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Green v. Commonwealth

Court of Appeals of Virginia

July 17, 2018

MICHAEL SEAN GREEN
v.
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF STAFFORD COUNTY Victoria A.B. Willis, Judge

          Brian Carrico, Assistant Public Defender, for appellant.

          Leah A. Darron, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Petty, Malveaux and Senior Judge Annunziata Argued at Alexandria, Virginia

          OPINION

          WILLIAM G. PETTY JUDGE

         In 2017, Michael Sean Green was found in violation of the conditions of his suspended sentence on a 1993 arson conviction. The trial court revoked his nine-year suspended sentence. On appeal, Green argues that the "[t]rial [c]ourt erred in finding that it had jurisdiction to revoke Green's nine year suspended sentence relating to his 1993 arson conviction because that 10-year period of suspension had expired." For the reasons stated below, we agree and reverse the judgment of the trial court.

         Background

         "On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Wells v. Commonwealth, 65 Va.App. 722, 725, 781 S.E.2d 362, 364 (2016) (quoting Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987)).

         On December 14, 1993, Green pleaded guilty to one count of felony arson pursuant to Code § 18.2-81. The trial court sentenced Green to ten years of confinement with nine years suspended "on the condition that the defendant keep the peace and be of good behavior and violate no criminal laws of the Commonwealth or of any other jurisdiction of the United States for a period of ten (10) years." The trial court further conditioned that "[u]pon the defendant's release from confinement, he is to be placed on active supervised probation under the Probation Officer of this [c]ourt for the term of suspension for a period of time deemed appropriate by the [c]ourt." Green was also required to pay restitution, court costs, and attorney's fees.

         Prior to his release from confinement on the arson conviction, Green was convicted of unrelated offenses that he committed prior to December 14, 1993. Green was sentenced to a total of fifty-four years in prison. Green was eligible for parole, however, and was released from incarceration on November 7, 2014. He was on concurrent parole supervision for the unrelated offenses and supervised probation for the arson conviction. On June 8, 2015, a capias for violation of a probation order was issued for Green's arrest. The major violation report regarding his probation alleged that Green was in violation of his probation for events that occurred in May of 2015. The report alleged that he failed to report to his probation officer that he was charged with reckless driving, he admitted to being in possession of prohibited sexual video content, and he absconded.

         Green was arrested, and he moved to dismiss the violation pursuant to Code § 19.2-306. The trial court denied Green's motion and ordered him to serve the remaining nine years of his suspended sentence on the arson conviction.

         Analysis

         Green argues that the period of suspension on his arson conviction expired in 2003, when his period of good behavior concluded. Accordingly, Green argues that the trial court lacked jurisdiction to revoke and impose the previously suspended portion of his sentence for violations that occurred after his release from prison in 2014.[1] We agree.

         Generally, "[a]bsent an abuse of discretion, [this Court] will not reverse a trial court's revocation of a suspended sentence under Code § 19.2-306." Leitao v. Commonwealth, 39 Va.App. 435, 438, 573 S.E.2d 317, 319 (2002). However, the "authority of the trial court to revoke [an] appellant's suspended sentence is one of statutory interpretation and presents a pure question of law, which this Court reviews de novo." Wilson v. Commonwealth, 67 Va.App. 82, 88-89, 793 S.E.2d 15, 18 (2016) ...


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