Melissa Lynne Blackard v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: April 22, 2025
• Docket: 2134233
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges AtLee, Athey and White

MELISSA LYNNE BLACKARD MEMORANDUM OPINION* BY v. Record No. 2134-23-3 JUDGE KIMBERLEY SLAYTON WHITE APRIL 22, 2025 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE James J. Reynolds, Judge

(Lauren E. Brice, Assistant Public Defender; Virginia Indigent Defense Commission, on briefs), for appellant.

(Jason S. Miyares, Attorney General; Angelique Rogers, Assistant Attorney General, on brief), for appellee.

Following a revocation hearing, the trial court found Melissa Lynne Blackard guilty of

violating the conditions of her supervised probation for a third time. The trial court found that

Blackard failed to follow her probation officer’s instructions and to report to the officer as

instructed, unlawfully used a controlled substance, and absconded from supervision. For these

violations, the trial court revoked Blackard’s previously suspended four-year sentence but

resuspended two years, leaving her with an active sentence of two years.

On appeal, Blackard challenges the Condition 11 violation as a basis for her probation

violation conviction. She contends that the trial court was “plainly wrong” in finding her testimony

to be incredible and finding sufficient evidence to prove that she absconded from supervised

probation. In addition, Blackard challenges her two-year sentence of incarceration for the probation

violation. She contends that the trial court erred in imposing this sentence “instead of considering

* This opinion is not designated for publication. See Code § 17.1-413(A). reasonable alternatives like a longer term of supervised probation, including ordering intensive

supervision to ensure her compliance, or court-ordered substance abuse treatment.” Finding no

error, we affirm.1

BACKGROUND

On August 26, 2020, following Blackard’s earlier guilty plea to the felony charge of

possessing a Schedule I or II controlled substance, the trial court sentenced her to five years of

incarceration with five years suspended on the condition that she be of good behavior for five

years. In imposing this sentence, the court ordered that Blackard be placed on supervised

probation for 12 months unless released sooner by the court or the probation officer. As a part of

probation, Blackard was required to submit to weekly drug testing and to attend a minimum of

90 AA/NA meetings during the first 6 months.

Thirteen months later, the trial court convicted Blackard of violating the conditions of her

probation. Among other things, she allegedly absconded from supervision. The trial court

revoked the previously suspended five-year sentence and resuspended all of it, except for the

time necessary for Blackard to enter and complete the Community Corrections Alternative

Program. But Blackard failed to complete the program. For this reason, in early February 2022,

the trial court again found Blackard guilty of violating the conditions of her probation. This

time, the trial court revoked all five years of her previously suspended sentence and resuspended

four years.

Following her release from confinement, Blackard returned to supervised probation in

July 2022 and again was required to submit to screening for drug use. On April 18, 2023, she

tested positive for cocaine. In response, Blackard’s probation officer, Haley Moran, filed with

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- the trial court a major violation report (“MVR”) dated May 9, 2023. In this report, based on the

positive drug screen, Moran alleged that Blackard had violated written Condition 8 of her

probation, which stated, “I will not unlawfully use, possess or distribute controlled substances or

related paraphernalia.” Accordingly, Moran requested a capias for Blackard’s arrest and another

revocation hearing.

Three months later, Moran filed an MVR addendum alleging that Blackard had violated

Conditions 6 and 11 of her probation by missing scheduled appointments and by absconding

from supervision. Supporting the alleged violations, Moran informed the trial court that, on

August 9, 2023, she went to 30 Oak Ridge Avenue, Blackard’s reported address, and only found

a renter, James Hudson, at the residence. She stated that Hudson answered the door and admitted

that he knew Blackard, but he had not seen her “in over two weeks” and he did not have a good

contact number for her because “she changes it too often.” Moran further stated that she gave

Hudson a door tag with the next appointment date for the following day, August 10, asking

Hudson to give it to Blackard “if she shows up.”

At the revocation hearing on December 1, 2023, the trial court took judicial notice of the

original sentencing order, the prior revocation orders, and Moran’s reports. In addition, Blackard

“concede[d]” all of the alleged violations except the Condition 11 violation, leaving only the

issue of whether Blackard had absconded from supervision. Afterwards, the Commonwealth

offered no other evidence, but Hudson and Blackard testified on her behalf. Hudson admitted

that he lived with Blackard when Moran visited the residence, but he had been napping and he

did not know whether Blackard was there at that time. But he admitted that he told Moran that

he had not seen Blackard in two weeks and that he “didn’t know where she was.”

Blackard testified that she was at home doing laundry and folding Hudson’s clothes at the

back of the house when Moran talked with Hudson at the front door; however, she did not

-3- become aware that he was talking with someone until she went into a bedroom and he told her

that “somebody came by and asked for [her].” She further testified that she found Moran’s door

tag “later on,” called the telephone number on the tag, and left a message. She stated that she

spoke with “Casey,” whom she believed to be her probation officer because she did not know

that she “had changed over to another probation officer.” In her message, Blackard stated that

she had been at home and “in the back cleaning and doing clothes and laundry.” She testified

that she had been living at the address for over a year.

During cross-examination, Blackard stated that she did not know why Hudson told

Moran that he had not seen her in two weeks. She testified that she received all of her mail at the

30 Oak Ridge Avenue address and that she was arrested there. When asked why she did not keep

her probation office appointment stated on the door tag, Blackard stated that she was scared that

she had been or would be charged with a probation violation again. And when the trial court

asked her about the two appointment letters that Moran mailed to the Oak Ridge Avenue address,

Blackard denied receiving them even though she reiterated that she received all of her mail at

that address. She said, “I’ve never absconded from that address at all. I’ve been there the whole

time.”

Regarding the alleged Condition 11 violation, Blackard asked the trial court to find her

not guilty of absconding from supervised probation. Relying on her testimony that she was at

the Oak Ridge Avenue address when Moran visited and that it was the place where she received

her mail and was arrested, she argued that Moran’s inability to locate her when she spoke with

Hudson was due to “some kind of miscommunication.” Regarding the other alleged violations,

Blackard asked the trial court to consider that she already had served 31 days. In addition, she

asked the trial court to continue the matter for sentencing because the Hope Center had accepted

her on the condition that she undergo a full screening. But the trial court replied, “Nope.”

-4- Afterwards, the trial court found Blackard guilty of violating Conditions 6, 8, and 11 of

her supervised probation. In explaining its ruling, the trial court told Blackard that she was

obligated to stay in touch with probation and that “[i]t[] [was] not their obligation to come

hunting [her] down.” In addition, the trial court stated that he disbelieved Blackard’s testimony.

During her subsequent allocution, Blackard admitted to the trial court that she knew that using

cocaine or possessing cocaine is a felony offense. After reciting Blackard’s previous probation

violations and the resulting sentences, the trial court noted that Blackard responded to these

dispositions by “using cocaine” and absconding from supervision. The trial court continued,

saying to Blackard, “So, your chances are up.” Thereafter, the trial court declined to send

Blackard to the Hope Center and revoked all four years of her previously suspended sentence,

resuspending two years on the condition that she be of good behavior for five years. This appeal

follows.2

ANALYSIS

Blackard appeals her probation violation conviction and her sentence for that conviction.

Alleging the trial court erred in finding that she violated Condition 11 of her supervised probation,

she argues the trial court lacked sufficient evidence to find that she absconded from probation. She

contends the trial court was “plainly wrong” in finding her testimony to be incredible. Alleging the

trial court erred in imposing a two-year sentence of incarceration for the probation violation, she

argues that the court failed to consider reasonable alternatives to incarceration, such as a longer term

2 On January 17, 2024, Blackard filed a motion to reconsider, which requested drug court in lieu of an active sentence. By order entered January 22, 2024, the trial court denied this motion without a hearing. This appeal does not include the trial court’s denial of the motion to reconsider. Blackard’s notice of appeal, which was filed December 11, 2023, states that she appeals “the Order of Sentencing announced on December 1, 2023.” Also, neither the assignments of error nor the related page references in her opening brief refer to the trial court’s ruling on the motion to reconsider. -5- of probation with “intensive supervision” and court-ordered substance abuse treatment. As we

explain below, neither assignment of error has merit.

I. The trial court was entitled to find that Blackard had absconded from supervision.

On appeal from a revocation proceeding, “[t]he 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). “[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 Davis v. Commonwealth, 12

Va. App. 81, 86 (1991)). An abuse of discretion occurs “[o]nly when reasonable jurists could not

differ.” Thomas v. Commonwealth, 44 Va. App. 741, 753, adopted upon reh’g en banc, 45

Va. App. 811 (2005). “And by definition, a trial court ‘abuses its discretion when it makes an error

of law.’” Khine v. Commonwealth, 75 Va. App. 435, 444 (2022) (quoting Porter v.

Commonwealth, 276 Va. 203, 260 (2008)). But our Supreme Court has recognized that there are

only

“three principal ways” by which a court abuses its discretion: “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.”

Lawlor v. Commonwealth, 285 Va. 187, 213 (2013) (quoting Landrum v. Chippenham &

Johnston-Willis Hosps., Inc., 282 Va. 346, 352 (2011)).

“In evaluating whether a trial court abused its discretion, . . . ‘we do not substitute our

judgment for that of the trial court. Rather, we consider only whether the record fairly supports the

trial court’s action.’” Grattan v. Commonwealth, 278 Va. 602, 620 (2009) (quoting Beck v.

Commonwealth, 253 Va. 373, 385 (1997)). “[T]he abuse of discretion standard requires a reviewing

court to show enough deference to a primary decisionmaker’s judgment that the [reviewing] court

does not reverse merely because it would have come to a different result in the first instance.” -6- Commonwealth v. Thomas, 73 Va. App. 121, 127 (2021) (alterations in original) (quoting Lawlor,

285 Va. at 212).

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) (emphasis added). Thus, the

statutory power of the trial court to revoke a suspended sentence is broad, but “it is not without

limitation.” Duff v. Commonwealth, 16 Va. App. 293, 297 (1993). “The cause deemed by the court

to be sufficient for revoking a suspension must be a reasonable cause.” Id. (quoting Hamilton v.

Commonwealth, 217 Va. 325, 327 (1976) (per curiam)).

In this case, the trial court identified absconding from supervision as one of several reasons

for revoking Blackard’s previously suspended sentence for a third time. This implicit finding of

reasonable cause was not an abuse of discretion as a matter of law. Absconding from probation

is a well-recognized “reasonable cause” for revoking a suspended sentence. See, e.g., Allison v.

Commonwealth, 40 Va. App. 407, 412 (2003). After all, when “[appellant], due to his own

conduct, is no longer under [the broad control of the court and the direct supervision of the

court’s probation officer], the act of grace in granting probation in the first place is rendered a

nullity.” Id. at 411-12 (alterations in original) (quoting Rease v. Commonwealth, 227 Va. 289,

295 (1984)).

The trial court’s implicit finding of reasonable cause also was not an abuse of discretion

as a matter of fact. The record fairly supports the trial court’s finding of a Condition 11

violation. Moran’s addendum to her MVR, of which the trial court took judicial notice without

objection, provided sufficient facts upon which a rational fact finder could conclude that, as of

August 2023, Blackard had absconded from supervised probation. It established that Blackard

failed to report to Moran’s office on July 11 and August 10 after Moran had mailed two office

-7- appointment letters to her last known address, 30 Oak Ridge Avenue, on June 20 and August 1.

It also established that, as of August 10, Blackard’s whereabouts were unknown to Moran and

even Hudson, a renter of the premises who told Moran that he knew Blackard and that he had not

seen her “in over two weeks” and did not have a contact number for her because “she changes it

too often.”

Finally, when Blackard testified that she found the door tag from probation, but she did

not report to the office because she was “scared” and believed that she was “already on the

wanted list,” a rational jurist was entitled to infer that Blackard willfully avoided contacting

probation out of fear of being “violated.” Also, when Blackard testified that she was at home on

August 9 and knew that Hudson was talking with someone at the door but did not know that he

was speaking with Moran because she was doing laundry at the back of the house, a rational

jurist was permitted to infer that Blackard was lying to conceal her guilt. Marable v.

Commonwealth, 27 Va. App. 505, 509-10 (1998). Thus, the trial court, sitting as the trier of fact,

could treat Blackard’s untruthful, self-serving testimony as “affirmative evidence of guilt.” See

Coleman v. Commonwealth, 52 Va. App. 19, 25 (2008) (quoting Wright v. West, 505 U.S. 277,

296 (1992)). Given this evidence, the trial court was not required to accept as a reasonable

hypothesis of innocence Blackard’s argument that Moran’s inability to locate her at the Oak

Ridge Avenue residence on August 9 was due to “some kind of miscommunication.”

In her opening brief, Blackard addresses the issue of the trial court’s role as the judge of

witness credibility, but she only does so in supporting her claim that “[t]he trial court was plainly

wrong when it deemed [that] [her] testimony was incredible.” She first complains that the trial

court did not explain why it did not believe her testimony. Then, relying on Kelley v.

Commonwealth, 69 Va. App. 617, 627 (2019), she argues that her testimony was not “incredible”

because it was “not ‘so contrary to human experience as to render it unworthy of belief’” and

-8- was corroborated by Hudson’s’ testimony about living with her at the Oak Ridge Avenue address

“at the time.” But this argument in unavailing.

Assuming, without deciding, that Blackard preserved for appeal her argument that the

trial court should have believed her testimony because it was not inherently incredible as a

matter of law, she presents an issue that is not subject to appellate review. “The credibility of the

witnesses and the weight accorded the evidence are matters solely for the fact finder who has the

opportunity to see and hear that evidence as it is presented.” Lambert v. Commonwealth, 70

Va. App. 740, 759 (2019) (quoting Elliott v. Commonwealth, 277 Va. 457, 462 (2009)). For this

reason, an appellate court must accept “the trial court’s determination of the credibility of

witness testimony unless, ‘as a matter of law, the testimony is inherently incredible.’” Nobrega

v. Commonwealth, 271 Va. 508, 518 (2006) (quoting Walker v. Commonwealth, 258 Va. 54, 71

(1999)). As fact finder, the trial court is “not required to accept the self-serving testimony of the

defendant . . . but may rely on such testimony in whole, in part, or reject it completely.” Carosi

v. Commonwealth, 280 Va. 545, 554-55 (2010). “[E]ven if defendant’s story [is] not inherently

incredible, the trier of fact need not . . . believe[] the explanation.” Montgomery v.

Commonwealth, 221 Va. 188, 190 (1980).

Here, at bottom, Blackard asks this Court to step into the shoes of the trial court and

reassess the credibility of her testimony. She ignores well-established appellate law and presents

the question of whether the trial court, as fact finder, erred in not finding her testimony to be

inherently credible as a matter of law. This we cannot do. Accordingly, as to the first

assignment of error, we affirm the trial court’s judgment.

II. The trial court did not abuse its discretion in imposing a two-year sentence of incarceration.

“We review the trial court’s sentence for abuse of discretion.” Laney v. Commonwealth,

76 Va. App. 155, 165-66 (2022) (quoting Scott v. Commonwealth, 58 Va. App. 35, 46 (2011)). -9- “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) (quoting Russnak v. Commonwealth, 10

Va. App. 317, 321 (1990)). “A trial court has broad discretion to revoke a suspended sentence

and probation based on Code § 19.2-306, which allows a court to do so ‘for any cause deemed by

it sufficient.’” Id. (quoting Davis, 12 Va. App. at 86). “The court’s findings of fact and

judgment will not be reversed unless there is a clear showing of abuse of discretion.” Allison, 40

Va. App. at 411 (quoting Davis, 12 Va. App. at 86). “The discretion required is a judicial

discretion, the exercise of which ‘implies conscientious judgment, not arbitrary action.’”

Alsberry, 39 Va. App. at 320 (quoting Hamilton, 217 Va. at 327). “[W]hen a statute prescribes a

maximum imprisonment penalty and the sentence does not exceed that maximum, the sentence

will not be overturned as being an abuse of discretion.” Minh Duy Du v. Commonwealth, 292

Va. 555, 564 (2016) (quoting Alston v. Commonwealth, 274 Va. 759, 771-72 (2007)). In

addition, “[b]arring clear evidence to the contrary, this Court will not presume that a trial court

purposefully ignored mitigating factors in blind pursuit of a harsh sentence.” Bassett v.

Commonwealth, 13 Va. App. 580, 584 (1992).

In this case, Blackard contends that the trial court abused its discretion when it “ignored”

“reasonable alternatives” to incarceration and imposed a two-year active prison sentence. She

contends that a longer term of probation, “intensive supervision,” and court-ordered substance abuse

treatment were such reasonable alternatives. But nothing in the record supports the finding that the

trial court failed to consider these sentencing alternatives. To the contrary, the trial court’s closing

remarks at the revocation hearing suggest that it chose to impose a two-year active prison sentence

because the “reasonable alternatives” imposed for the two previous violations of probation,

especially the court-ordered substance abuse treatment program, had failed. After the trial court

- 10 - refused Blackard’s request for a continuance so that she could undergo a full screening for

acceptance into the Hope Center, it recited the history of her probation violations and its

sentences. It also noted that Blackard responded to these previous dispositions by “using

cocaine” and absconding from supervision. Given this history and the new violations of

Conditions 6, 8, and 11 of probation, we cannot say that reasonable jurists could not differ as to

what sentence would be appropriate.

As we repeatedly have observed, “[w]hen 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 here supports the trial

court’s action. Blackard failed to make productive use of the grace that she had received, and, in

response, the trial court properly exercised its discretion by telling her that her “chances [were] up”

and imposing a portion of the sentence that it had suspended twice before for a felony drug offense.

Accordingly, as to the second assignment of error, we affirm the trial court’s judgment.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed.

Affirmed.

- 11 -