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Lee v. Commonwealth

Court of Appeals of Virginia

November 19, 2019

GERARD LAMONTESE LEE
v.
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK Carl E. Eason, Jr., Judge.

          Sean E. Harris, Senior Trial Attorney (Office of Public Defender, on briefs), for appellant.

          Brittany A. Dunn-Pirio, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Beales, Huff and Athey Argued at Norfolk, Virginia.

          OPINION

          RANDOLPH A. BEALES JUDGE.

         This case concerns the question of when the period of suspension of a suspended sentence begins to run. In January 2014, appellant Gerard Lamontese Lee was sentenced to multiple terms of incarceration with a portion of those sentences suspended for a period of three years. In December 2018, the trial court revoked the suspensions and reimposed a portion of the original sentences to be served. On appeal, Lee argues that the period of suspension of a suspended sentence must begin running upon the trial court's pronouncement of the suspension.

         I. Background

         By means of sentencing orders entered on January 27, 2014, Lee was sentenced for several crimes for which he had been convicted. For grand larceny, he was sentenced to four years of incarceration, with two years and six months suspended. For felony failure to appear, he was sentenced to one year of incarceration, with nine months suspended. Both sentencing orders included the following language:

The Court SUSPENDS [the suspended portion of the sentence] for a period of THREE (3) YEARS, upon the following conditions:
Good Behavior. The defendant shall be of good behavior for a period of THREE (3) YEARS from the defendant's release from confinement.
Supervised Probation. The defendant is placed on probation on his release from incarceration, under the supervision of a Probation Officer for a period of THREE (3) YEARS, or unless sooner released by the court or by the probation officer.

         Lee was released from incarceration on or about April 12, 2016. On September 11, 2017, the trial court issued capiases to show cause why Lee's suspended sentences should not be revoked for failure to comply with the terms and conditions of his probation.[1] Lee made a motion to dismiss the probation violation charges against him, arguing that "the alleged misbehavior in this case . . . all occurred after Defendant's period of suspension expired." On December 10, 2018, the trial court denied Lee's motion to dismiss. The Commonwealth made proffers of evidence of numerous violations of probation including, among other things, failure to turn himself in because of an arrest warrant in June 2017; April 26, 2018 convictions for traffic violations that occurred in February 2018; and July 23, 2018 convictions for felonious eluding police and child abuse. The trial court found that by the new convictions, Lee had violated the condition of good behavior in his suspended sentences.

         By orders entered December 11, 2018, the trial court revoked and reimposed Lee's suspended sentences - two years and six months (with two years re-suspended) for Lee's grand larceny sentence, and nine months for Lee's failure to appear sentence.

         On appeal, Lee, relying on Green v. Commonwealth, 69 Va.App. 99 (2018), argues that since "a sentence is suspended 'from the moment following its pronouncement, '" id. at 104 (quoting Coffey v. Commonwealth, 209 Va. 760, 763 (1969)), a period of suspension must also start at the pronouncement of the sentence. He also argues that certain language from Green provides that there is no tolling provision within Code ยง 19.2-306 to toll the period of suspension. Based on those premises, Lee further argues that since the original sentencing orders were entered in January 2014, the three-year period of suspension expired in January 2017, and consequently "the court was ...


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