                               COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Clements
Argued at Salem, Virginia


CHRISTOPHER ALLEN MASON
                                                             MEMORANDUM OPINION* BY
v.     Record No. 2045-05-3                                JUDGE JEAN HARRISON CLEMENTS
                                                                   MARCH 27, 2007
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                              Mosby G. Perrow, III, Judge

                 Thomas S. Leebrick (Thomas S. Leebrick, P.C., on brief), for
                 appellant.

                 Donald E. Jeffrey, III, Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       On appeal from an order revoking his previously suspended sentence, Christopher Allen

Mason (appellant) contends the trial court abused its discretion in sentencing him to an indefinite

period of supervised probation. For the reasons that follow, we modify the period of supervised

probation to be concurrent with the specified period of suspension of sentence and affirm the

judgment of the trial court thus modified.

       As the parties are fully conversant with the record in this case, and because this

memorandum opinion carries no precedential value, this opinion recites only those facts and

incidents of the proceedings as are necessary to the parties’ understanding of the disposition of

this appeal.




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                       I. BACKGROUND

       The procedural circumstances relevant to this appeal are not in dispute. On October 15,

1999, the trial court sentenced appellant to ten years in prison for committing forcible sodomy in

violation of Code § 18.2-67.1. The trial court suspended execution of the entire sentence subject

to certain conditions.

       On July 7, 2003, the trial court found that appellant had failed to comply with the

conditions of the suspension and revoked the suspension of the sentence. The court then

resuspended upon certain conditions the execution of all but two years of the reinstated sentence.

       On July 22, 2005, the trial court found that appellant had violated the conditions of the

resuspended sentence and revoked the suspension of that sentence. By order entered the same

day, the court imposed an active sentence of twelve months in jail and resuspended execution of

the rest of appellant’s unserved sentence, upon the following conditions:

               Good Behavior. The defendant shall be of good behavior for 3
               years from the defendant’s release from confinement.

               Supervised Probation. The defendant is placed on probation to
               commence on release from incarceration under the supervision of a
               Probation Officer for an indefinite period of time. The defendant
               shall comply with all the rules and requirements set by the
               Probation Officer.

(Emphasis added.)

       Appellant moved to amend the sentence, arguing that the imposition of an “indefinite

period” of supervised probation was improper under Hartless v. Commonwealth, 29 Va. App.

172, 510 S.E.2d 738 (1999). The trial court denied appellant’s motion, and this appeal followed.

                                         II. ANALYSIS

       Appellant contends on appeal, as he did below, that the trial court’s imposition of an

“indefinite period” of supervised probation in the July 22, 2005 order was inappropriate under

Hartless. We agree.

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       In Hartless, having found the defendant guilty of indecent exposure, the trial court

sentenced him to

               twelve months in jail, with two months suspended upon the
               following conditions:

               Good behavior. The defendant shall be of good behavior for 1
               year from the defendant’s release from confinement.

               Supervised probation. The defendant is placed on intensive
               probation to commence on release from incarceration, under the
               supervision of a Probation Officer for an indefinite period of time,
               to be reviewed yearly. The defendant shall comply with all the
               rules and requirements set by the Probation Officer.

Id. at 174, 510 S.E.2d at 739 (emphasis added). Reasoning that, “to be effective, probation must

be concurrent with a coordinate term of suspension of sentence,” we held that the period of

supervised probation imposed by the trial court may not “extend beyond . . . the specified period

of suspension.” Id. at 175, 510 S.E.2d at 739-40. We further held that “[t]he good behavior

requirement [set forth in the trial court’s sentencing order in Hartless] sufficiently defined a

period of suspension continuing for one year from Hartless’s release from confinement.” Id. at

175, 510 S.E.2d at 740. Hence, we concluded that Hartless’s supervised probation could not

continue “beyond one year from Hartless’s release from confinement.” Id. Consequently, we

modified “Hartless’s term of probation such that it . . . continue[d] for a term ending one year

following his release from confinement,” and affirmed the trial court’s judgment thus modified.

Id. at 176, 510 S.E.2d at 740.

       The same principles govern our resolution of this appeal. Here, the trial court suspended

the execution of the balance of appellant’s sentence on the condition that he “be of good

behavior for [three] years from [his] release from confinement.” No other period of suspension

is set forth in the July 22, 2005 order. Thus, as in Hartless, the good behavior requirement set

forth in the court’s order delineates the period of suspension of sentence. See id. at 175, 510

                                                -3-
S.E.2d at 740. Because, as we said in Hartless, the period of supervised probation imposed by

the trial court may not “extend beyond . . . the specified period of suspension,” appellant’s

supervised probation may not last more than three years following his release from confinement.

See id.

          Accordingly, we modify the period of supervised probation imposed by the trial court in

the July 22, 2005 order “to be coterminous” with the specified period of suspension of sentence

such that it will end three years from appellant’s release from confinement. Id. at 174, 510

S.E.2d at 739. “With that modification, the judgment of the trial court is affirmed.” Id. at 176,

510 S.E.2d at 740.

                                                                            Modified and affirmed.




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