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Thorpe v. Commonwealth2/19/2002
Argued at Alexandria, Virginia
MEMORANDUM OPINION
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY Carleton Penn, Judge Designate
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 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.
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 . 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 that he had missed sessions of the outpatient program, but explained t
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