                                   COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, McClanahan and Petty
Argued at Lexington, Virginia


RICHARD LEE KEEN
                                                              MEMORANDUM OPINION * BY
v.     Record No. 1787-09-3                                    JUDGE WILLIAM G. PETTY
                                                                     JULY 6, 2010
COMMONWEALTH OF VIRGINIA


                    FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
                                Henry A. Vanover, Judge

                 Martha P. Ketron (Chafin Law Firm, P.C., on brief), for appellant.

                 Eugene Murphy, Senior Assistant Attorney General (Kenneth T.
                 Cuccinelli, II, Attorney General, on brief), for appellee.


       Richard Lee Keen appeals two orders finding him in violation of the conditions of his

probation. He claims the trial court was without jurisdiction to revoke his probation because the

time within which to revoke his sentences had expired. Keen also contends that the trial court

denied him due process because it failed to give him proper notice of the revocation hearing and

appoint an attorney for the revocation hearing. For the following reasons, we affirm in part and

reverse and dismiss in part.

                                          I. BACKGROUND

       In February of 1991, Keen was sentenced to three consecutive terms of five years’

imprisonment on three counts of distributing marijuana; two of the five-year sentences were

suspended. The sentencing order provided:

                 [T]he defendant is placed on supervised probation with a Probation
                 Officer of this Court, for an indefinite term until released by this

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
               Court, upon the express terms and conditions that the defendant be
               of good behavior and not violate any penal laws of this
               Commonwealth, any state, or any political subdivision thereof, that
               he absolutely abstain from the excessive use of alcoholic beverages
               and the use and handling of all nonprescribed and nonprescription
               drugs.

       On May 15, 1991, the trial court, in response to Keen’s motion, suspended the execution

of Keen’s five years’ active imprisonment “upon the condition that the defendant serve a term of

twelve (12) months in the jail of this County, without credit for good time, during which time the

defendant shall be allowed to remain on work release program.” On December 20, 1991, in

response to another motion by Keen, the trial court “temporarily suspend[ed] the execution of the

twelve (12) months jail sentence upon condition that the Defendant be of good behavior, not

violate the penal laws of the Commonwealth or any political subdivision thereof, that he be

placed on active probation, that he obey all the terms and conditions of his probation, and that he

cooperate with the office of the Attorney for the Commonwealth in the investigation of drug

related offenses.” On March 9, 2000, Keen was moved to unsupervised probation with respect to

his sentences from the 1991 convictions for distribution of marijuana.

       In an unrelated case, Keen was sentenced, on May 17, 1999, to two years’ imprisonment

for possession of a firearm by a convicted felon and thirty days for possession of marijuana.

These consecutive sentences were suspended, and Keen was placed on supervised probation for

an indefinite term.

       Keen was convicted of a new crime—distribution of methamphetamine—on February 17,

2006. By letter dated April 18, 2006, Probation and Parole Officer Jennifer S. Helbert notified

the Tazewell County Circuit Court of Keen’s new conviction and asked for a revocation hearing.

Helbert indicated in the letter that Keen “was placed on unsupervised probation on March 9,

2000 following a period of supervised probation on the offenses of Distribution of Marijuana

[1991 conviction] and Possession of a Firearm by a Convicted Felon [1999 conviction].”
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Helbert specifically requested that Keen be required “to show cause as to why [his] unsupervised

status shall not be revoked.” A copy of this letter was sent to Anne Brammer, described in the

letter as Keen’s defense attorney.

       On April 24, 2006, a hearing was held on both the sentencing for Keen’s new conviction

and on the probation violation. At the beginning of the hearing, the Commonwealth advised the

trial court that both matters were before the court. Defense counsel stated that she did not

receive a copy of the probation violation letter but did not object to any deficiency in the notice.

The probation officer pointed out that the basis for the revocation was Keen’s plea of guilty to

the new crime. When the probation revocation was discussed, Ms. Brammer, Keen’s attorney,

questioned the probation officer with respect to the violation and never raised an objection.

Brammer also questioned Keen regarding the new offense and the circumstances surrounding the

probation violation. Keen testified that he recognized that even on unsupervised probation that

he had to be on good behavior.

       The trial court revoked Keen’s probation on all of the above sentences and all of the

previously suspended imprisonment was imposed for the 1991 convictions. The trial court

resuspended all of the two years and thirty days previously imposed for the 1999 convictions and

restored Keen’s original terms and conditions of supervised probation. On both of the final

probation violation orders, Ms. Brammer was listed as Keen’s defense attorney. Both orders also

indicated that Keen’s attorney was personally present. Finally, both orders indicated that Keen

received written notice of the hearing to show cause.

                                           II. ANALYSIS

       Keen argues that the trial court lacked jurisdiction to revoke his suspended sentences

from his 1991 convictions and his 1999 convictions. He also argues that he was denied notice of

his violation and not provided with appointed counsel. However, Keen admitted that he failed to

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argue these points to the trial court and, therefore, he has waived this argument by failing to

contemporaneously object to the trial court’s ruling. Rule 5A:18. We have repeatedly held that

while

               the lack of subject matter jurisdiction can be raised at any time in
               the proceedings, even for the first time on appeal by the court sua
               sponte . . . defects in the other jurisdictional elements generally
               will be considered waived unless raised in the pleadings filed with
               the trial court and properly preserved on appeal.

Porter v. Commonwealth, 276 Va. 203, 228-29, 661 S.E.2d 415, 427 (2008) (citations omitted).

Because the specific type of jurisdiction is not subject matter jurisdiction, but authority

jurisdiction, compliance with Rule 5A:18 is mandatory. Mohamed v. Commonwealth, 56

Va. App. 95, 100-02, 691 S.E.2d 513, 515-16 (2010). Recognizing this, Keen argued that we

should apply the “ends of justice” exception to Rule 5A:18.

                   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. Our Supreme Court has stated
               that the 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. However, the exception is only invoked in
               narrow circumstances when the record . . . affirmatively shows that
               a miscarriage of justice has occurred, not that a miscarriage of
               justice might have occurred.

Id. at 102, 691 S.E.2d at 516 (internal citations and quotation marks omitted).

        Keen first argues that the trial court acted without jurisdiction when it revoked the

remainder of his suspended sentences because the period of the suspension had expired. Keen is

unable to demonstrate on this record that a miscarriage of justice occurred when the trial court

revoked his 1991 suspended sentences; however, Keen has affirmatively demonstrated a

miscarriage of justice with respect to his 1999 suspended sentences.

        In 1991, Keen was sentenced to five years for each count of distribution of marijuana for

a total of fifteen years. The five-year sentence for both the second and third counts were
                                                -4-
suspended but the five-year sentence on the first count was imposed as active time. Keen argues

that, because his active time was later suspended in a subsequent order, it no longer ran

consecutively with the other two counts. However, nothing in the orders suspending his 1991

sentences established a “probation period or a period of suspension.” Code § 19.2-306(A); see

Hartless v. Commonwealth, 29 Va. App. 172, 175, 510 S.E.2d 738, 739 (1999). Thus, the time

period for revoking Keen’s suspended sentences is “the maximum period for which the

defendant might originally have been sentenced to imprisonment.” Code § 19.2-306(A).

       In 1991, Keen was convicted of three counts of distribution of marijuana, which is a

Class 5 felony. Code § 18.2-248.1. Each count carried a maximum sentence of ten years each.

Code § 18.2-10. Thus, “the maximum period for which the defendant might originally have been

sentenced to imprisonment” was thirty years. Code § 19.2-306(A). Therefore, the trial court

clearly had jurisdiction to revoke Keen’s suspended sentences on the 1991 convictions.

       In 1999, Keen was convicted of possession of a firearm by a convicted felon and

possession of marijuana. Nothing in the order suspending his 1999 sentences established a

“probation period or a period of suspension.” Code § 19.2-306(A); see Hartless, 29 Va. App. at

175, 510 S.E.2d at 739. The maximum sentence for both convictions was five years and thirty

days. Code §§ 18.2-308.2; 18.2-10; 18.2-250.1. The probation violation that the probation

officer complained of was Keen’s guilty plea to the new distribution of methamphetamine

charge, which occurred on February 17, 2006. However, the trial court’s authority to revoke

Keen’s suspended sentences ended one year after his maximum possible sentence ended, which

was six years and thirty days after he was sentenced on May 17, 1999. Code § 19.2-306(B).

However, Keen’s purported violation occurred seven years later, on February 17, 2006, when

Keen pleaded guilty to the new charge of distribution of methamphetamine. Thus, the revocation

of Keen’s 1999 suspended sentences occurred two years after “the maximum period for which

                                               -5-
the defendant might originally have been sentenced to imprisonment.” Code § 19.2-306(A).

Clearly, then, the record affirmatively demonstrates that the trial court lacked the authority to

revoke Keen’s suspended sentences under Code § 19.2-306(A). 1 Thus, a miscarriage of justice

occurred and we may invoke the ends of justice exception to Rule 5A:18.

       Keen’s second argument, that he was provided neither notice of nor counsel at the

revocation hearing, was also not raised at trial. Nonetheless, Keen argues that a miscarriage of

justice occurred and we should invoke the ends of justice exception to Rule 5A:18. Keen,

however, is unable to affirmatively demonstrate on this record that a miscarriage of justice

occurred. We note this case comes to us with a presumption of correctness. “A court speaks

through its orders and those orders are presumed to accurately reflect what transpired.” McBride

v. Commonwealth, 24 Va. App. 30, 35 480 S.E.2d 126, 128 (1997). “The maxim that ‘trial

courts speak only through their orders and that such orders are presumed to reflect accurately

what transpired’ is the well-established law of this Commonwealth.” Rose v. Commonwealth,

265 Va. 430, 435 n.2, 578 S.E.2d 758, 761, n.2 (2003) (quoting McMillion v. Dryvit Systems,

Inc., 262 Va. 463, 469, 552 S.E.2d 364, 367 (2001)).

       Here, in both probation violation orders, the trial court stated that Ann Brammer, Keen’s

attorney, was present and that Keen had “received written notice of a hearing to show cause.”

We presume, without any evidence to the contrary, that the trial court’s order is correct. There is

nothing in the record to rebut that presumption. Thus, we must conclude that Keen had the

benefit of counsel during the revocation hearing and that he received written notice of the

hearing.


       1
         We note that, on brief, the Commonwealth conceded error on this issue: “With respect
to the 1999 convictions, however, the maximum penalty was five years and thirty days, Code
§§ 18.2-10, 18.2-250.1, 18.2-308.2. Therefore, the court could not hear the violation proceeding
in 2006 because the six years and thirty days limitation, set forth in § 19.2-306, expired in 2005.”

                                                -6-
                                        III. CONCLUSION

       For these reasons, we affirm the trial court’s probation revocation order revoking Keen’s

suspended sentences on the 1991 convictions because Keen failed to object and the record fails

to indicate a miscarriage of justice. However, having found that the record affirmatively

demonstrates a miscarriage of justice regarding the trial court’s revocation of Keen’s suspended

sentences from the 1999 convictions, we reverse and dismiss the trial court’s order.

                                                                                Affirmed in part,
                                                                   reversed and dismissed in part.




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