John T. Poffenbarger v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Senior Judge Hodges
Argued at Norfolk, Virginia
JOHN T. POFFENBARGER
v. Record No. 1307-95-1 MEMORANDUM OPINION * BY
JUDGE WILLIAM H. HODGES
COMMONWEALTH OF VIRGINIA MAY 7, 1996
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Dennis F. McMurran, Judge
Dianne G. Ringer, Assistant Public Defender,
for appellant.
Steven A. Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
John T. Poffenbarger appeals the revocation of his suspended
sentence. He contends that the trial court abused its discretion
in considering his new convictions in determining whether he had
violated his probation, where the convictions were for offenses
which predated the start of his probationary period. We find no
reversible error, and therefore affirm the trial court's
judgment.
Background
On July 16, 1993, Poffenbarger was sentenced upon a
conviction for larceny of a firearm. No presentence report was
prepared.
Poffenbarger failed to report to his probation officer,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Derek E. Hunt. As a result, on August 19, 1993, Hunt submitted a
probation violation report to the court. On February 24, 1994,
Hunt submitted an addendum to the probation violation report. In
the addendum, Hunt stated that Poffenbarger had violated
Condition 1 of the suspension by being convicted of forgery in
Norfolk Circuit Court on November 19, 1993.
On August 4, 1994, a new probation officer, Mitzi P.
Cartwright, submitted another addendum to the probation violation
report. That report read, in part:
The purpose of this addendum is to advise the
Court that although subject was convicted on
that Forgery charge in Norfolk Circuit Court
and additionally was convicted and sentenced
for Forgery in Suffolk Circuit Court on May
19, 1994, both of the offense dates for these
offenses occurred prior to July 16, 1993, and
therefore, cannot be used as violation
information. However, subject remains in
violation of Condition #1 in that on April
19, 1994, he was convicted in Portsmouth
Circuit Court on two counts of Forgery and
two counts of Petit Larceny before Judge L.
Cleaves Manning. The offense date for these
offenses was July 27, 1993.
At the June 15, 1995 revocation hearing, Poffenbarger argued
that it was improper for the court to consider offenses committed
prior to July 16, 1993 as a basis for revocation. The court
rejected this argument, finding that the offenses could serve as
a basis for revocation as long as Poffenbarger was convicted of
the offenses after July 16, 1993. The court also stated that if
it had been aware of the pending charges on July 16, 1993, then
it "probably would have rejected the plea agreement" entered into
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by the parties.
The court revoked the suspended sentence, sentenced
Poffenbarger to confinement in the Portsmouth City Jail for six
months, and, upon his release, placed him on three years
supervised probation.
Analysis
Poffenbarger argues that the court erred in considering, as
a basis for revocation, those offenses which occurred prior to
entry of the July 16, 1993 sentencing order. The Commonwealth,
on the other hand, contends that the court could consider those
offenses because Poffenbarger had concealed the pending charges
at the time of the sentencing hearing. As such, the Commonwealth
argues, Poffenbarger perpetrated a fraud upon the court, and the
court could properly revoke his probation.
It is well settled that
[t]he term of suspension of a sentence
generally commences on the day of entry of
the order imposing the suspended sentence.
The suspension of a sentence may be revoked
upon a showing that its terms have been
violated. Generally, where the suspension is
conditioned upon future good conduct, the
revocation of the suspension must be
predicated upon a showing of conduct which
occurs subsequent to the imposition of the
suspended sentence.
* * * * * * *
An exception to the foregoing general rule is
recognized in cases involving fraud on a
court.
Bryce v. Commonwealth, 13 Va. App. 589, 590-91, 414 S.E.2d 417,
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418 (1992) (citation omitted).
Deceit, untruthfulness and deception at the
time of the sentencing are always grounds for
revoking a suspended sentence. State v.
Lintz, 162 Mont. 102, 106, 509 P.2d 13, 15
(1973). There is "significant authority for
the proposition that a trial court has the
discretion to revoke probation if information
is discovered which, had it been known at the
time of sentencing, would have led the trial
court to deny probation." State v. Darrin,
325 N.W.2d 110, 113 (Iowa 1982); see also
Annotation: Revocation of Probation Based on
Defendant's Misrepresentation or Concealment
of Information From Trial Court, 36 A.L.R. 4th
1175 (1985).
Cottrell v. Commonwealth, 12 Va. App. 570, 574, 405 S.E.2d 438,
441 (1991).
Here, the trial judge at the time of sentencing was unaware
of Poffenbarger's pending charges. However, nothing in this
record indicates that his lack of awareness was attributable to
any "deceit, untruthfulness [or] deception" on the part of
Poffenbarger. Accordingly, the Commonwealth's fraud argument
lacks merit, and the trial judge erred in considering the
offenses which occurred prior to sentencing.
In this case, however, the court's error was harmless.
A nonconstitutional error is harmless if "it
plainly appears from the record and the
evidence given at trial that the error did
not affect the verdict." Lavinder v.
Commonwealth, 12 Va. App. 1003, 1005, 407
S.E.2d 910, 911 (1991) (en banc). "An error
does not affect a verdict if a reviewing
court can conclude, without usurping the
jury's fact finding function, that had the
error not occurred, the verdict would have
been the same." Id.
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Scott v. Commonwealth, 18 Va. App. 692, 695, 446 S.E.2d 619, 620
(1994).
Here, the court had before it evidence of other grounds that
would justify revocation of Poffenbarger's suspended sentence:
(a) his failure to report to his probation officer, and (b) four
convictions for offenses which occurred on July 27, 1993. In
light of this evidence, we conclude "that had the error not
occurred, the verdict would have been the same." Under these
circumstances, and upon our review of the record, it is clear
that the trial court, despite its error, would have revoked
Poffenbarger's suspended sentence, and that Poffenbarger could
not have hoped for any better result than revocation of a mere
six months of that suspended sentence.
Affirmed.
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