Dondre D. Thorpe v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: July 5, 2022
• Docket: 1206212
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Decker, Judges Beales and Russell UNPUBLISHED

DONDRE D. THORPE

v. Record No. 1206-21-2

COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION** PER CURIAM DONDRE D. THORPE JULY 5, 2022

v. Record No. 0804-21-2

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG Joseph M. Teefey, Jr., Judge

(Aaron M. Vandenbrook; Office of the Public Defender, on brief), for appellant.

(Jason S. Miyares, Attorney General; Tanner M. Russo, Assistant Attorney General, on brief), for appellee.

Dondre D. Thorpe appeals from the decision of the Circuit Court of the City of Petersburg

revoking his previously suspended twelve-month sentence. The appellant also appeals the trial

court’s denial of his motion to modify its sentencing decision. We granted the appellant’s motion to

consolidate his two appeals and address them both in this opinion. The appellant’s opening briefs

and the assignments of error in both appeals are identical. They assert that “[t]he trial court abused

its discretion in revoking ninety (90) days of [his] previously suspended sentence in that it failed to

Justice Russell participated in the decision of this case prior to his investiture as a Justice of the Supreme Court of Virginia. ** Pursuant to Code § 17.1-413, this opinion is not designated for publication. give sufficient weight to mitigating evidence presented at the sentencing hearing.” For the reasons

stated below, we affirm the trial court’s judgment.1

BACKGROUND

“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

evidence is considered in the light most favorable to the Commonwealth, as the prevailing party

below.” Id.

On March 3, 2020, the appellant was convicted for the unauthorized distribution of drug

paraphernalia and carrying a concealed weapon. He was sentenced to twelve months in jail for

each offense. His sentence for the drug paraphernalia offense was suspended for three years on

the special condition that he be of good behavior. On January 15, 2021, the appellant’s

probation officer filed a probation violation report asserting that he had been unable to reach the

appellant by phone or mail from early September 2020 through January 13, 2021. Additionally,

the appellant had failed to report for jail on the concealed weapon conviction and was in

“fugitive status” in the City of Petersburg. The report also stated that, while on probation, the

appellant had been charged with reckless driving and a seatbelt violation in Dinwiddie County on

July 25, 2020, and he had failed to appear in court on September 28, 2020. The appellant had

also failed to appear in court in Colonial Heights on a drug possession charge that had been

pending since 2018. The appellant was in fugitive status in both Dinwiddie County and Colonial

Heights. As a result of the probation officer’s violation report, the trial court issued a capias on

1 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). -2- January 15, 2021. The appellant was arrested, served the capias, and brought before a magistrate

on April 12, 2021. His arraignment before the trial court occurred on April 20, 2021.

The appellant’s revocation hearing took place on August 3, 2021. At the hearing he

maintained that his probation officer could not reach him because he was homeless after his

mother’s death and he had no cell phone or ability “to get around.” Nevertheless, he admitted

that he had been charged with reckless driving and a seatbelt violation in July 2020 and that,

following a hearing and driving school, the charge had been “resolved.” He also admitted that he

had “resolved” the failure to appear charge in Dinwiddie County by serving ten days in jail. The

appellant acknowledged that the drug possession charge in Colonial Heights had been reduced to

marijuana possession and that he had been convicted of that charge. He stated that he had served

his sentence on the concealed weapon conviction and, upon his release in April 2021, was living

with his grandmother on Baltimore Road.

The trial court found the appellant in violation of his probation, revoked his previously

suspended twelve-month sentence, and re-suspended all but three months. The appellant

appealed the trial court’s decision and also filed a motion to modify the sentence, seeking GPS

monitoring and/or work release. At a hearing on his motion, the appellant stated that he had

mistakenly provided his girlfriend’s address as that of his grandmother but noted that he resided

with both his grandmother and his girlfriend. He also maintained that he was willing to pay for

any GPS monitoring and would cooperate with a work release disposition. The trial court found

his testimony was not credible and denied his motion. It stressed that the appellant had failed to

appear for jail, had failed to appear for court, had not completed his community service, and had

incurred new charges and convictions while on probation. The appellant noted an appeal from

the court’s decision and successfully moved to consolidate his appeals.

-3- ANALYSIS

The appellant does not dispute that the trial court had sufficient cause to find him in

violation of the condition of his suspended sentence. Instead, he maintains that the sentence

imposed by the trial court was excessive.2

The appellant argues that the trial court failed to place sufficient weight on his mitigating

evidence before fashioning a sentence. He emphasizes that he was before the court on his first

probation violation and that his probation officer could not reach him because he was homeless.

The appellant also stresses that he had accepted responsibility for his actions by serving his

sentence for the concealed weapon conviction and had made “positive changes” by securing

employment and taking care of his family. The appellant asserts that the trial court erred by

failing to take these circumstances into account and imposing ninety days of incarceration. We

disagree.

After determining a sentence, a trial “court may suspend imposition of sentence or

suspend the sentence in whole or part and in addition may place the defendant on probation

under such conditions as the court shall determine.” Code § 19.2-303. If a trial court

subsequently finds good cause to believe that a defendant violated the terms of his suspended

2 The appellant’s assignment of error challenges the trial court’s decision to “revok[e] ninety (90) days of [his] previously suspended sentence” and asserts that the court had failed to “give sufficient weight” to the mitigating evidence he presented at the sentencing hearing. To the extent that the appellant argues on brief that the trial court erred by denying his motion to modify his sentence by placing him on GPS monitoring and/or work release, we decline to address that argument because it is beyond the scope of his assignment of error. Rule 5A:20(c)(1) states that “[o]nly assignments of error listed in the brief will be noticed by this Court.” Nothing in the appellant’s assignment of error refers to the trial court’s denial of his motion to modify his sentence. Because “we are ‘limited to reviewing the assignments of error presented by the litigant,’” we “cannot ‘consider issues touched upon by [the appellant]’s argument but not encompassed by his assignment of error.’” Riddick v. Commonwealth, 72 Va. App. 132, 146 (2020) (quoting Banks v. Commonwealth, 67 Va. App. 273, 289, 290 (2017)). -4- sentence, then the court may revoke the suspension and subsequently impose a new sentence. Code

§ 19.2-306(C).3

“The statutes dealing with probation and suspension are remedial and intended to give the

trial court valuable tools to help rehabilitate an offender . . . .” Howell v. Commonwealth, 274

Va. 737, 740 (2007). “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.’” Price v. Commonwealth, 51 Va. App. 443, 448 (2008) (quoting Pierce v.

Commonwealth, 48 Va. App. 660, 667 (2006)).

A trial court’s ruling in a revocation proceeding “will not be reversed [on appeal absent]

a clear showing of abuse of discretion.” Jacobs, 61 Va. App. at 535 (quoting Davis, 12 Va. App.

at 86). “[T]he phrase ‘abuse of discretion’ means that the [trial] court ‘has a range of choice, and

that its decision will not be disturbed as long as it stays within that range and is not influenced by

any mistake of law.’” Ellis v. Commonwealth, 68 Va. App. 706, 711 (2018) (first alteration in

original) (quoting Sauder v. Ferguson, 289 Va. 449, 459 (2015)). “Only when reasonable jurists

could not differ can we say an abuse of discretion has occurred.” Minh Duy Du v.

Commonwealth, 292 Va. 555, 564 (2016) (quoting Grattan v. Commonwealth, 278 Va. 602, 620

(2009)). “This bell-shaped curve of reasonability governing . . . appellate review rests on the

venerable belief that the judge closest to the contest is the judge best able to discern where the

equities lie.” Id. (quoting Sauder, 289 Va. at 459).

3 The appellant was arrested April 12, 2021 for probation violations that were reported on January 15, 2021. The Commonwealth correctly notes in its brief that the appellant did not argue below or on appeal that the amendments to Code § 19.2-306(C) or Code § 19.2-306.1, both of which went into effect on July 1, 2021, applied to his case. See generally Green v. Commonwealth, ___ Va. App. ___, ___ (2022) (holding that Code § 19.2-306.1 did not apply in that case because both the crime occurred and the prosecution began before the statute’s effective date). Consequently, we do not consider those amendments. -5- The record establishes that the trial court had sufficient cause to revoke the appellant’s

suspended sentence. Despite the appellant’s original suspended sentence on the paraphernalia

conviction, he failed to report to jail on the concealed weapon conviction, incurred new

convictions, and had failed to appear for court. He also failed to provide his probation officer

with his current address. The trial court found that, rather than demonstrating that he was worthy

of the court’s lenity, he had “decided [he] would do what [he] wanted to do, not just here but [in]

other jurisdictions.” The court denied the appellant’s request for reporting to jail at the end of

each day and for work release, finding that he was not a suitable candidate for alternatives to

incarceration.

Here, the trial court had the discretion to impose or re-suspend any or all of the

previously-suspended sentence. Code § 19.2-306(C). Furthermore, it was within the court’s

purview to weigh any mitigating factors the appellant presented. See Keselica v.

Commonwealth, 34 Va. App. 31, 36 (2000). The appellant’s disregard of the terms of his

suspended sentence supports the court’s finding that he was not amenable to rehabilitation. In

addition, his lapse into further criminal behavior demonstrated that he failed to take advantage of the

grace extended to him. See Price, 51 Va. App. at 448. Our review of the record supports the

conclusion that the trial court did not abuse its discretion. See Alsberry v. Commonwealth, 39

Va. App. 314, 321-22 (2002) (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”).

CONCLUSION

Having reviewed the record, we hold that the sentence imposed by the trial court was not

an abuse of discretion. Accordingly, we affirm the court’s judgment.

Affirmed.

-6-