Gerard Bunn v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: June 6, 2023
• Docket: 1343221
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, White and Retired Judge Frank* UNPUBLISHED

GERARD BUNN MEMORANDUM OPINION** v. Record No. 1343-22-1 PER CURIAM JUNE 6, 2023 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Stephen J. Telfeyan, Judge

(Brett P. Blobaum, Senior Appellate Attorney; Virginia Indigent Defense Commission, on briefs), for appellant.

(Jason S. Miyares, Attorney General; Susan Hallie Hovey-Murray, Assistant Attorney General, on brief), for appellee.

Gerard Bunn appeals the circuit court’s judgment revoking his previously suspended

sentence and imposing one year of active incarceration for the fifth revocation of a previously

suspended sentence. Bunn argues that the circuit court abused its discretion by failing to

conscientiously weigh the mitigating circumstances he presented against his violation conduct

and record. 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).

* Retired Judge Frank took part in the consideration of this case by designation pursuant to Code § 17.1-400(D). ** This opinion is not designated for publication. See Code § 17.1-413. BACKGROUND

In December 2001, the circuit court convicted Bunn for operating a motor vehicle after

being declared a habitual offender, second or subsequent offense. The circuit court sentenced Bunn

to five years’ incarceration with two years and seven months suspended, conditioned on his good

behavior and indeterminate supervised probation. Bunn’s previously suspended sentence was

revoked and resuspended in 2007, 2011, and 2015, and revoked and resuspended, in part, in 2019.

Bunn finished his term of active incarceration and returned to supervised probation in March 2020.

At this point, Bunn had a two-year suspended sentence remaining on the habitual offender

conviction (date of offense being August 4, 2001).

In October 2021, Bunn’s probation officer reported that Bunn had repeatedly failed to report

as instructed, failed to provide COVID-19 or medical documentation for his missed appointments,

and recently tested positive for fentanyl. The circuit court issued a capias on October 20, 2021,

which was served on Bunn on July 28, 2022.

On August 4, 2022, Bunn was released on a secured bond. The bond order instructed that

Bunn’s probation officer would issue a PB-151 if Bunn failed to report to the probation officer,

tested positive for drugs, or failed to report for his drug screens. By addenda, Bunn’s probation

officer reported that Bunn tested positive for fentanyl and methadone on August 10, 2022. Bunn

reported to his weekly drug screen on August 24, 2022, however, he left the premises before his

probation officer could serve the PB-15.

At the revocation hearing, Crystal Bonneville, Bunn’s probation officer, testified that Bunn

began supervised probation on March 20, 2020, and he “appeared to be adjusting well.” Bunn had

maintained monthly telephone contact because of COVID-19 restrictions. Bonneville assumed

Bunn’s supervision on September 9, 2020, and instructed Bunn to report to the probation office on

1 A PB-15 is a document permitting a probation officer to take an individual into custody. -2- October 26, 2020. On that date, however, Bunn failed to report, claiming that he had had a possible

COVID-19 exposure. Bonneville instructed Bunn to “get tested, submit documentation.” Bunn

failed to submit any medical documentation.

Bunn maintained monthly telephone contact with Bonneville, contending that he could not

report to the probation office because he was ill, “possibly exposed to COVID, and was receiving

medical attention.” On May 19, 2021, Bunn submitted documentation that “indicated he needed to

isolate for 10 days.” Bunn did not report to the probation office, however, until July 21, 2021.

During that visit, he tested positive for fentanyl. Although Bunn attributed the positive test to a

tetanus shot he received when he suffered a leg injury, he failed to submit documentation of the

vaccine or the purported injury. Bunn then failed to report for two subsequent appointments.

Bonneville continuously instructed Bunn to submit medical documentation but Bunn failed to do so.

Bunn tested positive for drugs twice after his release on bond.

Bunn testified that he was employed as an electrician—a skill he had learned while he was

incarcerated. In 2009, Bunn had suffered a broken back and was prescribed Oxycontin, Percocet,

and hydrocodone, following which he became addicted to opiates. Bunn acknowledged his

addiction and that he needed treatment. He claimed that he had unsuccessfully tried to obtain

treatment through probation in 2019. Bunn explained that he did not provide medical

documentation to Bonneville because he was hospitalized. In addition, Bunn failed to bring his

medical records to court because he did not “think [he] needed them.” Bunn agreed that he went to

his probation appointment on August 24, 2022, but testified that he received a telephone call

indicating “something” was wrong with his 84-year-old mother, so he “took right off.” Bunn

testified that his fiancée supported him. The circuit court found Bunn had violated the terms and

conditions of his previously suspended sentence.

-3- The Commonwealth asked the circuit court to impose a sentence within the guidelines and

release Bunn from probation. The Commonwealth was concerned with Bunn’s behavior while on

probation because, in the Commonwealth’s view, Bunn had “made it clear” that he was not willing

to cooperate with probation when he failed to attend scheduled appointments or provide the

necessary documentation “that could have excused some of his absences.”

Bunn asked the circuit court to give him another opportunity to succeed on probation and

receive treatment for his addiction. Bunn stressed that the pain medication the doctors prescribed

for his back injury caused his addiction. Bunn wanted to go home, return to work, and receive the

treatment he needed.

In allocution, Bunn stated that he originally was convicted on a driving charge and was sent

“to prison all these years for nothing.” He had never received substance abuse treatment and was

willing to do “anything” the court wanted him to do. The circuit court acknowledged Bunn’s

addiction and his plea for treatment. The circuit court found that Bunn had clearly avoided his

probation officer’s efforts to assist him and had a “history of violations for many of the same

offenses.” The circuit court revoked Bunn’s previously suspended two-year sentence and

resuspended one year. Bunn appeals, arguing that the circuit court abused its discretion when it

imposed a one-year active sentence because it failed to give proper weight to his mitigating

evidence.2

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 Bunn further argues that the circuit court failed to consider that his original offense was based on a habitual offender statute which has since been repealed by the General Assembly. Bunn did not raise this contention to the circuit court, however, so we do not consider it on appeal. See Rule 5A:18. -4- 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 circuit 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, once it found that Bunn

had violated the terms of the suspension, the circuit court was authorized to “revoke the

suspension and impose a sentence in accordance with the provisions of § 19.2-306.1.” Code

§ 19.2-306(C). Under the express provisions of Code § 19.2-306.1(C), “[t]he court may impose

whatever sentence might have been originally imposed for a third or subsequent technical

violation.”

In his opening brief, Bunn does not contest that he violated the conditions of his

suspended sentence by testing positive for drugs and failing to report to his probation officer.

Instead, he argues that the circuit court abused its discretion by failing “to weigh[] the mitigating

circumstances” he presented “against his violation conduct and record.” Citing several

unpublished cases, Bunn stresses that he did not return before the circuit court with new

convictions. Instead, he contends that his “conduct was limited” to testing positive for drugs and

failing to report to his probation officer.

In fashioning Bunn’s sentence, it was within the circuit court’s purview to weigh any

mitigating factors he presented, including his employment status, his willingness to obtain substance

abuse treatment, and his family support. See Keselica v. Commonwealth, 34 Va. App. 31, 36

(2000). The record demonstrates that the circuit court considered the mitigating evidence Bunn

-5- presented. Balanced against those circumstances, however, was Bunn’s continuous disregard for

the circuit court’s orders and the rules of probation, resulting in five total revocations. Moreover,

although the circuit court revoked his previously suspended sentence, it resuspended one year. That

ruling reflects the circuit court’s careful balancing of the evidence and circumstances in this case,

including its finding that Bunn avoided the efforts by probation officers to assist him.

“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). Bunn’s continued disregard of the terms of his suspended sentence supports the circuit

court’s finding that some active incarceration was appropriate. “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)). Bunn failed to

make productive use of the grace that was repeatedly extended to him.

“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

represents such real consequences and was a proper exercise of judicial 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

Finding no abuse of the circuit court’s sentencing discretion, its judgment is affirmed.

Affirmed.

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