                      COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia


DARRY WAYNE OSBORNE
                                              MEMORANDUM OPINION * BY
v.   Record No. 0326-98-3                     JUDGE DONALD W. LEMONS
                                                 FEBRUARY 23, 1999
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
                     Donald R. Mullins, Judge

           Robert M. Galumbeck (Dudley, Galumbeck &
           Necessary, on brief), for appellant.

           Daniel J. Munroe, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.


     On February 9, 1995, pursuant to a plea agreement, Darry

Wayne Osborne was convicted of two counts of aggravated sexual

battery.   On January 13, 1998, the court revoked his sentence

after finding that he was in violation of his suspended sentence

and probation.   On appeal, Osborne argues that the trial court

revoked the suspended sentence on grounds not contained in the

notice that he received.     We disagree and affirm the trial

court’s revocation of his suspended sentence.

                            I.   BACKGROUND
     On May 26, 1995, after receiving a presentence report, the

court sentenced Osborne to 20 years incarceration, suspended upon

conditions including that he have no contact with the victim or

the victim’s mother and that he have no contact with children.

     *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
The conditions of his probation were repeated to him in monthly

meetings with his probation officer.    Osborne’s counselor wrote

to the probation officer on May 22, 1995, requesting that contact

between Osborne and the victim and victim’s mother be permitted

in a supervised setting.   Such permission was not given.

By letter dated December 8, 1997, the probation officer informed

the trial judge that Osborne had violated the terms of his

suspended sentence by having unauthorized contact with the victim

and the victim’s mother.   On December 11, 1997, Osborne met with

his probation officer and was "served" with a document entitled

"Designation of Probation Conditions Violated" which indicated

that he had unauthorized contact with the victim and the victim’s

mother.   Osborne signed the document and also received a copy of

the December 8, 1997 letter to the court.   Osborne’s attorney was

mailed copies of these documents.

               II.   REVOCATION OF SUSPENDED SENTENCE

     At the show cause hearing on December 15, 1997, Osborne was

asked by the court, "Mr. Osborne, you’ve been charged with

violating the terms of your probation.   Have you received notice

of that?"   Osborne replied that he did have notice and that he

had discussed the matter with his attorney.   Counsel indicated

that the defense was ready to proceed, and Osborne pled "not

guilty" to the charge of violating his suspended sentence and the

terms of his probation.    At the conclusion of the hearing the

trial judge found that Osborne had violated the terms of his

suspended sentence and his probation and revoked his previously



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suspended sentence of 20 years.   The court’s order entered on

January 13, 1998 specifically recites that the revocation is

premised upon finding "the defendant guilty of violating the

terms of his probation and suspended sentence."

     At the revocation hearing, the trial judge stated:

          We had a horrible situation here when I
          sentenced Mr. Osborne. And I felt that he
          needed treatment because if he didn’t get
          treatment and if that treatment was not
          successful, helpful, then little children all
          over this country were at risk. This is a
          man that travels from coast to coast. I was
          hoping that the sexual offender treatment
          would alleviate that danger. It appears to
          the Court that the counseling that Mr.
          Osborne has received from Mr. Ferris is of no
          effect. It had no effect on Mr. Osborne.
          He’s received no benefit from that
          whatsoever. And the person that should have
          been I guess charged in this matter and one
          that I just cannot understand the actions of
          is the mother of this child. That while this
          was going on and before this prosecution
          began she knew about this sexual molestation
          and did nothing about it. And the only way I
          can figure that out is that she was receiving
          financial benefit from this man that was
          molesting her child. It’s a pitiful excuse
          for not protecting the innocent, helpless
          child. I don’t think that there is anything
          this Court can do to protect other children
          and this particular victim anymore. I’m
          going to revoke Mr. Osborne’s suspended
          sentence and have him serve that time.
     Based upon the judge’s remarks, Osborne complains on appeal

that the trial court revoked the suspended sentence on grounds

that were not contained in any notice he received, that no facts

were presented to support these grounds, and that the evidence

was insufficient to support the revocation.




                              - 3 -
     Osborne’s claims are without merit.    Osborne admitted the

contacts with the victim and the victim’s mother.    He contends

that he misunderstood the restrictions.    The trial judge was

entitled to weigh the credibility of the witnesses and,

obviously, resolved this issue against Osborne.    Even Osborne’s

counsel in closing remarks to the court stated, "We are here

because of this violation of the court order and probation.

There have been no other violations of the law."    Given that

there was no dispute over the fact of contact, it is

understandable why the trial judge did not make extended remarks

on that subject.

     Osborne also contends that because the trial judge opined

that the sexual offender treatment was not effective, his opinion

must be the basis for the revocation.    He contends that he had no

notice of revocation based on ineffectiveness of treatment and

that no evidence was presented to support the judge’s opinion.

In context it is clear to us that the trial judge concluded that

because Osborne had ignored his order to have no contact with the

victim and the victim’s mother, the sexual offender treatment was

not effective.    Whether this conclusion is warranted may require

further evidence, but it was the unauthorized contact and not the

lack of effectiveness of treatment that served as the basis for

the revocation.
     The revocation of a suspended sentence is left to the

discretion of the trial court.     See Slayton v. Commonwealth, 185

Va. 357, 365, 38 S.E.2d 479, 483 (1946).    The trial court’s



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findings of fact and judgment as to an order of revocation are

reversible only upon a clear showing of abuse of such discretion.

See Hamilton v. Commonwealth, 217 Va. 325, 327, 228 S.E.2d 555,

556 (1976).   Osborne had ample notice of the reason for his

hearing to show cause why his suspended sentence should not be

revoked.   The court was entitled to weigh the credibility of the

witnesses and reject Osborne’s explanation that he was confused

about the restrictions.   The court revoked his sentence because

of unauthorized contact with the victim and the victim’s mother

in direct violation of the terms of his suspended sentence and

probation.    The evidence was sufficient to support the finding,

and the trial court’s revocation of Osborne’s previously

suspended sentence is affirmed.

                                                           Affirmed.




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