COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Chief Judge Decker, Judge O’Brien and Senior Judge Haley
ANTONIO EMMANUEL RICE MEMORANDUM OPINION* v. Record No. 1379-21-2 PER CURIAM JUNE 21, 2022 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS Robert G. O’Hara, Jr., Judge Designate
(Todd M. Ritter; Hill & Rainey, on brief), for appellant.
(Jason S. Miyares, Attorney General; Virginia B. Theisen, Senior Assistant Attorney General, on brief), for appellee.
Appellant challenges the trial court’s revocation order entered March 1, 2021, revoking his
previously suspended sentence and imposing six years of active incarceration. Appellant argues
that the court abused its discretion by imposing a disproportionate punishment and asks that we
“undertake a reasonableness review of his sentence.” After examining the briefs and record in this
case, 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). Accordingly, we affirm the trial court’s
judgment.
BACKGROUND
“[I]n appeals from revocation proceedings, the trial court’s ‘findings of fact and judgment
will not be reversed unless there is a clear showing of abuse of discretion.’” Green v.
Commonwealth, 65 Va. App. 524, 532 (2015) (quoting Davis v. Commonwealth, 12 Va. App. 81,
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 86 (1991)). “The evidence is considered in the light most favorable to the Commonwealth, as
the prevailing party below.” Jacobs v. Commonwealth, 61 Va. App. 529, 535 (2013) (citing
Giles v. Commonwealth, 277 Va. 369, 375 (2009)).
On November 5, 2018, appellant pleaded guilty to grand larceny, in violation of Code
§ 18.2-95. The trial court sentenced appellant to ten years’ incarceration with nine years and six
months suspended, and an indefinite period of supervised probation, not to exceed the suspended
sentence period. The conditions of probation required that appellant comply with all rules and
requirements set by his probation officer and submit to random drug and alcohol screening.
In August 2019, appellant’s probation officer filed a major violation report alleging that
appellant had failed to report to probation within three working days after his release from
incarceration and had absconded from supervision. After a hearing, the trial court revoked
appellant’s previous nine-year, six-month sentence and resuspended it in full. Appellant’s
conditions of probation remained the same.
After returning to supervised probation, appellant absconded from supervision and was
convicted of armed robbery in Baltimore, Maryland. At that point, appellant’s criminal record
indicated nineteen prior felony convictions. At the subsequent revocation hearing, appellant
proffered that after his initial release from incarceration, he became homeless. Appellant arranged
to relocate to Maryland with probation but went to Baltimore before the transfer was finalized
because his housing expired. In Baltimore, appellant struggled with homelessness and addiction.
Appellant’s goal was to get into a long-term recovery program to manage his addiction. Appellant
planned to be employed with a construction company after his release and wanted to be close to his
children. Appellant also received a five-year sentence on a probation violation in Chesterfield and
requested that the time he received on this revocation run concurrent with the Chesterfield sentence.
-2- Appellant also requested that any resuspension of time be conditioned upon his successful
completion of any drug treatment required by probation.
The trial court found that within months of his release, appellant was in Maryland without
permission from the trial court or probation. The trial court found that appellant committed robbery,
a serious crime, within eight to nine months after his release from incarceration, when “he was
remanded to probation to get the help that he now requests.” The trial court found that appellant
had an extensive criminal history, including several prior probation violations, and had previously
suspended sentences designed to deter his misconduct. Accordingly, the court revoked appellant’s
previously suspended sentence and imposed six years of active incarceration. The trial court denied
appellant’s request that the sentence be run concurrently with his Chesterfield sentence. This appeal
follows.
ANALYSIS
Appellant argues that the trial court abused its discretion in sentencing him to six years of
active incarceration because it was disproportionate to his offense. Appellant acknowledges the trial
court’s discretion to revoke his previously suspended sentence but invites this Court to “set forth
meaningful standards for proportionality or reasonableness review [because] [c]urrent standards are
not tenable and in need of improvement.” He maintains that his active sentence “was unwarranted
and outside the bounds of the ‘conscientious judgment’ standard required in the exercise of judicial
discretion.” Moreover, he contends that the mitigating circumstances, including his “lack of
reasonable local housing,” should have resulted in less active incarceration.
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). Moreover, under the revocation
-3- statute in effect when the trial court considered appellant’s violation,1 once it found that
appellant 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) (2020 Cum.
Supp.). The trial court was permitted—but not required—to resuspend all or part of the
sentence. Id.; Alsberry v. Commonwealth, 39 Va. App. 314, 320 (2002). It was within the trial
court’s purview to weigh any mitigating factors appellant presented, including his homelessness.
See Keselica v. Commonwealth, 34 Va. App. 31, 36 (2000).
The record demonstrates, and the trial court found, that appellant absconded from
probation and went to Maryland shortly after his release from incarceration, where he was convicted
of armed robbery eight or nine months later. In addition, he had an extensive criminal history,
which included several prior probation violations, and had previously suspended sentences designed
to deter his misconduct. “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). Nevertheless, appellant’s criminal history, absconding
from supervision, and new violent criminal offense support a finding that he was not amenable to
rehabilitation. “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)). Appellant failed to make productive use of the
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COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Chief Judge Decker, Judge O’Brien and Senior Judge Haley
ANTONIO EMMANUEL RICE MEMORANDUM OPINION* v. Record No. 1379-21-2 PER CURIAM JUNE 21, 2022 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS Robert G. O’Hara, Jr., Judge Designate
(Todd M. Ritter; Hill & Rainey, on brief), for appellant.
(Jason S. Miyares, Attorney General; Virginia B. Theisen, Senior Assistant Attorney General, on brief), for appellee.
Appellant challenges the trial court’s revocation order entered March 1, 2021, revoking his
previously suspended sentence and imposing six years of active incarceration. Appellant argues
that the court abused its discretion by imposing a disproportionate punishment and asks that we
“undertake a reasonableness review of his sentence.” After examining the briefs and record in this
case, 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). Accordingly, we affirm the trial court’s
judgment.
BACKGROUND
“[I]n appeals from revocation proceedings, the trial court’s ‘findings of fact and judgment
will not be reversed unless there is a clear showing of abuse of discretion.’” Green v.
Commonwealth, 65 Va. App. 524, 532 (2015) (quoting Davis v. Commonwealth, 12 Va. App. 81,
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 86 (1991)). “The evidence is considered in the light most favorable to the Commonwealth, as
the prevailing party below.” Jacobs v. Commonwealth, 61 Va. App. 529, 535 (2013) (citing
Giles v. Commonwealth, 277 Va. 369, 375 (2009)).
On November 5, 2018, appellant pleaded guilty to grand larceny, in violation of Code
§ 18.2-95. The trial court sentenced appellant to ten years’ incarceration with nine years and six
months suspended, and an indefinite period of supervised probation, not to exceed the suspended
sentence period. The conditions of probation required that appellant comply with all rules and
requirements set by his probation officer and submit to random drug and alcohol screening.
In August 2019, appellant’s probation officer filed a major violation report alleging that
appellant had failed to report to probation within three working days after his release from
incarceration and had absconded from supervision. After a hearing, the trial court revoked
appellant’s previous nine-year, six-month sentence and resuspended it in full. Appellant’s
conditions of probation remained the same.
After returning to supervised probation, appellant absconded from supervision and was
convicted of armed robbery in Baltimore, Maryland. At that point, appellant’s criminal record
indicated nineteen prior felony convictions. At the subsequent revocation hearing, appellant
proffered that after his initial release from incarceration, he became homeless. Appellant arranged
to relocate to Maryland with probation but went to Baltimore before the transfer was finalized
because his housing expired. In Baltimore, appellant struggled with homelessness and addiction.
Appellant’s goal was to get into a long-term recovery program to manage his addiction. Appellant
planned to be employed with a construction company after his release and wanted to be close to his
children. Appellant also received a five-year sentence on a probation violation in Chesterfield and
requested that the time he received on this revocation run concurrent with the Chesterfield sentence.
-2- Appellant also requested that any resuspension of time be conditioned upon his successful
completion of any drug treatment required by probation.
The trial court found that within months of his release, appellant was in Maryland without
permission from the trial court or probation. The trial court found that appellant committed robbery,
a serious crime, within eight to nine months after his release from incarceration, when “he was
remanded to probation to get the help that he now requests.” The trial court found that appellant
had an extensive criminal history, including several prior probation violations, and had previously
suspended sentences designed to deter his misconduct. Accordingly, the court revoked appellant’s
previously suspended sentence and imposed six years of active incarceration. The trial court denied
appellant’s request that the sentence be run concurrently with his Chesterfield sentence. This appeal
follows.
ANALYSIS
Appellant argues that the trial court abused its discretion in sentencing him to six years of
active incarceration because it was disproportionate to his offense. Appellant acknowledges the trial
court’s discretion to revoke his previously suspended sentence but invites this Court to “set forth
meaningful standards for proportionality or reasonableness review [because] [c]urrent standards are
not tenable and in need of improvement.” He maintains that his active sentence “was unwarranted
and outside the bounds of the ‘conscientious judgment’ standard required in the exercise of judicial
discretion.” Moreover, he contends that the mitigating circumstances, including his “lack of
reasonable local housing,” should have resulted in less active incarceration.
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). Moreover, under the revocation
-3- statute in effect when the trial court considered appellant’s violation,1 once it found that
appellant 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) (2020 Cum.
Supp.). The trial court was permitted—but not required—to resuspend all or part of the
sentence. Id.; Alsberry v. Commonwealth, 39 Va. App. 314, 320 (2002). It was within the trial
court’s purview to weigh any mitigating factors appellant presented, including his homelessness.
See Keselica v. Commonwealth, 34 Va. App. 31, 36 (2000).
The record demonstrates, and the trial court found, that appellant absconded from
probation and went to Maryland shortly after his release from incarceration, where he was convicted
of armed robbery eight or nine months later. In addition, he had an extensive criminal history,
which included several prior probation violations, and had previously suspended sentences designed
to deter his misconduct. “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). Nevertheless, appellant’s criminal history, absconding
from supervision, and new violent criminal offense support a finding that he was not amenable to
rehabilitation. “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)). Appellant failed to make productive use of the
grace that had been extended to him and continued to engage in criminal conduct during the
suspension period.
1 Code § 19.2-306(C) was amended effective July 1, 2021, and no longer requires the trial court to revoke the sentence. 2021 Va. Acts Sp. Sess. I ch. 538. -4- “For probation to have a deterrent effect on recidivism, real consequences must follow a
probationer’s willful violation of the conditions of probation.” Price, 51 Va. App. at 449. Upon
review of the record in this case, we conclude that the sentence the trial court imposed represents
such real consequences and was a proper exercise of judicial discretion. See Alsberry, 39 Va. App.
at 321-22 (finding 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”).
Finally, this Court declines to engage in a proportionality review in cases that do not involve
life sentences without the possibility of parole. Cole v. Commonwealth, 58 Va. App. 642, 653-54
(2011). We noted in Cole that the Supreme Court of the United States “has never found a non-life
‘sentence for a term of years within the limits authorized by statute to be, by itself, a cruel and
unusual punishment’ in violation of the Eighth Amendment.” Id. (quoting Hutto v. Davis, 454 U.S.
370, 372 (1982) (per curiam)); cf. Vasquez v. Commonwealth, 291 Va. 232, 243 (2016) (rejecting
Eighth Amendment challenge to 133-year active sentence because the sentence was imposed for
“eighteen separate crimes”). Thus, we decline appellant’s invitation to “set forth meaningful
standards for proportionality or reasonableness review.”2
2 To the extent appellant’s arguments ask that we overrule established precedent, we note that “‘we are bound by decisions of the Supreme Court of Virginia and are without authority to overrule’ them.” Vay v. Commonwealth, 67 Va. App. 236, 258 n.6 (2017) (quoting Roane v. Roane, 12 Va. App. 989, 993 (1991)). Furthermore, under the doctrine of interpanel accord, “a decision of a panel of the Court of Appeals becomes a predicate for application of the doctrine of stare decisis until overruled by a decision of the Court of Appeals sitting en banc or by a decision of [the Supreme] Court.” Brown v. Commonwealth, 68 Va. App. 44, 51 n.1 (2017) (quoting Johnson v. Commonwealth, 252 Va. 425, 430 (1996)). “This principle applies not merely to the literal holding of the case, but also to its ratio decidendi—the essential rationale in the case that determines the judgment.” Hutton v. Commonwealth, 66 Va. App. 714, 724 n.5 (2016) (quoting Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 73-74 (2003)). -5- CONCLUSION
For the foregoing reasons, the circuit court’s judgment is affirmed.
Affirmed.
-6-