                     COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Frank and Humphreys
Argued at Chesapeake, Virginia


SHAHEEM LABEEB RASHEED, A/K/A
 ALVIN ANTONIO BARNES
                                          MEMORANDUM OPINION * BY
v.   Record No. 2740-00-1                  JUDGE RICHARD S. BRAY
                                              FEBRUARY 5, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                      Joseph A. Leafe, Judge

          (Carl C. LaMondue, on brief), for appellant.
          Appellant submitting on brief.

          (Randolph A. Beales, Acting Attorney General;
          John H. McLees, Jr., Senior Assistant
          Attorney General, on brief), for appellee.


     Shaheem Labeeb Rasheed (defendant) appeals the revocation of

suspended sentences previously imposed by the trial court,

contending the court's finding that he failed to complete the

Detention and the Diversion Center Incarceration Programs, a

condition of the suspended sentence and related probation,

constituted an abuse of discretion.   We disagree and affirm the

order.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

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

     On May 21, 1999, defendant was convicted by the trial court

for concealment of merchandise and possession of burglarious

tools, violations of Code §§ 18.2-103 and -94, respectively.   At

sentencing, upon joint motion of the Commonwealth and defendant,

the court ordered "defendant . . . referred to the Department of

Corrections (DOC) . . . for evaluation and diagnosis . . . to

determine suitability for participation in the Diversion Center

Incarceration Program and/or Southampton Detention Incarceration

Program" pursuant to Code § 19.2-316.2. 1   See Code §§ 19.2-316.2,

-316.3; Code §§ 53.1-67.7, -67.8.    Subsequently, the DOC

reported to the court that defendant was eligible for placement

in such programs, and the trial court imposed suspended

sentences and probation for each offense, conditioned upon

certain conditions, including successful completion of the

"Detention and the Diversion Center Incarceration Programs," a

proviso mandated by Code § 19.2-316.2(3).

     On August 21, 2000, defendant entered Southampton Detention

Center to commence a referenced DOC program.    However, by

correspondence, dated September 6, 2000, defendant's probation

officer advised the court that defendant "was terminated from



     1
       Such programs are alternative sentencing options available
to the court, expressly subject to conditions imposed by
statute, including a "motion from [the] defendant" to
participate and a favorable suitability evaluation by DOC. Code
§ 19.2-316.2.

                              - 2 -
the Program" on August 25, 2000, "after refusing to obey all

rules, regulations and to participate in training . . . ."    In

response, the trial court, on September 13, 2000, issued a

capias for defendant's arrest, commanding he "show cause"

against revocation of the previously suspended sentences.

     At the attendant hearing, a "Major Violation Report," dated

October 3, 2000, and prepared by defendant's probation officer,

was received into evidence, without objection.   The report

advised the court that defendant had

          entered the Detention Center Program on
          August 21, 2000. He was terminated from the
          program four days later for non-compliance
          with the rules and regulations of the
          program. [Defendant] signed documents
          agreeing that he would obey all rules and
          regulations of the program. These
          regulations also cover the religious areas.

          Paragraph five of Southampton Detention
          center Pre-admission Agreement Form states,
          "I will not be allowed any special religious
          paraphernalia beyond a Bible, Quran, etc.
          The practice of any/all religious activity
          will have to comply with the structure of
          the Detention Center[sic] normal daily
          operation and procedures."

          [Defendant] immediately began making demands
          regarding his religious practices which
          conflicted with the Southampton Detention
          Center Daily Activity Schedule for the
          detainees in the transition phase of our
          program. . . .

          [Defendant] was seen by staff at this
          facility on numerous occasions. During
          these contacts he made demands in the area
          of religion. Each time [he] was given an
          opportunity to practice his religious
          beliefs within the guidelines of this

                              - 3 -
             program. Each time [he] rejected the offer
             and offered more demands of his own.

             On August 24, 2000, [defendant] received
             four infractions which all violated our
             General Orders:

                  1.   Giving food to another detainee

                  2. Demanding staff to get him out of
                  here, refusing to go to his dormitory.
                  Speaking without permission, and
                  deliberately taking off his belt with
                  his canteen, and throwing them on the
                  floor, disrupting the transition group.

                  3. When instructed to return to the
                  transition group and train, [he]
                  refused to do so, stating, "I am ready
                  to be removed, I am not training
                  anymore."

                  4. When offered time to pray, [he] did
                  not answer . . . yes or no, but said he
                  "did not want to do the program any
                  more."

             On August 25, 2000, the Institutional Review
             Committee heard the above mentioned charges.
             Based on [defendant's] statement that he was
             ready to be removed and was not going to
             train anymore, the committee members voted
             to terminate [him] from the program.

     Defendant did not dispute the contents of the violation

report but contended participation in the program infringed upon

the free exercise of his religion in violation of the First

Amendment.    The court, however, rejected the argument, noting

that "[defendant is] not being penalized for . . . any of the

religious aspects of his inability to complete detention and

diversion.    It's just the fact that it couldn't be done."   The

court, therefore, found defendant in violation of the terms and


                                  - 4 -
conditions of the suspended sentences and probation, revoked

such suspensions and sentenced him to five years in the

penitentiary for the concealment offense, resuspending two years

of the sentence, and to two years confinement for the possession

of burglarious tools, again resuspended.

                                II.

               By statute, a trial judge in Virginia
          "may, for any cause deemed by [the judge]
          sufficient which occurred at any time within
          the probation period . . . revoke the
          suspension of sentence." The revocation of
          the suspended sentence "must be based on
          reasonable cause," and must be based upon
          cause that occurred within the suspension or
          probation period.

Bailey v. Commonwealth, 19 Va. App. 355, 357, 451 S.E.2d 686,

687 (1994) (citations omitted); see Code § 19.2-306.     "[T]he

power of the courts to revoke suspensions and probation for

breach of conditions must not be restricted beyond the statutory

limitations."   Briggs v. Commonwealth, 21 Va. App. 338, 344, 464

S.E.2d 512, 514 (1995) (citations omitted).   Thus, "the issue on

review of a revocation is 'simply whether there has been an

abuse of discretion.'"   Connelly v. Commonwealth, 14 Va. App.

888, 890, 420 S.E.2d 244, 245 (1992) (quoting Marshall v.

Commonwealth, 202 Va. 217, 221, 116 S.E.2d 270, 274 (1960).

     Here, defendant expressly requested admission into the

"Detention and the Diversion Center Incarceration Programs," a

sentencing option available at the discretion of the court upon

certain circumstances, and submitted to the requisite

                               - 5 -
suitability review by DOC.    Once approved by DOC and with

defendant's continuing concurrence, the court imposed suspended

sentences and probation, specifically conditioned upon

defendant's "successful complet[ion of] the Detention and the

Diversion Center Incarceration Programs" in accordance with

statute.    However, defendant immediately refused "to obey all

rules, regulations and to participate in training . . .,"

committing several enumerated violations, and repeatedly

declaring "he was ready to be removed" and "was not going to

train anymore."    Thus, "[b]ased upon [defendant's] statement,"

administrators "voted to terminate" his participation.

     Defendant's conduct was clearly contrary to his request to

the court for referral to the program and his subsequent

informed commitment to abide by the attendant protocols.      Under

such circumstances, defendant evinced an "unwillingness to avail

[himself] of the opportunity afforded by the court," Connelly,

14 Va. App. at 890, 420 S.E.2d at 245, and provided reasonable

cause for revocation of the suspended sentences pursuant to Code

§ 19.2-316(A)(4), 2 without implicating religious precepts or

constitutional constraints.


     2
         Code § 19.2-316.2(A)(4) provides:

            Upon a finding that the defendant
            voluntarily withdrew from the program, was
            removed from the program by the Department
            for intractable behavior, or failed to
            comply with the terms and conditions of
            probation, the court may revoke all or part

                                - 6 -
     We, therefore, find no abuse of discretion by the trial

court in the revocation of defendant's suspended sentences and

affirm the disputed order.

                                                  Affirmed.




          of the probation and suspended sentence and
          commit the defendant as otherwise provided
          in this chapter.



                              - 7 -
