Opinion
Record No. 1944-93-2
Decided: March 14, 1995
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG, Oliver A. Pollard, Jr., Judge
Gerald G. Poindexter (Poindexter Poindexter, on briefs), for appellant.
Robert H. Anderson, III, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Coleman, Elder and Senior Judge Cole
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
William Nathaniel Worsham (appellant) was convicted of possessing cocaine with the intent to distribute, in violation of Code Sec. 18.2-248. Appellant appeals the trial court's decision to sentence him to a term of nine years in the penitentiary, of which four-and-one-half years were suspended conditioned on appellant's good behavior for forty years. Appellant contends that this requirement constitutes excessive and unreasonable punishment. Because we hold that the forty year term of suspension was not excessive or unreasonable, we affirm the trial court's ruling.
On May 20, 1992, Petersburg detectives apprehended appellant after he attempted to flee from them with a plastic baggie on his person. Appellant admitted he was selling drugs. The detectives recovered $98 from appellant's person and thirty-seven bags of crack cocaine, which appellant had thrown under a house as he fled from the detectives. On May 21, 1993, appellant entered a conditional plea of guilty to the charge of possession of cocaine with the intent to distribute.
The circuit court found appellant guilty and sentenced him to a term of nine years in the penitentiary. Execution of four-and-one-half years was suspended conditioned upon appellant's good behavior for forty years. The court directed that a $500 fine and the remaining four-and-one-half years active sentence be suspended after the successful completion of the boot camp program. On September 27, 1993, the circuit court denied appellant's request to reduce the period of good behavior or otherwise modify the sentence.
We hold the trial court did not abuse its discretion in ordering that appellant be of good behavior for forty years. We initially reject the Commonwealth's contention that appellant failed to preserve this claim for appeal. Appellant met the requirements of Rule 5A:18, and the court's September 27, 1993, order did not violate Rule 1:1's mandate that judgments may remain under the trial court's control for only twenty-one days.
Reaching the merits of appellant's claim, we are guided by certain well-accepted principles. First, trial courts are granted considerable discretion in matters of suspension and probation. See, e.g., Nuckoles v. Commonwealth, 12 Va. App. 1083, 1085-86, 407 S.E.2d 355, 356 (1991); Grant v. Commonwealth, 223 Va. 680, 684, 292 S.E.2d 348, 350 (1982). "The only limitation placed upon the discretion of the trial court in its determination of what conditions are to be imposed is that a condition be 'reasonable.' " Nuckoles, 12 Va. App. at 1086, 407 S.E.2d at 356 (quoting Dyke v. Commonwealth, 193 Va. 478, 484, 69 S.E.2d 483, 486 (1952)). Under Loving v. Commonwealth, 206 Va. 924, 147 S.E.2d 78 (1966), rev'd on other grounds, 388 U.S. 1 (1976), a condition of suspension "must be reasonable, having due regard to the nature of the offense, the background of the offender and the surrounding circumstances." Id. at 930, 147 S.E.2d at 83. "Unreasonable 'sentences . . . will . . . be vacated and set aside.' " Deal v. Commonwealth, 15 Va. App. 157, 161, 421 S.E.2d 897, 899 (1992) (quoting Loving, 206 Va. at 931, 147 S.E.2d at 83). Furthermore, as we have stated, "[w]hen a sentence prescribes a maximum imprisonment penalty and the sentence does not exceed that maximum, the sentence will not be overturned as being an abuse of discretion." Fortune v. Commonwealth, 12 Va. App. 643, 651, 406 S.E.2d 47, 51 (1991) (citations omitted). Furthermore, Code Sec. 19.2-306 provides that if no period of probation or suspension is set by the court the trial court may revoke the suspension of sentence up to one year after expiration of the maximum period for which the defendant might have been sentenced, which in this case was forty years.
In this case, the statute provides for punishment of up to forty years in the penitentiary and a fine up to $500,000. Code Sec. 18.2-248(C). Instead, the trial court decided to impose a far less severe sentence; in accordance with the plea agreement the trial court suspended appellant's active sentence upon his successful completion of Boot Camp. See Code Sec. 19.2-316.1. There is evidence in the record that the trial court evaluated all evidence presented to it concerning possible mitigating factors and also held a hearing at appellant's request to reconsider the excessiveness of the sentence. We cannot say the trial court abused its discretion in setting appellant's sentence.
Accordingly, we affirm the trial court's sentencing order.
Affirmed.