Michael Shane Boyd v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: August 30, 2022
• Docket: 1231213
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Senior Judges Clements, Haley and Petty

MICHAEL SHANE BOYD MEMORANDUM OPINION* v. Record No. 1231-21-3 PER CURIAM AUGUST 30, 2022 COMMONWEALTH OF VIRGINIA

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

(M. Lee Smallwood, II, Deputy Public Defender, on brief), for appellant. Appellant submitting on brief.

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

Counsel for Michael Shane Boyd filed a brief on his behalf accompanied by a motion for

leave to withdraw in accordance with Anders v. California, 386 U.S. 738 (1967). A copy of that

brief has been furnished to Boyd with sufficient time for him to raise any matter that he chooses.

Boyd has not filed any supplemental pleadings. After examining the briefs and record in this case,

we affirm the trial court’s judgment. We unanimously hold that oral argument is unnecessary

because “the appeal is wholly without merit.” Code § 17.1-403(ii)(a); Rule 5A:27(a).

BACKGROUND

On March 1, 2016, the Circuit Court of the City of Danville sentenced Boyd to a term of

five years’ imprisonment with two years and six months suspended upon a conviction for larceny,

third or subsequent offense. In May 2021, a probation officer filed a major violation report alleging

that Boyd had been arrested in March 2021 for larceny from the person of less than $5 and

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. obtaining money by false pretenses, that he had been arrested in April 2021 for distributing less than

one ounce of marijuana to a minor at least three years his junior and contributing to the delinquency

of a minor, and that his results after a drug test were positive for marijuana and methamphetamine.

The circuit court issued a capias on May 25, 2021, thereby initiating a proceeding to revoke Boyd’s

suspended sentence. In October 2021, the probation officer filed a supplemental report reflecting

that Boyd had been convicted of distributing an imitation controlled substance to a minor at least

three years his junior and contributing to the delinquency of a minor following his April 2021

arrest.1

At the revocation hearing, which was also the sentencing hearing for the new drug and

contributing to the delinquency of a minor convictions, Boyd pleaded guilty to the probation

violation alleged in the supplemental report. On November 15, 2021, after imposing sentence on

the new convictions, the circuit court revoked and reimposed the two-year, six-month suspended

sentence for the 2016 larceny conviction. Boyd appeals.

ANALYSIS

Boyd asserts that the circuit court abused its discretion by revoking his two-year, six-month

suspended sentence because he expressed remorse, requested to be sent to a treatment facility, and

accepted responsibility by pleading guilty. Instead, the court focused on the fact that Boyd was on

probation when he committed the offenses underlying the new convictions. Boyd also contends

that this sentence is “disproportionate” and that the court “arbitrarily and capriciously”

disregarded his remorse and acceptance of responsibility. We disagree.

1 The conviction of distributing an imitation controlled substance to a minor at least three years his junior is the subject of a companion appeal, Boyd v. Commonwealth, No. 1230-21-3 (this day decided), in which Boyd challenges only the sentence imposed, not the underlying conviction. -2- “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)). “That

standard means that the circuit court judge’s ‘ruling will not be reversed simply because an

appellate court disagrees.’” Fields v. Commonwealth, 73 Va. App. 652, 672 (2021) (quoting

Thomas v. Commonwealth, 44 Va. App. 741, 753, adopted upon reh’g en banc, 45 Va. App. 811

(2005)). It also “necessarily implies that, for some decisions, conscientious jurists could reach

different conclusions based on exactly the same facts—yet still remain entirely reasonable.”

Thomas v. Commonwealth, 62 Va. App. 104, 111 (2013) (quoting Hamad v. Hamad, 61

Va. App. 593, 607 (2013)). We consider “[t]he evidence . . . in the light most favorable to the

Commonwealth, as the prevailing party below.” Jacobs, 61 Va. App. at 535.

The probation officer’s October 2021 supplemental report alleged that Boyd had been

convicted of new criminal offenses during the suspension period, and the circuit court sentenced

him on those convictions at the same hearing in which it revoked his earlier suspended sentence.

“A new conviction certainly constitutes good cause to revoke the suspension of a previously

imposed sentence.” Booker v. Commonwealth, 61 Va. App. 323, 338 (2012). Under the

operative terms of the revocation statute in effect when the revocation proceeding began, once

the circuit court found that he had violated the terms of the suspension, the circuit court was

obligated to revoke the suspended sentence and it was in “full force and effect.” Code

§ 19.2-306(C)(ii) (Cum. Supp. 2020).2 The court was permitted—but not required—to

2 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. Boyd does not argue that the statutory amendment applied in his case and this Court recently held that it did not apply when, as here, the revocation proceeding began before July 1, 2021. Green v. Commonwealth, 75 Va. App. 69, 84 & n.4 (2022). Moreover, even under the amended statutory framework the trial court has discretion to impose the balance of a previously suspended sentence when a -3- re-suspend all or part of the sentences. Id.; Alsberry v. Commonwealth, 39 Va. App. 314, 320

(2002).

The record reflects that the circuit court heard and considered Boyd’s statement of

remorse and acceptance of responsibility for the new convictions, but the court noted that Boyd

already had an extensive criminal history and had been convicted of two new, serious offenses

involving a minor while he was on probation. The court was entitled to conclude that he was not

amenable to rehabilitation through probation and to impose the full suspended sentence. In light

of these facts, we cannot conclude that no reasonable jurist would have reached the decision the

circuit court made here. Cf. Thomas, 62 Va. App. at 111.

To the extent that Boyd asserts that his sentence is unconstitutional because it is

disproportionate, he did not preserve that issue for appeal because he did not object to his

sentence on that ground. “No ruling of the trial court . . . will be considered as a basis for

reversal unless an objection was stated with reasonable certainty at the time of the ruling, except

for good cause shown or to enable this Court to attain the ends of justice.” Rule 5A:18. “Not

just any objection will do. It must be both specific and timely—so that the trial judge would

know the particular point being made in time to do something about it.” Bethea v.

Commonwealth, 297 Va. 730, 743 (2019) (quoting Dickerson v. Commonwealth, 58 Va. App.

351, 356 (2011)). “Although Rule 5A:18 allows exceptions for good cause or to meet the ends

of justice, [Boyd] does not argue that we should invoke these exceptions.” Edwards v.

Commonwealth, 41 Va. App. 752, 761 (2003) (en banc). We do not consider them sua sponte.

Id.

probationer commits a new offense during the suspension period. See 2021 Va. Acts Sp. Sess. I, ch. 538; Code § 19.2-306.1(B). -4- In any event, we long have declined to conduct a proportionality review in cases that do

not involve life sentences without the possibility of parole. See 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)). Therefore, we would not

conduct a proportionality review of Boyd’s sentence.

CONCLUSION

For these reasons, we affirm the circuit court’s judgment and grant the motion for leave

to withdraw. See Anders, 386 U.S. at 744. This Court’s records shall reflect that Michael Shane

Boyd is now proceeding without the assistance of counsel in this matter and is representing

himself on any further proceedings or appeal.

Affirmed.

-5-