the trial court had jurisdiction to revoke all or part of his

suspended sentence on December 3, 2009. The parties disagree over what the court actually did

in its December 3, 2009 order. In particular, the parties disagree over the consequence of the

trial court’s failure in that order expressly to re-suspend the previously suspended sentence.

       Appellant argues that trial courts speak through their written orders and that the trial

court’s failure to expressly re-suspend the remaining balance of his suspended sentence in the

order means that the suspended sentence expired long before the trial court entered an order

revoking the balance of appellant’s suspended sentence. He further contends that a period of

probation is distinct from the period under which a sentence is suspended. Accordingly, he

argues, merely extending the period of probation does not extend the time for which the sentence

remains suspended.1

       Our resolution of this issue is controlled by Leitao v. Commonwealth, 39 Va. App. 435,

573 S.E.2d 317 (2002), and Jacobs v. Commonwealth, 61 Va. App. 529, 738 S.E.2d 519 (2013).



       1
         In light of our conclusion, we find it unnecessary to address arguments whether
appellant has (impermissibly) collaterally attacked the December 3, 2009 order.
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Following a probation violation, the trial court in Leitao revoked the defendant’s suspended

sentence and probation, ordered him to serve one year of the original sentence, and placed him

on probation for two years upon his release. 39 Va. App. at 437, 573 S.E.2d at 318. As in the

present case, the trial court’s order did not expressly re-suspend the balance of the defendant’s

sentence. Id. at 437 n.1, 438, 573 S.E.2d at 318 n.1, 318-19. Several years later, when the

defendant was brought before the court for another probation violation, he argued that there was

nothing left of his suspended sentence for the court to revoke. Id. at 437-38, 573 S.E.2d at 318.

We disagreed, concluding that “[t]he absence of an explicit recitation re-suspending the balance

of the original sentence did not implicitly discharge the remaining sentence; it implicitly re-

suspended the balance that the defendant had not served.” Id. at 438, 573 S.E.2d at 319.

       We revisited the issue in Jacobs. As in Leitao, the trial court did not expressly re-suspend

the balance of the remaining available sentence when it found the defendant guilty of violating

the terms of his probation. See Jacobs, 61 Va. App. at 532, 535, 738 S.E.2d at 520, 522. We

held that the “lack of an explicit re-suspension of the balance of the remaining sentence” did not

constitute reversible error. Id. at 535, 738 S.E.2d at 522. It was “evident that the trial court

implicitly interpreted the [earlier] revocation order in its subsequent . . . revocation order,

showing that the trial court actually intended in its [earlier] order to re-suspend the balance of the

remaining available sentence.” Id. at 535-36, 738 S.E.2d at 522. We concluded that, “[a]s in

Leitao, the trial judge here construed its revocation order in the only manner possible – given

that a trial court simply lacks any authority to ‘shorten the original suspended sentence.’” Id. at

536, 738 S.E.2d at 522 (citation omitted).

       A number of important considerations drive our holdings in these cases. First, a

sentence, including a suspended sentence, that has become final remains in effect whether or not

a trial court mentions it in a subsequent order. Id. at 540, 738 S.E.2d at 524 (“It is clear that

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[w]hen a court revokes the suspension of execution of sentence, the original sentence shall be in

full force and effect.” (alteration in original) (quoting Leitao, 39 Va. App. at 438, 573 S.E.2d at

319) (internal quotation marks omitted)). It does not vanish by omission. Second, “probation

depends for enforceability upon the existence of a term of sentence suspension.” Hartless v.

Commonwealth, 29 Va. App. 172, 175, 510 S.E.2d 738, 740 (1999). Therefore, when a trial

court imposes a new term of probation without expressly re-suspending the balance of the

sentence, we do not assume that this act was meaningless. Instead, we presume that the trial

court intended to make the term of probation effective and that it implicitly re-suspended the

balance of the previously suspended sentence. Finally, when coupled with a suspended sentence,

probation represents “an act of grace,” Price v. Commonwealth, 51 Va. App. 443, 448, 658

S.E.2d 700, 703 (2008) (internal quotation marks and citation omitted), which allows the

criminal defendant the opportunity to “repent and reform,” Marshall v. Commonwealth, 202 Va.

217, 219, 116 S.E.2d 270, 273 (1960) (internal quotation marks and citation omitted). Probation

statutes are to “be liberally construed to provide trial courts a valuable tool for rehabilitation of

criminals.” Grant v. Commonwealth, 223 Va. 680, 684, 292 S.E.2d 348, 350 (1982).

Construing orders to provide a disincentive for reform and repentance would be inconsistent with

the overarching purpose of these statutes.

       As Leitao and Jacobs make clear, the December 3, 2009 order implicitly re-suspended

any unserved portions of appellant’s suspended sentence. Furthermore, Code § 19.2-304 allows

the court to “subsequently increase or decrease the probation period” and to “revoke or modify any

condition of probation.” Under this statute, the trial court could extend appellant’s probation on

December 3, 2009, and again on July 26, 2012. Moreover, in Dunham v. Commonwealth, 59

Va. App. 634, 639 n.2, 721 S.E.2d 824, 827 n.2, aff’d, 284 Va. 511, 733 S.E.2d 660 (2012) (per

curiam), we noted that “a trial court does not err by increasing the period of suspension


                                                 -5-
subsequent to an original sentencing order, upon revocation and resuspension of the sentence.”

See generally Wright v. Commonwealth, 32 Va. App. 148, 526 S.E.2d 784 (2000). Finally, Code

§ 19.2-306(A) provides,

               In any case in which the court has suspended the execution or
               imposition of sentence, the court may revoke the suspension of
               sentence for any cause the court deems sufficient that occurred at
               any time within the probation period, or within the period of
               suspension fixed by the court.

       The trial court retained jurisdiction over the case. On December 3, 2009, and on July 26,

2012, it could extend appellant’s probation. On December 2, 2013, it could revoke the balance

of the suspended sentence for the relevant probation violations.

                                         CONCLUSION

       We affirm the judgment of the trial court.

                                                                                      Affirmed.




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