Opinion
Record No. 0115-93-2
Decided: June 28, 1994
FROM THE CIRCUIT COURT OF HALIFAX COUNTY, Kenneth M. Covington, Judge Designate
Affirmed.
Andrea C. Long (Charles C. Cosby, Jr.; Boone, Beale, Carpenter Cosby, on brief), for appellant.
Marla Lynn Graff, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judge Fitzpatrick and Retired Judge Hodgesd
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
The decision of the trial court is affirmed for the following reasons:
1. A court which has suspended a sentence has the power to revoke it when the defendant fails to comply with the conditions of the suspension. Russnak v. Commonwealth, 10 Va. App. 317, 321, 392 S.E.2d 491, 493 (1990). Whether to revoke the suspension of a sentence lies within the sound discretion of the trial court, whose findings of fact and judgment will not be reversed unless there is a clear showing of an abuse of discretion. Singleton v. Commonwealth, 11 Va. App. 575, 580, 400 S.E.2d 205, 208 (1991); Davis v. Commonwealth, 12 Va. App. 81, 86, 402 S.E.2d 684, 687 (1991); Hamilton v. Commonwealth, 217 Va. 325, 326, 228 S.E.2d 555, 556 (1976).
Appellant's argument that he had not yet had the benefit of any medication and treatment for his psychiatric condition is without merit. At the November 9, 1992 hearing, the trial court ordered that appellant receive local mental health services including counseling and, if prescribed, medication. Appellant refused to cooperate with the probation officer, who was attempting to comply with the court's order, regarding the treatment efforts. Hence, the court had an appropriate basis for revoking appellant's suspended sentence notwithstanding appellant's failure to start psychiatric treatment.
2. Appellant's argument that he never heard the trial court's admonition to cease his vile letter writing is also without merit. The trial court found that appellant heard the admonition at the first hearing because appellant responded to the court. Furthermore, the trial court found that regardless of whether he heard, the letters were "not in keeping with the terms of good behavior." Good behavior is a condition of every suspended sentence. Russnak v. Commonwealth, 10 Va. App. 317, 323, 392 S.E.2d 491, 494 (1990). The trial court's finding is supported by the record and is not plainly wrong.
3. Appellant's claim that the restriction that he cease writing "vile and vicious" letters, as a condition of his suspended sentence, violated his constitutional right to free speech, is also without merit. This condition was reasonable with regard to the nature of appellant's offenses, appellant's background, and the surrounding circumstances. "Probation restrictions may affect fundamental rights such as freedom of speech and freedom of association if the conditions are primarily designed to meet the ends of rehabilitation and protect the public." United States v. Peete, 919 F.2d 1168, 1181 (6th Cir. 1990). The conditions imposed in the case meet that standard. Appellant wrote a letter that he does not contest as being "vile and vicious" in violation of the condition placed upon his suspended sentence. The same information could have been conveyed in less vile and abusive language and would not have been in violation of the restriction. Therefore, the trial court did not abuse its discretion in revoking appellant's suspended sentence.
Affirmed.