COURT OF APPEALS OF VIRGINIA
Present: Judges Malveaux, Ortiz and Friedman UNPUBLISHED
BRIAN KENNETH ROBINSON, II MEMORANDUM OPINION* v. Record No. 1018-22-1 PER CURIAM OCTOBER 24, 2023 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH James C. Lewis, Judge
(Scott F. Hallauer; Hallauer Law Firm, on brief), for appellant. Appellant submitting on brief.
(Jason S. Miyares, Attorney General; Leah A. Darron, Senior Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.
Brian Kenneth Robinson, II, appeals the circuit court’s judgment revoking his previously
suspended sentence and imposing five years’ active incarceration. He contends that the circuit court
abused its sentencing discretion because the five-year active sentence was excessive and did not
account for his mitigating evidence. Both parties waived oral argument. Code § 17.1‑403(ii).
Finding no error, we affirm the circuit court’s judgment.
BACKGROUND
On October 23, 1996, the circuit court convicted Robinson of first-degree murder upon
his guilty plea. Consistent with a written plea agreement, on January 7, 1997, the circuit court
sentenced him to 40 years’ incarceration with 17 years suspended conditioned on successfully
completing supervised probation and paying court costs. On November 22, 2018, Robinson’s
probation officer reported that he was arrested for driving while intoxicated and had tested
* This opinion is not designated for publication. See Code § 17.1-413(A). positive for using marijuana and cocaine. In addenda, the probation officer reported that
Robinson had an additional pending charge for reckless driving and had tested positive for
marijuana six more times. On July 17, 2019, the circuit court found Robinson in violation of the
terms of his suspension, revoked and resuspended all but 30 days of his previously suspended
sentence, and returned him to supervised probation.
On November 4, 2021, Robinson was convicted of possessing a firearm after being
convicted of a non-violent felony and sentenced to five years’ incarceration with one year and
four months suspended. Robinson’s probation officer reported the conviction to the circuit court,
which issued a show cause capias on March 4, 2022. Robinson was arrested on the capias on
March 8, 2022.
At the revocation hearing, Robinson stipulated that he had violated the terms of his
probation and the circuit court found him in violation. During sentencing, the circuit court
considered the discretionary probation violation sentencing guidelines, which recommended
imposing between six months and one year and six months’ incarceration. Additionally,
Robinson proffered that he was only 17 years old when the circuit court convicted him of
first-degree murder and, since then, he had been working as a “Class A truck driver.” Robinson
argued that he had “taken responsibility for his actions” and asked the circuit court to impose an
active sentence within the sentencing guidelines’ recommended range.
The circuit court found that Robinson’s firearm conviction demonstrated that he
remained a “danger to the community.” Accordingly, the circuit court revoked and resuspended
all but five years of Robinson’s previously suspended sentence. Robinson appeals.
ANALYSIS
“On appeal, ‘[w]e “view the evidence received at [a] revocation hearing in the light most
favorable to the Commonwealth, as the prevailing party, including all reasonable and legitimate
-2- inferences that may properly be drawn from it.”’” Green v. Commonwealth, 75 Va. App. 69, 76
(2022) (alterations in original) (quoting Johnson v. Commonwealth, 296 Va. 266, 274 (2018)).
“‘[T]he trial court’s “findings of fact and judgment will not be reversed unless there is a clear
showing of abuse of discretion.”’” Id. (quoting Jacobs v. Commonwealth, 61 Va. App. 529, 535
(2013)).
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). “If the court, after hearing, finds
good cause to believe that the defendant has violated the terms of suspension, then the court may
revoke the suspension and impose a sentence in accordance with the provisions of § 19.2-306.1.”
Code § 19.2-306(C). Robinson does not challenge the circuit court’s revocation of his previously
suspended sentence. Rather, he contends that the circuit court abused its sentencing discretion
by imposing five years’ active incarceration. He emphasizes that the five-year sentence
exceeded the period of incarceration recommended under the discretionary probation violation
sentencing guidelines, as well as the active sentence he received for his firearm conviction.
Additionally, Robinson contends that the circuit court failed to consider that he “expressed
remorse,” “accepted responsibility” for the violation, and was gainfully employed, which he
asserts demonstrates that his sentence was an abuse of discretion. We disagree.
As relevant here, Code § 19.2-306.1(B) provides that “[i]f the court finds the basis of a
violation of the terms and conditions of a suspended sentence or probation is that the defendant
was convicted of a criminal offense that was committed after the date of the suspension, . . . then
the court may revoke the suspension and impose or resuspend any or all of that period previously
suspended.” The record demonstrates that Robinson incurred a new criminal conviction during
the suspension period. Thus, it was within the circuit court’s discretion to “impose or resuspend
-3- any or all” of the previously suspended sentence. Id. It was equally within the circuit court’s
purview to weigh any mitigating factors appellant presented, such as his employment and
expression of remorse. See Keselica v. Commonwealth, 34 Va. App. 31, 36 (2000). The circuit
court was not obligated, however, to explain the specific weight it afforded to each piece of
evidence, as Robinson implies. Indeed, “[a]bsent a statutory requirement to do so, ‘a trial court
is not required to give findings of fact and conclusions of law.’” Bowman v. Commonwealth,
290 Va. 492, 500 n.8 (2015) (quoting Fitzgerald v. Commonwealth, 223 Va. 615, 627 (1982)).
The record establishes that while on probation for first-degree murder, Robinson incurred
yet another criminal conviction for a violent offense by unlawfully possessing a firearm. “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).
Robinson’s conduct supports the circuit court’s 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)). Robinson disregarded the “grace” that had been extended to him by continuing to
commit offenses.
To the extent Robinson contends that his sentence was an abuse of discretion because it
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COURT OF APPEALS OF VIRGINIA
Present: Judges Malveaux, Ortiz and Friedman UNPUBLISHED
BRIAN KENNETH ROBINSON, II MEMORANDUM OPINION* v. Record No. 1018-22-1 PER CURIAM OCTOBER 24, 2023 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH James C. Lewis, Judge
(Scott F. Hallauer; Hallauer Law Firm, on brief), for appellant. Appellant submitting on brief.
(Jason S. Miyares, Attorney General; Leah A. Darron, Senior Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.
Brian Kenneth Robinson, II, appeals the circuit court’s judgment revoking his previously
suspended sentence and imposing five years’ active incarceration. He contends that the circuit court
abused its sentencing discretion because the five-year active sentence was excessive and did not
account for his mitigating evidence. Both parties waived oral argument. Code § 17.1‑403(ii).
Finding no error, we affirm the circuit court’s judgment.
BACKGROUND
On October 23, 1996, the circuit court convicted Robinson of first-degree murder upon
his guilty plea. Consistent with a written plea agreement, on January 7, 1997, the circuit court
sentenced him to 40 years’ incarceration with 17 years suspended conditioned on successfully
completing supervised probation and paying court costs. On November 22, 2018, Robinson’s
probation officer reported that he was arrested for driving while intoxicated and had tested
* This opinion is not designated for publication. See Code § 17.1-413(A). positive for using marijuana and cocaine. In addenda, the probation officer reported that
Robinson had an additional pending charge for reckless driving and had tested positive for
marijuana six more times. On July 17, 2019, the circuit court found Robinson in violation of the
terms of his suspension, revoked and resuspended all but 30 days of his previously suspended
sentence, and returned him to supervised probation.
On November 4, 2021, Robinson was convicted of possessing a firearm after being
convicted of a non-violent felony and sentenced to five years’ incarceration with one year and
four months suspended. Robinson’s probation officer reported the conviction to the circuit court,
which issued a show cause capias on March 4, 2022. Robinson was arrested on the capias on
March 8, 2022.
At the revocation hearing, Robinson stipulated that he had violated the terms of his
probation and the circuit court found him in violation. During sentencing, the circuit court
considered the discretionary probation violation sentencing guidelines, which recommended
imposing between six months and one year and six months’ incarceration. Additionally,
Robinson proffered that he was only 17 years old when the circuit court convicted him of
first-degree murder and, since then, he had been working as a “Class A truck driver.” Robinson
argued that he had “taken responsibility for his actions” and asked the circuit court to impose an
active sentence within the sentencing guidelines’ recommended range.
The circuit court found that Robinson’s firearm conviction demonstrated that he
remained a “danger to the community.” Accordingly, the circuit court revoked and resuspended
all but five years of Robinson’s previously suspended sentence. Robinson appeals.
ANALYSIS
“On appeal, ‘[w]e “view the evidence received at [a] revocation hearing in the light most
favorable to the Commonwealth, as the prevailing party, including all reasonable and legitimate
-2- inferences that may properly be drawn from it.”’” Green v. Commonwealth, 75 Va. App. 69, 76
(2022) (alterations in original) (quoting Johnson v. Commonwealth, 296 Va. 266, 274 (2018)).
“‘[T]he trial court’s “findings of fact and judgment will not be reversed unless there is a clear
showing of abuse of discretion.”’” Id. (quoting Jacobs v. Commonwealth, 61 Va. App. 529, 535
(2013)).
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). “If the court, after hearing, finds
good cause to believe that the defendant has violated the terms of suspension, then the court may
revoke the suspension and impose a sentence in accordance with the provisions of § 19.2-306.1.”
Code § 19.2-306(C). Robinson does not challenge the circuit court’s revocation of his previously
suspended sentence. Rather, he contends that the circuit court abused its sentencing discretion
by imposing five years’ active incarceration. He emphasizes that the five-year sentence
exceeded the period of incarceration recommended under the discretionary probation violation
sentencing guidelines, as well as the active sentence he received for his firearm conviction.
Additionally, Robinson contends that the circuit court failed to consider that he “expressed
remorse,” “accepted responsibility” for the violation, and was gainfully employed, which he
asserts demonstrates that his sentence was an abuse of discretion. We disagree.
As relevant here, Code § 19.2-306.1(B) provides that “[i]f the court finds the basis of a
violation of the terms and conditions of a suspended sentence or probation is that the defendant
was convicted of a criminal offense that was committed after the date of the suspension, . . . then
the court may revoke the suspension and impose or resuspend any or all of that period previously
suspended.” The record demonstrates that Robinson incurred a new criminal conviction during
the suspension period. Thus, it was within the circuit court’s discretion to “impose or resuspend
-3- any or all” of the previously suspended sentence. Id. It was equally within the circuit court’s
purview to weigh any mitigating factors appellant presented, such as his employment and
expression of remorse. See Keselica v. Commonwealth, 34 Va. App. 31, 36 (2000). The circuit
court was not obligated, however, to explain the specific weight it afforded to each piece of
evidence, as Robinson implies. Indeed, “[a]bsent a statutory requirement to do so, ‘a trial court
is not required to give findings of fact and conclusions of law.’” Bowman v. Commonwealth,
290 Va. 492, 500 n.8 (2015) (quoting Fitzgerald v. Commonwealth, 223 Va. 615, 627 (1982)).
The record establishes that while on probation for first-degree murder, Robinson incurred
yet another criminal conviction for a violent offense by unlawfully possessing a firearm. “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).
Robinson’s conduct supports the circuit court’s 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)). Robinson disregarded the “grace” that had been extended to him by continuing to
commit offenses.
To the extent Robinson contends that his sentence was an abuse of discretion because it
exceeded the probation sentencing guidelines’ recommended range, it is well-established that
those sentencing guidelines “are discretionary, rather than mandatory.” West v. Dir., Dep’t of
Corrs., 273 Va. 56, 65 (2007). “Accordingly, a circuit court’s failure to follow the guidelines is
‘not . . . reviewable on appeal.’” Fazili v. Commonwealth, 71 Va. App. 239, 248-49 (2019)
(alteration in original) (quoting Code § 19.2-298.01(F)). Similarly, to the extent Robinson’s
-4- argument challenges the proportionality of his sentence, 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, 654 (2011). We noted in Cole that the United
States Supreme Court “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. at 653 (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”).
Accordingly, we decline to conduct a proportionality review in this case. Cole, 58 Va. App. at
653.
“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 circuit court imposed was a
proper exercise of judicial discretion. See Brittle v. Commonwealth, 54 Va. App. 505, 520 (2009)
(affirming the court’s imposition of a five-year sentence with three years suspended for third offense
larceny).
CONCLUSION
For the above reasons, we affirm the circuit court’s judgment.
Affirmed.
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