                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Frank, Huff and Senior Judge Coleman
UNPUBLISHED


              Argued at Richmond, Virginia


              LEE ALDEN MOONEY
                                                                          MEMORANDUM OPINION* BY
              v.     Record No. 1452-12-2                              SENIOR JUDGE SAM W. COLEMAN III
                                                                               SEPTEMBER 24, 2013
              COMMONWEALTH OF VIRGINIA


                                  FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY
                                              Thomas V. Warren, Judge

                               Marlene A. Harris for appellant.

                               Aaron J. Campbell, Assistant Attorney General (Kenneth T.
                               Cuccinelli, II, Attorney General, on brief), for appellee.


                     Lee Alden Mooney (appellant) appeals from a ruling that he violated conditions of

              probation imposed for a 2007 conviction. He contends that when it was determined he did not

              qualify for the diversion center incarceration program, ordered as a condition of resuspension

              during a 2011 revocation proceeding, the court had authority only to reconsider the terms of the

              2011 suspension and could not find a new probation violation supporting a new revocation of his

              suspended sentence. We hold on this record that the circuit court’s authority was not limited to

              only reconsidering the terms of the 2011 suspension and that the court did not err in considering

              additional criminal convictions in revoking the probation and suspended sentence. Thus, we

              affirm the challenged revocation of appellant’s suspended sentence and probation.




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

       Code § 19.2-303 permits the trial court, after conviction, to suspend all or part of a

sentence and to place the defendant on probation “under such conditions as the court shall

determine.” A requirement to comply with supervision, not to abscond, and to obey the law and

otherwise be of good behavior are conditions routinely imposed on a grant of probation. See,

e.g., Allison v. Commonwealth, 40 Va. App. 407, 408-09, 579 S.E.2d 655, 656 (2003); Va.

Crim. Sent’g Comm’n, Sentencing Revocation Report & Probation Violation Guidelines Manual

appx. 1 (Va. Dep’t of Corrections Form PPS 2, Conditions of Probation/Post-Release

Supervision (Rev. 2/1/05)). Both a suspended sentence and a grant of probation may be

conditioned upon the successful completion of “alternative sentencing [options]” including the

detention and diversion center programs. Peyton v. Commonwealth, 268 Va. 503, 509, 604

S.E.2d 17, 20 (2004) (citing Code § 53.1-67.3); see Code §§ 53.1-67.6 to -67.8.

       Code § 19.2-306, which governs revocation proceedings, provides in relevant part:

                       A. 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. . . .

                         *       *       *       *       *      *       *

                       D. If any court has, after hearing, found no cause to impose
               a sentence that might have been originally imposed, or to revoke a
               suspended sentence or probation, then any further hearing to
               impose a sentence or revoke a suspended sentence or probation,
               based solely on the alleged violation for which the hearing was
               held, shall be barred.

(Emphases added).

       “‘[T]he power of a court to revoke [probation or] a suspended sentence granted by [Code

§ 19.2-306] is broad, [but] it is not without limitation.’” Word v. Commonwealth, 41 Va. App.

496, 506, 586 S.E.2d 282, 287 (2003) (second and third alterations in original) (quoting Duff v.
                                               -2-
Commonwealth, 16 Va. App. 293, 297, 429 S.E.2d 465, 467 (1993)). “The cause deemed by the

court to be sufficient for revoking [probation or] a suspension must be a reasonable cause.”

Hamilton v. Commonwealth, 217 Va. 325, 327, 228 S.E.2d 555, 556 (1976) (per curiam). To

revoke a suspended sentence or probation, “proof beyond a reasonable doubt is not required.”

Marshall v. Commonwealth, 202 Va. 217, 221, 116 S.E.2d 270, 274 (1960). The sufficiency of

the evidence to sustain an order of revocation “is a matter within the sound discretion of the trial

court. Its finding[s] of fact and judgment thereon are reversible only upon a clear showing of

abuse of such discretion.” Id. at 220, 116 S.E.2d at 273.

                  A. DIVERSION CENTER PARTICIPATION CONDITION

       Appellant’s argument focuses in part on his inability to participate in the diversion center

incarceration program. We held in Word, 41 Va. App. 496, 586 S.E.2d 282, that if a defendant

has received a suspended sentence or probation which is conditioned upon his entering and

completing such a program and the defendant, through no new fault of his own, is no longer able

to satisfy that condition, “the court ha[s] the authority to reconsider the suspended sentence[]

[and probation].” Id. at 505, 586 S.E.2d at 286 (emphasis added). Relying on Word, appellant

contends the circuit court lacked authority to conclude in 2012 that he committed a new

probation violation when it was authorized, at most, merely to reconsider the terms upon which

it had revoked and resuspended his sentence in 2011. Word, however, is distinguishable and

inapplicable here. The trial court did not consider or base its decision upon appellant’s failing to

qualify for the diversion program. The court revoked appellant’s probation and suspended

sentence upon finding that appellant had committed, and was convicted of, five new crimes after

his 2007 grand larceny conviction and “within the probation period” for that offense, Code

§ 19.2-306 (emphasis added). The evidence supports the trial court’s finding in the 2012




                                                -3-
revocation proceeding that appellant violated the “terms of the suspended sentence and

probation” because he “committed [new] crimes.”

      B. IMPACT OF MULTIPLE SUSPENSIONS AND PROBATIONARY PERIODS

       Appellant argues the relevant period of probationary status is the one following his 2011

revocation and resuspension. He contends he was not on supervised probation during that time

and was not subject to any conditions of probation. Therefore, he contends that in the 2012

revocation proceeding, he could not be held to have violated any terms of probation.1 We hold

both the factual and legal premises of this argument are faulty.

       Pursuant to Code § 19.2-306, “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,” as long as the court has not previously “found no

cause . . . to revoke a suspended sentence or probation . . . based solely on the alleged violation”

at issue. Code § 19.2-306(A), (D). We have “reject[ed] the notion that the revocation and

resuspension of all or part of a defendant’s suspended sentence prevents the trial court from

thereafter considering conduct by the defendant, never before considered, that occurred prior to

the date of the revocation and resuspension.” Canty v. Commonwealth, 57 Va. App. 171, 179,

699 S.E.2d 526, 530 (2010), aff’d by unpub’d order, No. 102221 (Va. Oct. 7, 2011). Adopting


       1
           Although the letter Probation Officer Henley wrote to initiate the 2012 revocation
proceeding sought to have appellant show cause “as to why his suspended sentence or a portion
thereof should not be revoked” based on his ineligibility for the diversion center program, she
also subsequently notified the court that appellant appeared to have absconded. The wording in
the resulting capias to show cause was broad, requiring appellant to show cause as to “why [he]
. . . should not have the [2007] suspended sentence . . . for the charge of grand larceny . . .
revoked for failing to abide by the terms of probation.” (Emphasis added).
         Appellant attempts in his statements of the case and the facts on brief to characterize the
capias as being “for a probation violation for failing to enter and complete the Diversion
Program.” (Emphasis added). However, he does not contend in his single assignment of error
that he lacked notice of the potential scope of the July 2012 proceeding. We therefore do not
reach the issue of notice.

                                                -4-
such a notion “would [improperly] immunize the defendant (in the context of sentencing on the

original crime) from the consequences of acts he committed, no matter how heinous, in violation

of certain conditions of his probation once the trial court found him in violation of other, even

minor, terms of his probation. “ Id. Refusing to apply such a bar is proper because the sentence

imposed after a revocation and resuspension is not a modification of an immediately preceding

revocation and resuspension; rather a revocation and resuspension is “a further modification of

the original . . . suspended sentence.” Id. at 178 n.8, 699 S.E.2d at 529 n.8.

       In Clarke v. Commonwealth, 60 Va. App. 190, 725 S.E.2d 158 (2012), we held these

principles apply even if the sentencing court was aware of the charges, as long as “[t]he record

on appeal before this Court . . . provides no basis for concluding that the trial court considered

[the pending charges or convictions] . . . as grounds to revoke [the defendant’s] suspended

sentence” at the prior revocation hearing. Id. at 198-99 & n.8, 725 S.E.2d at 162 & n.8. We held

further that if a transcript of the prior hearing is necessary to determine whether the trial court

considered the prior convictions in making a prior revocation decision, a defendant who fails to

make a transcript of that hearing a part of the record on appeal fails to meet his burden of proof.

Id. at 194, 198-99 & nn.6, 8, 725 S.E.2d at 160, 162 & nn.6, 8.

       Here, like in Clarke, appellant has failed to meet his burden of providing “‘a sufficient

record from which we can determine whether the lower court . . . erred in the respect complained

of.’” Id. at 194 n.6, 725 S.E.2d at 160 n.6 (quoting Justis v. Young, 202 Va. 631, 632, 119

S.E.2d 255, 256-57 (1961)). Appellant failed to make a transcript of the 2011 revocation hearing

part of the record for purposes of appeal. Further, nothing in the related order establishes that the

sentencing court either (1) considered the crimes appellant had committed and been convicted of

between his original sentencing in 2007 and the 2011 revocation proceeding or (2) “found no

cause” to revoke in the 2011 proceeding based on those crimes. Prior to the 2011 revocation

                                                 -5-
proceeding, appellant’s probation officer notified the court that appellant once again had failed to

comply with the supervision condition of his probation, his fourth such failure. Although the

record shows the court likely was aware of at least appellant’s 2011 Richmond grand larceny

conviction at the time of the 2011 revocation proceeding, the record is silent regarding whether it

considered that conviction or any other in its 2011 sentencing decision. See, e.g., Smith v.

Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6 (1993) (“An appellate court must dispose

of the case upon the record and cannot base its decision upon appellant’s petition or brief, or

statements of counsel in open court. We may act only upon facts contained in the record.”). On

these facts, we hold appellant has failed to prove the sentencing court erred in relying on these

convictions as the basis for revoking appellant’s sentence in the 2012 proceeding.

       Appellant’s focus on the narrow period of time from the 2011 revocation to the 2012

revocation is misplaced; the court had authority under Code § 19.2-306, as construed in Clarke,

to consider the entire period from appellant’s original suspension of sentence in 2007 through the

revocation hearing in 2012, as long as appellant was subject to the relevant conditions of

supervision during the periods at issue. The evidence supports a finding that appellant was on

supervised probation and subject to conditions of probation, including one requiring good

behavior and compliance with all laws, during all relevant periods of time from his original

sentencing in 2007 through his 2011 revocation, and appellant does not contend otherwise.

       Appellant accurately states that the record does not establish the fact or nature of any

specific conditions of probation imposed as part of his 2011 revocation and resuspension.

However, whether appellant was subject to specific conditions of suspension or probation other

than successful completion of the diversion center program after the 2011 revocation is irrelevant

to this appeal. At the July 2012 revocation hearing, the prosecutor averred, and appellant’s

counsel confirmed, that all the new crimes appellant committed and was convicted of after his

                                               -6-
original sentence suspension in 2007 had conviction dates preceding the 2011 revocation. Thus,

the only conditions of probation relevant for purposes of the 2012 revocation, which the trial

court expressly stated was based on the “subsequent crimes that [appellant] committed after

February of [2007],” were the conditions in effect for the period from the original sentencing in

February 2007 to the revocation hearing of October 2011.

                                                II.

       Because the court had authority under Code § 19.2-306, as construed in Clarke, to

consider the entire period of time from the original suspension of appellant’s sentence in 2007

through the revocation hearing in 2012 and because the evidence established appellant

committed five new criminal offenses while he was subject to a good behavior condition of

supervised probation between 2007 and 2011, we conclude the court did not abuse its discretion

in holding appellant committed a new violation of the conditions of his probation and suspended

sentence rather than merely reconsidering its 2011 suspension of his sentence. For these reasons,

we affirm the trial court’s 2012 revocation of appellant’s suspended sentence and probation.

                                                                                        Affirmed.




                                               -7-
