Andrea Rose Boggs v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: May 10, 2022
• Docket: 0586212
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges Russell, Ortiz and Raphael

ANDREA ROSE BOGGS MEMORANDUM OPINION* BY v. Record No. 0586-21-2 JUDGE DANIEL E. ORTIZ MAY 10, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY Ricardo Rigual, Judge

(Lauren Whitley; Office of the Public Defender, on briefs), for appellant.

(Jason S. Miyares, Attorney General; Leanna C. Minix, Assistant Attorney General, on brief), for appellee.

Andrea Rose Boggs appeals from the decision of the Circuit Court of Spotsylvania County

revoking a portion of her suspended sentence. Boggs contends that the trial court abused its

discretion by revoking her suspended sentence because it “improperly weighed mitigation factors.”

Boggs also argues that the trial court abused its discretion by denying her a “continuance for the

purposes of treatment.” After examining the briefs and record, the panel unanimously holds that

oral argument is unnecessary because “the appeal is wholly without merit.” Code § 17.1-403(ii)(a);

Rule 5A:27(a). Because the trial court did not abuse its discretion by improperly weighing the

mitigation factors and Boggs does not show she suffered actual prejudice from the trial court

denying her motion for continuance, we affirm the decision of the trial court.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. BACKGROUND

In November 2017, Boggs entered into a deferred disposition agreement with the

Commonwealth under Code § 18.2-251 regarding a charge of possession of a controlled substance

in violation of Code § 18.2-250. The terms of the agreement required Boggs to submit to regular

drug tests during two years of supervised probation and maintain good behavior for a period of five

years. The agreement also provided that if Boggs violated the terms of her probation, the trial court

would terminate her “first offender status” and sentence her to three years’ incarceration with two

years suspended.

On August 14, 2018, the trial court found Boggs in violation of the terms of the deferred

disposition agreement. Consequently, the trial court sentenced her to three years’ incarceration with

two years suspended. After serving one year, Boggs returned to supervised probation in March

2019.

In January 2021, Boggs’s probation officer filed a major violation report and requested a

show cause hearing. The report detailed a series of violations beginning in October 2019 when

Boggs tested positive for cocaine and marijuana. Then, Boggs repeatedly tested positive for

numerous drugs, including amphetamine, cocaine, fentanyl, methadone, morphine, and marijuana.

She also received summonses for reckless driving, driving without a license, and operating a vehicle

without insurance. Boggs was instructed to begin substance abuse treatment, but after testing

positive for drugs and missing her appointments, she was discharged from the program. In an

addendum to the major violation report, the probation officer stated that Boggs declined in-patient

treatment “due to her family.”

Following a March 24, 2021 hearing, the trial court released Boggs on bond pending the

revocation hearing scheduled for May 4, 2021. When Boggs reported to probation on April 1,

2021, she again tested positive for drugs, and she admitted that she “slipped up again the day [she]

-2- got released.” Boggs was admitted to outpatient treatment on April 19, 2021, and her probation

officer confirmed that she was complying with the treatment program.

At the revocation hearing, Boggs’s counsel asked for a two-month continuance to allow

Boggs to “continue with treatment and continue to be compliant knowing that she might have to

stipulate to the violation today if the [prosecution] so desires.” Counsel further asked the trial court,

that if it would not grant the two-month continuance, to grant Boggs “a week or two” continuance to

allow counsel to “get the appropriate information” and review the sentencing guidelines with

Boggs. The Commonwealth objected to any continuance. The trial court stated: “I don’t think this

case should be pushed out any further. I’ll give you a week or two to go over the guidelines with

her.” Boggs then stipulated that she had violated the terms of her probation, and the trial court

found her in violation. The court set the sentencing hearing for May 18, 2021.

At the sentencing hearing, the trial court found that Boggs’s conviction for operating an

uninsured vehicle without paying the uninsured motorist fee was not a criminal conviction and the

prepared sentencing guidelines therefore did not apply. In mitigation, Boggs highlighted her

addiction which began with opioids prescribed for pain, the overdose which led to her underlying

possession conviction, and her attempts to recover from her dependence on drugs. Boggs

emphasized that she “truly mean[t] it this time” and that she wanted to seek help for her addiction to

drugs.

In response, the trial court noted that “what’s really troubling about this is you were released

on bond, and almost as soon as you were released on bond you continued to test positive for these

substances.” Although the trial court “sincerely” “hope[d]” that Boggs would get the help she

needs, it was troubled by her persistent use of drugs despite the previous revocation. The trial court

revoked Boggs’s suspended sentence and re-suspended one year, leaving her with an active term of

incarceration of one year.

-3- ANALYSIS

A. Standard of Review

“On appeal, we review the evidence in the ‘light most favorable’ to the Commonwealth,

the prevailing party in the trial court.” Yerling v. Commonwealth, 71 Va. App. 527, 530 (2020)

(quoting Vasquez v. Commonwealth, 291 Va. 232, 236 (2016)). This standard requires us to

“discard the evidence of the accused in conflict with that of the Commonwealth, and regard as

true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn

[from that evidence].” Bagley v. Commonwealth, 73 Va. App. 1, 26 (2021) (alteration in

original) (quoting Cooper v. Commonwealth, 54 Va. App. 558, 562 (2009)).

“In revocation appeals, the trial court’s ‘findings of fact and judgment will not be reversed

unless there is a clear showing of abuse of discretion.’” Jacobs v. Commonwealth, 61 Va. App.

529, 535 (2013) (quoting Davis v. Commonwealth, 12 Va. App. 81, 86 (1991)). “The statutes

dealing with probation and suspension are remedial and intended to give the trial court valuable

tools to help rehabilitate an offender through the use of probation, suspension of all or part of a

sentence, and/or restitution payments.” Howell v. Commonwealth, 274 Va. 737, 740 (2007).

However, the trial court abuses its discretion as a matter of law “when a relevant factor that should

have been given significant weight is not considered; when an irrelevant or improper factor is

considered and given significant weight; and when all proper factors, and no improper ones, are

considered, but the court, in weighing those factors, commits a clear error of judgment.” Landrum

v. Chippenham and Johnston-Willis Hosps., Inc., 282 Va. 346, 352 (2011) (quoting Kern v. TXO

Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984)).

B. The Trial Court Did Not Abuse Its Discretion by Improperly Weighing Mitigating Factors.

Boggs argues that the trial court abused its discretion by sentencing her to “one year of

active incarceration when she was engaged in treatment, had maintained contact with her probation

-4- officer, and had no new criminal convictions before the trial court.” She further asserts that the

“goals of probation are to assist formerly incarcerated citizens in re-entering their communities

successfully, and safely.” Finally, appellant argues that the trial court “abused its discretion because

it did not properly weigh the mitigating factors before it regarding [Boggs’s] ongoing treatment, and

periods of sobriety.”

After suspending a sentence, a trial court “may revoke the suspension of sentence for any

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(A). “When 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). While “[t]he cause deemed by the court to be sufficient for revoking a suspension must be a

reasonable cause[,]” this determination is subject to an abuse-of-discretion standard. Id. (quoting

Hamilton v. Commonwealth, 217 Va. 325, 327 (1976)).

It is also “within the trial court’s purview to weigh any mitigating factors presented by

the defendant” in opposition to revocation of suspension of a sentence. Keselica v.

Commonwealth, 34 Va. App. 31, 36 (2000). In our abuse-of-discretion analysis, we presume a

trial court “considered the relevant factors without giving significant weight to any irrelevant

improper factor” when a party argues the relevant factors to the court. See Manchester Oaks

Homeowners Ass’n v. Batt, 284 Va. 409, 430 (2012). However, a trial court abuses its discretion

when it “arbitrarily or without justification discredit[s] evidence which is uncontradicted and not

inconsistent with other evidence in the case.” Bolden v. Commonwealth, 263 Va. 465, 472 n.3

(2002) (quoting Chesson v. Commonwealth, 216 Va. 827, 832 (1976)).

Boggs admitted that she violated the terms of her suspended sentence. Thus, the record

establishes that the trial court had a sufficient and reasonable cause to revoke Boggs’s suspended

-5- sentence. Under the operative terms of the revocation statute in effect when the trial court

considered Boggs’s violation, once it found that Boggs had violated the terms of the suspension,

the trial court was obligated to revoke the suspended sentence and it was in “full force and

effect.” Code § 19.2-306(C)(ii).1 The trial court was permitted—but not required—to resuspend

all or part of the sentence. Id.; Alsberry, 39 Va. App. at 320.

In sentencing Boggs, the trial court did not abuse its discretion in weighing the mitigating

factors Boggs presented. Although the trial court did not explicitly weigh the mitigating factors,

we presume the trial court considered the relevant factors Boggs argued. Against the mitigating

factors Boggs cited, the record reflects that Boggs repeatedly disregarded the terms of her

suspended sentence and continued to use illicit substances despite being afforded the opportunity for

substance abuse treatment. The trial court could reasonably conclude that Boggs’s conduct

demonstrated that she was not amenable to rehabilitation, even though she asserted she was now

sincere about recovery. “When coupled with a suspended sentence, probation represents ‘an act of

grace on the part of the Commonwealth to one who has been convicted and sentenced to a term of

confinement.’” Hunter v. Commonwealth, 56 Va. App. 582, 587 (2010) (quoting Price v.

Commonwealth, 51 Va. App. 443, 448 (2008)). The record shows Boggs failed to make productive

use of the grace extended to her. Therefore, the trial court did not abuse its discretion when it

considered Boggs’s mitigating evidence in light of her track record.

Accordingly, we hold that the trial court’s sentence represents a proper exercise of

discretion. See Alsberry, 39 Va. App. at 321-22 (finding that the court did not abuse its

discretion by imposing the defendant’s previously suspended sentence in its entirety “in light of

the grievous nature of [the defendant’s] offenses and his continuing criminal activity”).

1 Code § 19.2-306(C) was amended effective July 1, 2021, and no longer requires the trial court to revoke the suspended sentence. 2021 Va. Acts (Sp. Sess. I) ch. 538. -6- C. Boggs Does Not Show She Was Prejudiced by The Trial Court Denying Her Motion for Continuance.2

Appellant argues that the trial court abused its discretion by “denying [her] request for a

two-month continuance so she could continue with her outpatient substance abuse treatment.”

Whether to grant or deny a continuance rests within the “sound discretion” of the trial

court. Ortiz v. Commonwealth, 276 Va. 705, 722 (2008) (quoting Haugen v. Shenandoah Valley

Dep’t of Soc. Servs., 274 Va. 27, 34 (2007)). “An appellate court can reverse only if the trial

court committed an ‘abuse of discretion’ and thereby caused ‘resulting prejudice.’” Cooper, 54

Va. App. at 565 (quoting Ortiz, 276 Va. at 722). “This ‘two-pronged’ test has long been the

standard under Virginia practice.” Id. “Abuse of discretion and prejudice to the complaining

party are essential to reversal.” Butler v. Commonwealth, 264 Va. 614, 621 (2002) (quoting

Ferguson v. Colonial Pipeline Co., 206 Va. 719, 722 (1966)). Additionally, prejudice “may not

be presumed; it must appear from the record.” Cooper, 54 Va. App. at 565 (quoting Lowery v.

Commonwealth, 9 Va. App. 304, 307 (1990)).

Further, “[w]hen a defendant makes a last minute request for a continuance, [s]he must

demonstrate that exceptional circumstances exist.” Reyes v. Commonwealth, 68 Va. App. 379,

387 (2018) (quoting Shifflett v. Commonwealth, 218 Va. 25, 30 (1977)).

Boggs asserts that she “had good cause to request a two-month continuance based on

[her] substantial compliance with treatment and probation during the time period of March 24,

2021 to her hearing on May 4, 2021.” She also contends that she “was prejudiced by the denial

2 The Commonwealth contends that Boggs failed to preserve this issue for appellate review because the trial court granted her request for a two-week continuance and Boggs did not specifically object to the trial court’s denial of her request for a two-month continuance. See Rule 5A:18. We assume without deciding that by specifically requesting a two-month continuance, Boggs adequately presented the issue she raises on appeal to the trial court to allow our review. Therefore, we address this assignment of error on the merits. -7- of her continuance because she was removed from treatment” and further compliance with

treatment would have served as compelling mitigating evidence for the trial court to consider.

However, Boggs fails to show that she was prejudiced by the denial. Her theory that

continuing the most recently ordered treatment program would provide her with mitigating

evidence to present to the trial court is merely speculative and does not appear from the record.

“[W]here harm alleged by an appellant is ‘equivocal and speculative,’ we find no abuse of the

trial court’s discretion.” Salmon v. Commonwealth, 32 Va. App. 586, 595 (2000). “We cannot

reverse if the defendant ‘has shown no prejudice resulting from what [s]he claims was an abuse

of discretion’ in granting or denying a continuance motion.” Bolden v. Commonwealth, 49

Va. App. 285, 290 (2007) (quoting Quintana v. Commonwealth, 224 Va. 127, 135 (1982)).

Rather than supporting Boggs’s theory, the record shows Boggs repeatedly tested positive for

drugs while on probation and twice failed to complete treatment programs. Boggs’s argument

that this time would have been different is unsupported by the record and thereby speculative.

Because Boggs fails to show that she suffered actual prejudice, we need not determine

whether the trial court abused its discretion.

CONCLUSION

For these reasons, we affirm the trial court’s decision.

Affirmed.

-8-