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Burnham v. Commonwealth

Supreme Court of Virginia

October 31, 2019

NOAH SALIM BURNHAM
v.
COMMONWEALTH OF VIRGINIA

          FROM THE COURT OF APPEALS OF VIRGINIA

          OPINION

          STEPHEN R. McCULLOUGH, JUSTICE.

         Noah Salim Burnham challenges the trial court's jurisdiction to revoke two suspended sentences, one for a felony and the other for a misdemeanor. His original 2008 sentencing order imposed suspended sentences for these offenses, placed him on supervised probation for a period of one year, and contained an express condition that he be of good behavior. However, a subsequent probation revocation order concerning these same offenses, entered after a show-cause hearing a little less than one year later in 2009, did not contain an express good behavior requirement. Instead, it placed the defendant on supervised probation for an indefinite period. Burnham was later discharged from probation. Several years after this discharge from probation, the trial court issued another show-cause order based on new felony convictions. Burnham moved to dismiss, contending that the 2009 probation revocation order superseded the 2008 sentencing order and that the trial court lacked jurisdiction to revoke and re-suspend his sentence based on a failure to abide by a good behavior condition. The trial court rejected this argument and proceeded to revoke and re-suspend the remaining portions of Burnham's sentences. For the reasons noted below, we conclude that the trial court could revoke and re-suspend Burnham's felony sentence, but that the court erred in doing the same for his misdemeanor conviction. Therefore, we affirm in part and reverse in part.

         BACKGROUND

         On December 4, 2008, Noah Burnham was convicted in the Hanover County Circuit Court of possession of cocaine, a felony, and driving under a revoked license, third offense, a Class 1 misdemeanor. On the possession of cocaine conviction, the court sentenced him to serve three years in prison, suspended for a period of ten years. The court sentenced Burnham to a sentence of 90 days for the misdemeanor of driving on a revoked license and suspended 80 days of that sentence for a period of one year.

         This sentencing order also contained the following two paragraphs:

Good behavior. The defendant shall be of good behavior for ten years on [the felony possession of cocaine] case . . . and for one year on [the driving on a revoked license] case . . . from his date of sentencing.
Supervised probation. The defendant is placed on probation to commence on his release from incarceration, under the supervision of a Probation Officer of this Court for one year, or unless sooner released by the Court or by the Probation Officer. The defendant shall comply with all the rules and requirements set by the Probation Officer. Probation shall include substance abuse counseling and/or testing as prescribed by the Probation Officer.

         On November 20, 2009, based on a probation violation, the Court found good cause to revoke a portion of these suspended sentences. The Court revoked the entirety of the suspended sentences and then re-suspended all but sixty days of the possession of cocaine sentence. The court also revoked and re-suspended the remaining eighty days of the previously suspended sentence for driving on a revoked license. The order did not impose a specific period of suspension. This order contained the following paragraph:

Supervised probation. The defendant is placed on probation to commence on his release from incarceration, under the supervision of a Probation Officer of this Court for an indefinite period of time or unless sooner released by the Court or by the Probation Officer. The defendant shall comply with all the rules and requirements set by the Probation Officer. Probation shall include substance abuse counseling and/or testing as prescribed by the Probation Officer.

         On January 26, 2011, Burnham was released from probation.

         On January 8, 2015, Burnham was convicted in a neighboring jurisdiction of two new counts of felony possession of a Schedule I/II controlled substance. The Hanover County Circuit Court issued an order to show cause why the suspension of his sentences, as set forth in the December 4, 2008 conviction and sentencing order (J.A. 1), should not be revoked. Burnham acknowledged that he had obtained new convictions, but he objected to any revocation of his suspended sentences. He contended that the good behavior condition of suspension imposed by the original sentencing order was superseded in 2009 with a requirement of probation. Once he was released from probation, Burnham argued, the terms and conditions of his suspended sentence were extinguished. Consequently, in Burnham's view, the court lacked jurisdiction to revoke any portion of his suspended sentence. The court disagreed. It revoked and re-suspended the entirety of his suspended sentence: two years and 305 days on the possession of cocaine conviction and 80 days for the driving on a revoked license conviction. The court placed him on supervised probation for an indefinite period of time and placed him under a new period of good behavior for 10 years.

         Burnham appealed to the Court of Appeals of Virginia. In a per curiam order, that Court affirmed the decision of ...


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