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Date: 09-20-2020
Case Style:
Gregory Lee Wallace, s/k/a Gregory Lee Wallace, Jr. v. Commonwealth of Virginia
Case Number: 1631-19-4
Judge: WESLEY G. RUSSELL, JR.
Court: COURT OF APPEALS OF VIRGINIA
Plaintiff's Attorney: Rosemary V. Bourne, Senior Assistant Attorney General (Mark R.
Herring, Attorney General, on brief)
Defendant's Attorney:
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Description: Culpeper, VA - possession of cocaine, violating the conditions of a previously suspended sentence
In June 2009, Wallace pled guilty to a charge of possession of cocaine. Consistent with the
terms of his plea agreement, he was convicted and sentenced to pay a fine and serve four years in
the Virginia Department of Corrections, with three years and nine months of that sentence
suspended. As a result of the suspended sentence, Wallace was placed on supervised probation.
Less than six months later, Wallace’s probation officer filed a major violation report
alleging that Wallace was in violation of the terms of probation. On February 17, 2010, the trial
court held a revocation hearing and found Wallace in violation of the conditions of his suspended
sentence. The trial court imposed the three years and nine months remaining on the initial sentence,
but resuspended all but sixty days of the sentence and ordered that Wallace be returned to probation
upon his release.
In December 2011, Wallace’s probation officer again alleged that Wallace was in violation
of the terms of probation. The trial court held a revocation hearing in January 2012. Finding
Wallace again to be in violation of the conditions of his suspended sentence, the trial court imposed
the three years and seven months remaining on the initial sentence; however, it resuspended all but
six months of the sentence and ordered that Wallace be returned to probation upon his release.
In February 2013, Wallace’s probation officer filed yet another major violation report
alleging that Wallace was in violation of the terms of probation. In February 2015, the trial court
held another revocation hearing and found Wallace to be in violation of the conditions of his
suspended sentence. The trial court imposed the three years and one month remaining on the initial
sentence, but resuspended all but seven months of that sentence. The trial court ordered that
Wallace be returned to probation upon his release.
2 We state the evidence in the light most favorable to the Commonwealth because it was
the prevailing party in the proceedings below. See Gerald v. Commonwealth, 295 Va. 469, 472
(2018).
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In January 2016, Wallace’s probation officer filed yet another major violation report
alleging that Wallace had again violated the terms of probation. The trial court once again found
Wallace in violation of the conditions of his suspended sentence. The trial court imposed the two
years and six months remaining on the initial sentence, but resuspended all but six months of that
sentence. The trial court ordered that Wallace be returned to probation upon his release.
In November 2017, Wallace’s probation officer issued another major violation report
alleging that Wallace again had violated the terms of probation. As a result, the trial court issued a
show cause order regarding the alleged violation.
After several continuances of the matter, Wallace appeared in the trial court related to the
show cause on May 21, 2018. At that time, a revocation hearing date was set, and Wallace was
recognized to appear at that hearing. However, at the same hearing, Wallace also was arraigned on
multiple new felony charges relating to firearm offenses. The new firearms charges were not the
subject of the major violation report, and thus, were wholly unrelated to the revocation
proceeding. Wallace was held without bond on the new felony charges.
Over the next several months, the revocation hearing was continued on multiple
occasions.3
While the matter was pending, Wallace filed a motion regarding the time he was
jailed while awaiting trial on the wholly unrelated felony firearms charges. Specifically, he
averred that he had been jailed awaiting trial on those charges “for approximately 9 months”
after his arrest on November 28, 2017, that “a jury acquitted [him] of one count of possession of
a firearm by a previously convicted non-violent felon” on August 10, 2018, and that the trial
court had “granted the Commonwealth’s attorney’s motion to n[o]lle prosequi the remaining
[firearms] charges” on August 28, 2018. Citing Code § 53.1-187, Wallace “request[ed] that if he
3 The continuances were the result of motions made by Wallace. He sought continuances
because he had additional, unrelated charges pending in another jurisdiction and wished to
resolve those charges before proceeding with the revocation hearing.
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is found in violation of his probation and if any active incarceration time is ordered, that he be
given credit for time served awaiting trial” on the unrelated firearms charges. In seeking this
relief, Wallace did not contend that the trial court was required by the United States Constitution
or Code § 53.1-187 to give him credit for time served on the unrelated charges, expressly stating
“[t]hat because a show cause was issued for the probation violation,” he was not entitled to
“automatically receive credit for the time served[.]”
The trial court held the revocation hearing on January 17, 2019. Wallace’s probation
officer testified that Wallace had violated the terms of probation in that he had tested positive for
marijuana. Wallace testified at length and advised the trial court that his many children were the
most important things in his life, that he was trying to become a productive member of society,
and that he wanted to be a better father to his children. He further advised the trial court that he
intended to move to Washington, D.C. where he had more resources and a better support system.
Prior to the trial court making its finding, Wallace raised the issue he had raised in his
previously filed written motion, that, if the trial court imposed an active sentence, it should
award him credit for the time he spent in jail awaiting trial for the unrelated felony firearms
offenses. Specifically, he argued that
So, we believe under the statute[, Code § 53.1-187,] it’s within the
[j]udge’s discretion to allow . . . credit for time served . . . . If the
[trial c]ourt doesn’t feel it’s within the [trial c]ourt’s authority to
do so, we’d still ask for consideration of that when facing sentence
of Mr. Wallace. So, we’d ask for that nine month time served to
be his punishment and then for him to be placed back on probation.
(Emphasis added). As with his written motion, Wallace did not assert that either the United
States Constitution or Code § 53.1-187 required the trial court to credit him for the time he spent
in jail on the unrelated firearms charges.
Having heard the evidence and the arguments of the parties, the trial court made its ruling
from the bench, stating:
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All right, so what I’m going to do is revoke the outstanding
two years and delay imposition to a date certain and give you the
opportunity to stand behind what you’ve said today. So I’m---I’ve
written this down, if you’re fully compliant when you come back,
the [c]ourt will suspend the sentence on terms and conditions. If
you come back and you’re not compliant then you could expect to
serve the two years. You understand?
Wallace responded that he understood the trial court’s remarks, and the status hearing was set for
August 27, 2019. The trial court recognized Wallace for his appearance on that date.
At that hearing, the probation officer testified that, since the last hearing, Wallace had
been convicted of two counts of possession of marijuana, had missed several scheduled
appointments, had tested positive for marijuana in May, and had declined to provide a urine
sample on two other occasions when one had been requested. Additionally, Wallace had failed
to appear three times in the Culpeper Juvenile and Domestic Relations District Court, and he was
jailed for those failure to appear offenses.
Wallace testified and offered his explanations for his various failures to comply with the
conditions the trial court had imposed. In argument, his counsel stressed that at least some of the
new convictions were for conduct that occurred before the January 2019 revocation hearing. His
counsel also again requested that the trial court offset any active sentence it imposed with credit
for the time Wallace spent in jail awaiting trial on the unrelated firearms charges. Again,
Wallace did not assert that any constitutional provision or Code § 53.1-187 required the trial
court to award him credit for that time.
In response to Wallace’s failure to comply with the conditions he had been given at the
January 2019 revocation hearing and his request for credit for time served on the unrelated
charges, the trial court stated:
You know, the [trial court] has bent over backwards for this
man . . . , and he had pretty simple things to do since January. Just
attend the meetings and---and keep clean. That’s all he had to do.
And he couldn’t do it. And so the time has come to serve, and let
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me point out to you that the---the guidelines are well in excess of
the two years that he has left, so it just---he needs to serve the time
and be done with this and go on with his life. The time is up. I
impose the two years and if he has served any time on these
charges, in this probation violation, he will be given credit. . . .
[H]e won’t be given credit for . . . other charges.
The trial court then remanded Wallace into custody for him to serve the two years remaining on
his original sentence from 2009.
Wallace now appeals, asserting two alleged errors. First, he contends that “[t]he trial
court abused its discretion [in] imposing . . . the entirety of his remaining sentence” from the
2009 conviction.4
Second, for the first time on appeal, he asserts that “the Sixth and Fourteenth
Amendments of the U.S. Constitution” and Code § 53.1-187 required the trial court to award him
credit against his sentence for the time he spent in jail awaiting trial on the unrelated firearms
charges.
ANALYSIS
I. Standard of review
Sentencing “decisions—if within the lawful boundaries of applicable sentencing statutes
and constitutional limitations—are vested in the sound discretion of trial judges, not appellate
judges.” Du v. Commonwealth, 292 Va. 555, 563 (2016). Accordingly, we review Wallace’s
challenge to the trial court’s decision to impose the remainder of his previously suspended
sentence for an abuse of discretion. Jacobs v. Commonwealth, 61 Va. App. 529, 535 (2013).
Wallace’s second assignment of error, that the trial court erred by failing to grant him
credit for time served awaiting trial on unrelated charges, involves the interpretation of the
4
In February 2020, Wallace filed two pro se motions seeking leave to file a supplemental
brief in addition to the then pending petition for appeal that had been filed by his counsel. On
March 10, 2020, a judge of this Court granted Wallace’s petition for appeal in its entirety,
mooting Wallace’s motions to file a pro se brief in support of the petition. Accordingly, we deny
said motions.
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United States Constitution, Code § 53.1-187, and, given our resolution, the Rules of the Supreme
Court of Virginia. As such, it presents a question of law subject to de novo review. Minor v.
Commonwealth, 66 Va. App. 728, 738 (2016).
II. Imposition of previously suspended sentence
“A Virginia trial court ‘clearly’ acts within the scope of its sentencing authority ‘when it
chooses a point within the permitted statutory range’ at which to fix punishment.” Du, 292 Va.
at 564 (quoting Alston v. Commonwealth, 274 Va. 759, 771 (2007)). In the ordinary course,
“once it is determined that a sentence is within the limitations set forth in the statute under which
it is imposed, appellate review is at an end.” Id. at 565 (quoting Dorszynski v. United States,
418 U.S. 424, 431 (1974)). Here, there is no dispute that Wallace’s original sentence in 2009, a
fine and four years of incarceration, fell within the permissible statutory range. Nevertheless,
Wallace contends that the trial court’s imposition of a portion of that sentence, which the trial
court previously had suspended, constituted an abuse of discretion.
A trial court’s decision to suspend some or all of a valid sentence “represents ‘an act of
grace on the part of the Commonwealth to one who has been convicted and sentenced to a term
of confinement.’” Price v. Commonwealth, 51 Va. App. 443, 448 (2008) (quoting Pierce v.
Commonwealth, 48 Va. App. 660, 667 (2006)). Code § 19.2-303 provides that, having imposed
a sentence, a trial “court may suspend imposition of sentence or suspend the sentence in whole or
part and in addition may place the defendant on probation under such conditions as the court
shall determine[.]” The only limitation on a trial court’s ability to impose such conditions is that
the conditions must be reasonable. Du, 292 Va. at 563.
When the beneficiary of a suspended sentence is alleged to have violated the conditions
of the suspended sentence, the proceedings are governed by Code § 19.2-306. Pertinent here,
Code § 19.2-306(A) provides that the trial “court may revoke the suspension of sentence for any
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cause the court deems sufficient that occurred at any time within the probation period, or within
the period of suspension fixed by the court.” Code § 19.2-306(C)(ii) provides that, if the trial
court finds a defendant to have violated the terms of his suspended sentence, it “shall revoke the
suspension and the original sentence shall be in full force and effect.” The statute then provides
that the trial “court may again suspend all or any part of this sentence and may place the
defendant upon terms and conditions or probation.” Code § 19.2-306(C). Accordingly, “[w]hen
a defendant fails to comply with the terms and conditions of a suspended sentence, the trial court
has the power to revoke the suspension of the sentence in whole or in part.” Alsberry v.
Commonwealth, 39 Va. App. 314, 320 (2002).
Much as there was no dispute that the original four-year sentence fell within the statutory
range, there is no dispute that the conditions the trial court imposed when it suspended portions
of that sentence over time were reasonable and that Wallace repeatedly violated those conditions,
including violating them in the manner alleged in the revocation hearing that gives rise to this
appeal. With that established, the trial court properly revoked the remaining two years left on the
original sentence. See Code § 19.2-306(C)(ii) (upon finding a violation, a trial court “shall
revoke the suspension and the original sentence shall be in full force and effect[]”). Although
Code § 19.2-306(C) permitted the trial court to resuspend some portion of the remainder of the
original sentence, it did not require the trial court to do so. In the face of undisputed violations
of the conditions of a suspended sentence, a trial court does not abuse its discretion when,
consistent with Code § 19.2-306(C)(ii), it revokes the suspended sentence and imposes the active
term of incarceration that it initially had imposed upon conviction.
5
Accordingly, the trial court
5 Although a trial court may impose all of the remainder of an original, suspended
sentence upon a defendant’s first violation of the conditions of the suspension, the
reasonableness of the trial court’s decision here is underscored by Wallace’s history of repeated
violations. In the ten years since he initially was sentenced, Wallace formally was found to have
violated the conditions of his suspended sentence on six occasions. When the trial court made
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did not err in imposing the remainder of the original sentence, and its judgment in this regard is
affirmed.
III. Claim regarding credit for time served on unrelated charges
For the first time on appeal, Wallace asserts that “the Sixth and Fourteenth Amendments
of the U.S. Constitution” and Code § 53.1-1876
required the trial court to award him credit
against his sentence for the time he spent in jail awaiting trial on the unrelated firearms charges.
Wallace never made this argument in the trial court. In fact, he took a contrary position, arguing
that the trial court could, but was not required to, award him such credit. As a result and for the
reasons that follow, Wallace’s current argument is not properly before us. Accordingly, we
affirm the judgment of the trial court.
Rule 5A:18, which is often referred to as the contemporaneous objection rule, provides
that “[n]o ruling of the trial court . . . will be considered as a basis for reversal unless an
objection was stated with reasonable certainty at the time of the ruling[.]”7
The purpose of the
rule “is to allow the trial court a fair opportunity to resolve the issue at trial[.]” Creamer v.
Commonwealth, 64 Va. App. 185, 195 (2015). In order to have a fair opportunity to resolve an
the finding of the sixth violation in the proceeding giving rise to this appeal, it did not
immediately impose the ultimate sentence, but rather, gave Wallace yet another chance. Only
after Wallace, despite having been warned that failure to comply would result in the entire
remaining sentence being imposed failed again to comply with the conditions, did the trial court
impose the remainder of the original sentence.
6 Code § 53.1-187 provides that:
Any person who is sentenced to a term of confinement in a
correctional facility shall have deducted from any such term all time
actually spent by the person . . . in a state or local correctional
facility awaiting trial or pending an appeal . . . . When entering the
final order in any such case, the [trial] court shall provide that the
person so convicted be given credit for the time so spent.
7 Although there are limited exceptions to the bar imposed by Rule 5A:18, Wallace has
not argued that those exceptions are applicable here.
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issue, a trial court must be alerted to the precise issue being raised, see Kelly v. Commonwealth,
42 Va. App. 347, 354 (2004), and thus, the rule requires that arguments be made with specificity
in order to preserve an issue for appeal, Nelson v. Commonwealth, 50 Va. App. 413, 420-21
(2007); see also Edwards v. Commonwealth, 41 Va. App. 752, 760 (2003) (en banc) (holding
that, pursuant to the Rule, “[m]aking one specific argument on an issue does not preserve a
separate legal point on the same issue for review”). The bar of Rule 5A:18 applies to both
non-constitutional and constitutional claims. Le v. Commonwealth, 65 Va. App. 66, 75 (2015)
(recognizing that “we have repeatedly held that even constitutional claims can be barred by Rule
5A:18”).
In the proceedings below, Wallace never argued that “the Sixth and Fourteenth
Amendments of the U.S. Constitution, require[]” he be given credit for the time he spent in jail
awaiting trial on unrelated charges. His written motion seeking such credit does not reference
the Sixth Amendment, the Fourteenth Amendment, or any provision of the Constitution.
Similarly, his oral arguments to the trial court seeking such credit do not raise the referenced
amendments or any other portion of the United States Constitution as a basis for the relief
sought. Because Wallace never raised a constitutional claim in the trial court, he cannot assert
one on appeal. Rule 5A:18.
In both his written motion and in his oral arguments in the trial court seeking credit for
the time he spent in jail while awaiting trial on unrelated offenses, Wallace did cite to
Code § 53.1-187. In doing so, however, he did not argue, as he does on appeal, that the statute
required the trial court to give him credit for the time he spent in jail awaiting trial on unrelated
charges. To the contrary, Wallace argued below that, under the terms of the statute, he “would
not automatically receive credit for the time he spent awaiting trial” on the unrelated charges and
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that the decision to grant him such credit lay entirely “within the [j]udge’s discretion[.]”8
Because Wallace never argued in the trial court that Code § 53.1-187 required the trial court to
give him credit for the time he spent in jail awaiting trial on unrelated charges, he may not do so
on appeal. Rule 5A:18; Edwards, 41 Va. App. at 760. Accordingly, the judgment of the trial
court is affirmed.9
Outcome: For the foregoing reasons, the judgment of the trial court is affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: