Darry Wayne Osborne v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia
DARRY WAYNE OSBORNE MEMORANDUM OPINION* BY
v. 	Record No. 0326-98-3 	JUDGE DONALD W. LEMONS
FEBRUARY 23, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
Donald R. Mullins, Judge
Robert M. Galumbeck (Dudley, Galumbeck &
Necessary, on brief), for appellant.
Daniel J. Munroe, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
On May 26, 1995, after receiving a presentence report, the
court sentenced Osborne to 20 years incarceration, suspended upon
conditions including that he have no contact with the victim or
the victim’s mother and that he have no contact with children.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
On February 9, 1995, pursuant to a plea agreement, Darry
Wayne Osborne was convicted of two counts of aggravated sexual
battery. 	On January 13, 1998, the court revoked his sentence
after finding that he was in violation of his suspended sentence
and probation. 	On appeal, Osborne argues that the trial court
revoked the suspended sentence on grounds not contained in the
notice that he received. 	We disagree and affirm the trial
court’s revocation of his suspended sentence.
I. 	BACKGROUND

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The conditions of his probation were repeated to him in monthly
meetings with his probation officer. 	Osborne’s counselor wrote
to the probation officer on May 22, 1995, requesting that contact
between Osborne and the victim and victim’s mother be permitted
in a supervised setting. 	Such permission was not given.
By letter dated December 8, 1997, the probation officer informed
the trial judge that Osborne had violated the terms of his
suspended sentence by having unauthorized contact with the victim
and the victim’s mother. 	On December 11, 1997, Osborne met with
his probation officer and was "served" with a document entitled
"Designation of Probation Conditions Violated" which indicated
that he had unauthorized contact with the victim and the victim’s
mother. 	Osborne signed the document and also received a copy of
the December 8, 1997 letter to the court. 	Osborne’s attorney was
mailed copies of these documents.
II. 	REVOCATION OF SUSPENDED SENTENCE
At the show cause hearing on December 15, 1997, Osborne was
asked by the court, "Mr. Osborne, you’ve been charged with
violating the terms of your probation. 	Have you received notice
of that?" 	Osborne replied that he did have notice and that he
had discussed the matter with his attorney. 	Counsel indicated
that the defense was ready to proceed, and Osborne pled "not
guilty" to the charge of violating his suspended sentence and the
terms of his probation. 	At the conclusion of the hearing the
trial judge found that Osborne had violated the terms of his
suspended sentence and his probation and revoked his previously

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suspended sentence of 20 years. 	The court’s order entered on
January 13, 1998 specifically recites that the revocation is
premised upon finding "the defendant guilty of violating the
terms of his probation and suspended sentence."
At the revocation hearing, the trial judge stated:
We had a horrible situation here when I
sentenced Mr. Osborne. 	And I felt that he
needed treatment because if he didn’t get
treatment and if that treatment was not
successful, helpful, then little children all
over this country were at risk. 	This is a
man that travels from coast to coast. 	I was
hoping that the sexual offender treatment
would alleviate that danger. 	It appears to
the Court that the counseling that Mr.
Osborne has received from Mr. Ferris is of no
effect. 	It had no effect on Mr. Osborne.
He’s received no benefit from that
whatsoever. 	And the person that should have
been I guess charged in this matter and one
that I just cannot understand the actions of
is the mother of this child. 	That while this
was going on and before this prosecution
began she knew about this sexual molestation
and did nothing about it. 	And the only way I
can figure that out is that she was receiving
financial benefit from this man that was
molesting her child. 	It’s a pitiful excuse
for not protecting the innocent, helpless
child. 	I don’t think that there is anything
this Court can do to protect other children
and this particular victim anymore. 	I’m
going to revoke Mr. Osborne’s suspended
sentence and have him serve that time.
Based upon the judge’s remarks, Osborne complains on appeal
that the trial court revoked the suspended sentence on grounds
that were not contained in any notice he received, that no facts
were presented to support these grounds, and that the evidence
was insufficient to support the revocation.

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Osborne’s claims are without merit. 	Osborne admitted the
contacts with the victim and the victim’s mother. 	He contends
that he misunderstood the restrictions. 	The trial judge was
entitled to weigh the credibility of the witnesses and,
obviously, resolved this issue against Osborne. 	Even Osborne’s
counsel in closing remarks to the court stated, "We are here
because of this violation of the court order and probation.
There have been no other violations of the law." 	Given that
there was no dispute over the fact of contact, it is
understandable why the trial judge did not make extended remarks
on that subject.
Osborne also contends that because the trial judge opined
that the sexual offender treatment was not effective, his opinion
must be the basis for the revocation. 	He contends that he had no
notice of revocation based on ineffectiveness of treatment and
that no evidence was presented to support the judge’s opinion.
In context it is clear to us that the trial judge concluded that
because Osborne had ignored his order to have no contact with the
victim and the victim’s mother, the sexual offender treatment was
not effective. 	Whether this conclusion is warranted may require
further evidence, but it was the unauthorized contact and not the
lack of effectiveness of treatment that served as the basis for
the revocation.
The revocation of a suspended sentence is left to the
discretion of the trial court. 	See Slayton v. Commonwealth, 185
Va. 357, 365, 38 S.E.2d 479, 483 (1946). 	The trial court’s

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findings of fact and judgment as to an order of revocation are
reversible only upon a clear showing of abuse of such discretion.
See Hamilton v. Commonwealth, 217 Va. 325, 327, 228 S.E.2d 555,
556 (1976). 	Osborne had ample notice of the reason for his
hearing to show cause why his suspended sentence should not be
revoked. 	The court was entitled to weigh the credibility of the
witnesses and reject Osborne’s explanation that he was confused
about the restrictions. 	The court revoked his sentence because
of unauthorized contact with the victim and the victim’s mother
in direct violation of the terms of his suspended sentence and
probation. 	The evidence was sufficient to support the finding,
and the trial court’s revocation of Osborne’s previously
suspended sentence is affirmed.
Affirmed.