Joseph Donald Thorpe, Jr. v. Commonwealth of VA ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Humphreys
Argued at Alexandria, Virginia
JOSEPH DONALD THORPE, JR.
MEMORANDUM OPINION * BY
v. Record No. 1623-00-4 JUDGE ROBERT J. HUMPHREYS
FEBRUARY 19, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
Carleton Penn, Judge Designate
Joseph R. Winston, Special Appellate Counsel
(Public Defender Commission, on brief), for
appellant.
Robert H. Anderson, III, Senior Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.
Joseph Donald Thorpe, Jr. appeals an order of the trial
court which revoked his suspended sentence and probation, and
sentenced him to six months in jail. Thorpe contends that the
court erred in finding he had violated the terms of his
probation. For the reasons that follow, we affirm.
On June 21, 1996, Thorpe entered into a plea agreement
wherein he agreed to plead guilty to operating a motor vehicle
after having been declared an habitual offender and felonious
failure to appear. By way of the plea agreement, Thorpe also
stipulated that he had violated the terms of the probation he
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
had been placed on in 1993, following his conviction for another
offense. In exchange, the Commonwealth agreed to recommend the
imposition of the 1993 sentence, in addition to a sentence of
five years, with three years suspended on the habitual offender
charge, and a suspended three-year sentence on the charge of
failure to appear. Both parties agreed that upon Thorpe's
release under these terms, he would be placed on supervised
probation for five years "upon the usual terms and conditions,
including that he be of good behavior and violate no laws of the
Commonwealth . . . ."
Thorpe was sentenced on August 15, 1996, and an order of
final judgment, amended on December 2, 1996, was entered to
reflect the terms of the plea agreement, including the provision
that Thorpe would be placed on supervised probation for a period
of five years following his release from prison.
Thorpe was ultimately released from prison and began
supervised probation on July 6, 1999. On that date, Thorpe met
with his probation officer and signed a written list of the
conditions of his probation. The relevant conditions are set
forth below:
Condition #6: I will follow the Probation
and Parole Officer's instructions and be
truthful and cooperative.
Condition #7: I will not use any alcoholic
beverages to the extent that it disrupts or
interferes with my employment or orderly
conduct.
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On December 20, 1999, Thorpe reported to his appointment
with his probation officer, Thomas Quinn, demonstrating evidence
of "excessive alcohol use." Quinn gave Thorpe a breathalyzer
test which disclosed that Thorpe had a blood alcohol content of
0.15%. At that time, Quinn verbally advised Thorpe to "remain
alcohol free." Nevertheless, Thorpe registered a blood alcohol
level of 0.068% during an unscheduled home visit by Quinn on
March 21, 2000.
Accordingly, on March 23, 2000, Quinn filed a Report of
Probation Violations with the court, recommending that the court
schedule a show cause hearing. The report set forth the
circumstances described above, in addition to Thorpe's continued
failure to attend counseling sessions at the Fauquier Family
Guidance Center's Intensive Outpatient Program, despite Quinn's
instruction that he complete the program.
At the show cause hearing, the Commonwealth introduced
Quinn's report and then rested. Thorpe raised no objection to
the introduction of the report. In his case-in-chief, Thorpe
conceded that on December 20, 1999 his blood alcohol level had
tested as reported by Quinn. Thorpe also agreed that Quinn told
him, "I think you are drinking too much and I want you to lay
off it for a while [sic]. If you don't, I am going to have to
violate you." However, Thorpe testified that he had indeed
consumed alcohol prior to having been administered the
breathalyzer test on March 21, 2000. Finally, Thorpe stated
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that he had missed sessions of the outpatient program, but
explained that he had missed the sessions due to conflicts with
his work schedule. Thorpe claimed he had resolved the issue of
his absences with the therapists in charge of the outpatient
program.
In closing argument, Thorpe contended that since Quinn had
not put his statement to Thorpe regarding consumption of alcohol
in writing, he perceived it as merely a "suggestion." Thus, he
argued he had not violated the actual written conditions of his
probation.
In reaching its decision, the trial court noted:
not only the violation alluded to of the
0.068 [sic] which show[ed] that [Thorpe was]
drinking alcohol, but the Court is more
concerned with a 0.15 [sic] which is about
twice the legal limit.
Accordingly, the trial court found Thorpe had violated the terms
of his probation and ordered him to serve six months of his
remaining sentence.
On appeal, Thorpe claims that the "rule should have been
dismissed," contending that the trial court erred in allowing
the Commonwealth to introduce Quinn's report, which he claims is
inadmissible hearsay, violating his right to due process.
Thorpe also contends that "simple fairness would seem to dictate
that any material modification of the written conditions [of
probation] be in writing." Finally, Thorpe argues that the
Commonwealth failed to present any evidence which proved his
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consumption of alcohol on December 20, 1999 and March 21, 2000
"interfere[d] with [his] employment or orderly conduct."
We note first that pursuant to Rule 5A:18, "[n]o ruling of
the trial court . . . will be considered as a basis for reversal
unless the objection was stated together with the grounds
therefor at the time of the ruling, except for good cause shown
or to enable the Court of Appeals to attain the ends of
justice." See Cottrell v. Commonwealth, 12 Va. App. 570, 574,
405 S.E.2d 438, 441 (1991) (noting this procedural bar applies
even to defendant's constitutional claims). At the hearing,
Thorpe failed to raise any objection to the admission of Quinn's
report and, given our jurisprudence on this issue, and our
review of the record, we find no reason to invoke the ends of
justice exception to Rule 5A:18. 1 Accordingly, we do not address
this issue for purposes of appeal.
Next, we find no merit in Thorpe's argument concerning
Quinn's failure to put his statements regarding Thorpe's
consumption of alcohol in writing. Thorpe has cited no
authority requiring that such instructions be placed in writing.
Instead, he argues that "simple fairness" would dictate that any
1
See Pannell v. Commonwealth, 34 Va. App. 287, 293, 540
S.E.2d 527, 530, aff'd on reh'g en banc, 35 Va. App. 643, 547
S.E.2d 529 (2001), (noting that adult revocation proceedings are
not a stage of criminal prosecution; thus, the process allows
evidence that would not be admissible in an adversary criminal
trial); see also Hess v. Commonwealth, 17 Va. App. 738, 742, 441
S.E.2d 29, 32 (1994).
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change in the written probation conditions be put in writing.
However, we find no "material change" in the probation
conditions as Thorpe suggests. Indeed, the written conditions
of Thorpe's probation specifically required him to "follow the
Probation and Parole Officer's instructions," and to be
"cooperative." Thorpe conceded that Quinn told him to "lay off"
the alcohol and that Quinn had told him if he failed to do so,
Quinn would "violate [him]." We fail to see how this
instruction changed the conditions of Quinn's probation; nor do
we see how the instruction could have been made any clearer to
Thorpe. Moreover, Thorpe's insistence that because the
instruction was not put in writing it was merely a "suggestion,"
simply demonstrates his lack of willingness to cooperate with
Quinn in carrying out the terms and conditions of his probation.
Finally, it is well settled that:
"[w]hen considering the sufficiency of the
evidence on appeal of a criminal conviction,
we must view all the evidence in the light
most favorable to the Commonwealth and
accord to the evidence all reasonable
inferences fairly deducible therefrom.
The . . . verdict will not be disturbed on
appeal unless it is plainly wrong or without
evidence to support it."
Clarke v. Commonwealth, 32 Va. App. 286, 300, 527 S.E.2d 484,
491 (2000) (quoting Clark v. Commonwealth, 30 Va. App. 406,
409-10, 517 S.E.2d 260, 261 (1999)). "'If there is evidence to
support the conviction, the reviewing court is not permitted to
substitute its judgment, even if its view of the evidence might
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differ from the conclusions reached by the finder of fact at the
trial.'" Id. (quoting Commonwealth v. Taylor, 256 Va. 514, 518,
506 S.E.2d 312, 314 (1998)).
So viewed, the evidence demonstrated that Thorpe clearly
violated the written terms of his probation. Thorpe himself
conceded that he failed to follow his "Probation and Parole
Officer's instructions and be . . . cooperative" by consuming
alcohol after having been told by Quinn to "lay off" the alcohol.
Furthermore, Thorpe's blood alcohol level of 0.15% on December 20,
1999, when he reported to Quinn's office, would have been
sufficient for a conviction of public intoxication under Code
§ 18.2-388. Thus, Thorpe also violated his agreement to "be of
good behavior and violate no laws of the Commonwealth."
Accordingly, Thorpe's argument that the evidence was insufficient
to establish he consumed alcohol in a manner which would "disrupt
or interfere with his employment or orderly conduct," is of no
consequence and we, therefore, affirm the judgment of the trial
court.
Affirmed.
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