                                  COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Humphreys and Kelsey
Argued at Richmond, Virginia


JEROME ARTIS, JR.
                                                                 MEMORANDUM OPINION* BY
v.        Record No. 0175-05-2                                     JUDGE LARRY G. ELDER
                                                                       MARCH 7, 2006
COMMONWEALTH OF VIRGINIA


                     FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                                  Richard D. Taylor, Jr., Judge

                    Craig W. Stallard, Assistant Public Defender (Office of the Public
                    Defender, on brief), for appellant.

                    Denise C. Anderson, Assistant Attorney General (Judith Williams
                    Jagdmann, Attorney General, on brief), for appellee.


          Jerome Artis, Jr., (appellant) appeals from a ruling revoking a previously suspended

sentence and reimposing a period of that sentence based on his violation of the good behavior

condition of that suspension while he was incarcerated. On appeal, he contends the trial court

abused its discretion by revoking the suspended sentence because (1) the revocation was based

on matters that were only institutional infractions and did not amount to substantial misconduct

and (2) he did not have fair warning that his actions could result in revocation. We hold the trial

court did not abuse its discretion in revoking a portion of appellant’s suspended sentence, and we

affirm.

          “A trial court has broad discretion to revoke a suspended sentence and probation based on

Code § 19.2-306.” Davis v. Commonwealth, 12 Va. App. 81, 86, 402 S.E.2d 684, 687 (1991). It

may do so “for any cause deemed by it sufficient which occurred at any time . . . within the

          *
              Pursuant to Code § 17.1-413, this opinion is not designated for publication.
period of suspension fixed by the court . . . .” Code § 19.2-306. The Supreme Court of Virginia

has interpreted this language to mean a “reasonable cause.” Slayton v. Commonwealth, 185 Va.

357, 367, 38 S.E.2d 479, 484 (1946). “The court’s . . . judgment will not be reversed unless

there is a clear showing of abuse of discretion.” Davis, 12 Va. App. at 86, 402 S.E.2d at 687.

       “[I]n revocation hearings ‘formal procedures and rules of evidence are not employed,’”

id. at 84, 402 S.E.2d at 686 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756,

1759, 36 L. Ed. 2d 656 (1973)), and “the process of revocation hearings ‘should be flexible

enough to consider evidence . . . that would not be admissible in an adversary criminal trial,’” id.

(quoting Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 2604, 33 L. Ed. 2d 484

(1972)).

       Here, it was undisputed that the period of suspension of appellant’s 1987 sentence for

breaking and entering with intent to commit rape was for his natural life and that being of good

behavior was a stated condition of that suspension. “Good behavior is not limited to an

avoidance of criminal activity.” Holden v. Commonwealth, 26 Va. App. 403, 409, 494 S.E.2d

892, 895 (1998). “[I]niquitous, but not necessarily illegal, conduct [also] justifies a court’s

revocation of a suspended sentence.” Holden v. Commonwealth, 27 Va. App. 38, 42, 497 S.E.2d

492, 494 (1998) (citing Bryce v. Commonwealth, 13 Va. App. 589, 591, 414 S.E.2d 417, 418

(1992)). “[A] court may revoke a defendant’s suspended sentence for substantial misconduct not

involving violation of law.” Id. at 44, 497 S.E.2d at 495 (citing Marshall v. Commonwealth, 202

Va. 217, 220-21, 116 S.E.2d 270, 273-74 (1960)).

       It is axiomatic that if an unincarcerated offender may violate the good behavior condition

of a suspended sentence by engaging in behavior that does not amount to a crime or is not

charged as one, an inmate also may violate the good behavior condition of a suspended sentence

by engaging in behavior that does not amount to a crime or is not charged as one. Whether

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misbehavior constitutes an institutional infraction may be probative of whether it also amounts to

a violation of a good behavior condition, but it is not dispositive. See id. at 44-46, 497 S.E.2d at

495-96 (holding defendant incarcerated for aggravated sexual battery of child violated good

behavior condition by writing letters describing how he planned to reoffend and that hiding those

letters from prison officials and failing to reveal his desires in his group therapy sessions showed

a knowledge that writings violated good behavior condition). Similarly, how the Department of

Corrections chooses to punish a particular infraction or how that infraction affects an inmate’s

ability to earn “good behavior” credits may be probative but is not dispositive of whether the

misbehavior amounts to “substantial misconduct” supporting revocation of the suspended

sentence.

       Applying these principles to the facts of this case, we hold the trial court’s decision to

revoke four years of appellant’s suspended sentence was not an abuse of discretion. Appellant’s

underlying convictions were for rape, malicious wounding, and breaking and entering with intent

to commit rape. While serving active sentences of incarceration for the first two of those

offenses, appellant committed institutional infractions involving (1) threatening correctional

officers and threatening to commit arson and (2) indecent exposure for masturbating while

standing in an open bathroom door in full view of a guard at an institutional officer’s desk.

Shortly after being notified that the Commonwealth intended to seek a revocation of suspension

based, inter alia, on the above infractions, appellant committed a second infraction for indecent

exposure, arising out of an incident of masturbation in an inmate day room. This evidence was

sufficient to permit a finding that appellant failed to satisfy the good behavior condition of his

suspended sentence.

       Appellant nevertheless contends the evidence was insufficient to show he had adequate

notice that the conduct resulting in the institutional infractions violated the good behavior

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condition of his suspended sentence. He cites our pronouncement in Holden that “‘[w]hen . . . a

court order is read to proscribe conduct that is not in itself unlawful, the dictates of due process

forbid the forfeiture of an actor’s liberty by reason of such conduct unless he is given fair

warning.’” 27 Va. App. at 44-45, 497 S.E.2d at 495 (quoting United States v. Gallo, 20 F.3d 7,

12 (1st Cir.1994)). We hold this principle does not compel the result appellant seeks for two

reasons.

        First, we agree with the trial court’s conclusion that the institutional infractions upon

which the Commonwealth relied were also criminal offenses, thereby providing appellant with

adequate notice that the commission of these infractions violated the good behavior condition.

As argued by the Commonwealth to the trial court, appellant’s 1993 threats to guards searching

his cell that they would “get [theirs]” and that he would set a fire constituted the crime of

obstructing justice in violation of Code § 18.2-460. See Polk v. Commonwealth, 4 Va. App.

590, 593-95, 358 S.E.2d 770, 772-73 (1987). Appellant’s acts of indecent exposure, in which his

penis was exposed and he was masturbating, also constituted criminal offenses in violation of

Code § 18.2-387. Although appellant contends he lacked the requisite intent, the record supports

a contrary finding. As to the first act, the record included a statement that appellant admitted

intentionally committing the act in full view of a guard. As to the second act, the court was

entitled to infer that the place in which appellant committed it made it likely that he would be

seen and permitted the inference that he intended exposure as a “natural and probable

consequence[] of his acts.” Campbell v. Commonwealth, 12 Va. App. 476, 484, 405 S.E.2d 1, 4

(1991) (en banc). That prison officials chose not to pursue criminal sanctions for these

infractions is not dispositive.

        Furthermore, we hold that an inmate who knowingly engages in misbehavior that

constitutes an institutional infraction, regardless of whether it also constitutes a criminal offense,

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is on notice that the misbehavior might also be found to violate the good behavior term of his

suspended sentence. Here, the evidence supported a finding that upon appellant’s initial

commitment to the Department of Corrections following his conviction and sentencing in 1987,

he received a handbook listing all institutional infractions subject to punishment by the DOC.

Thus, he was on notice that his commission of any of the listed acts might also be viewed as a

violation of the good behavior condition of his suspended sentence. In addition, before appellant

committed the second indecent exposure infraction, the revocation proceedings were already

underway. Thus, appellant had actual notice prior to the second indecent exposure incident that

the Commonwealth considered such behavior in an institutional setting to be an act violating the

good behavior condition of his suspended sentence. Accordingly, we reject appellant’s claim

that the revocation of his suspended sentence based on these institutional infractions violated a

due process notice requirement. “‘[T]he fair warning doctrine does not provide a safe harbor for

probationers who choose to ignore the obvious.’” Holden, 27 Va. App. at 45-46, 497 S.E.2d at

496 (quoting Gallo, 20 F.3d at 12).

       For these reasons, we hold the trial court did not abuse its discretion in revoking a portion

of appellant’s suspended sentence, and we affirm.

                                                                                         Affirmed.




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