Paul Sylvester Martin, Jr. v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: May 2, 2023
• Docket: 0340221
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges AtLee, Causey and Friedman

PAUL SYLVESTER MARTIN, JR. MEMORANDUM OPINION* v. Record No. 0340-22-1 PER CURIAM MAY 2, 2023 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE John W. Brown, Judge

(Jennifer T. Stanton, Senior Appellate Counsel; Indigent Defense Commission, on briefs), for appellant.

(Jason S. Miyares, Attorney General; Stephen J. Sovinsky, Assistant Attorney General, on brief), for appellee.

Paul Sylvester Martin, Jr., appeals a March 9, 2022 order that revoked four years of his

previously suspended sentences. Martin argues that the trial court did not properly consider the

mitigating evidence. Martin also contends that the trial court erred by denying his motions to

withdraw his “guilty plea.”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). For the following reasons, we affirm the trial court’s

judgment.

* This opinion is not designated for publication. See Code § 17.1 413. 1 Although a probation violation is not a criminal conviction, Alsberry v. Commonwealth, 39 Va. App. 314, 318 (2002), we nonetheless use Martin’s terminology. BACKGROUND

We consider the evidence received at a revocation hearing in the light most favorable to

the Commonwealth, the prevailing party below. Green v. Commonwealth, 75 Va. App. 69, 76

(2022).

In 2012, the trial court convicted Martin of possession of a Schedule I or II controlled

substance and felony eluding of a police officer. The trial court later sentenced Martin to a total of

seven years and six months’ incarceration, all suspended.

After a hearing on December 9, 2013, the trial court found that Martin had been convicted

of failure to appear, contempt of court, driving on a suspended license, third offense, and eluding,

and had absconded from probation. By order of June 9, 2014, the trial court revoked six months of

the previously suspended sentences and resuspended the remaining six years and twelve months

under the same conditions.

After a hearing on November 19, 2015, the trial court found that Martin had not reported

five driving citations and had failed to appear for two drug screens as well as scheduled visits with

the probation officer; he also had tested positive for cocaine and marijuana on three occasions. By

order of November 22, 2015, the trial court revoked one year and twelve months of the previously

suspended sentences and resuspended the balance under the same conditions. On February 2, 2016,

the trial court resuspended the sentences revoked by the November 22, 2015 order, conditioned on

Martin’s successful completion of drug court.

After a hearing on March 19, 2019, the trial court found that Martin had been convicted of

five driving-related offenses, including driving on a revoked license and driving on a suspended

license, and had not completed the drug court program. The trial court revoked the previously

suspended sentences, resuspending all but two years under the same conditions. The trial court

ordered Martin to complete a substance abuse program.

-2- Martin began supervised probation on September 7, 2021. Martin’s probation officer filed a

major violation report, alleging that Martin “refused” to sign the probation conditions document and

the “color code” drug testing agreement but agreed to “abide by” the conditions and “report as

instructed” for drug tests. The major violation report also alleged that Martin tested positive for

cocaine three days later on September 23, 2021, and again on October 26, 2021, and, without

contacting the probation officer, missed “color code” drug screens on October 21 and November 9,

2021. Additionally, the major violation report alleged that the drug treatment program discharged

Martin for non-compliance due to unexcused absences on October 7, October 21, and November 9,

2021, and failure to complete homework on November 4, 2021.

At a hearing on February 15, 2022, Martin “pleaded guilty” to violating the terms of his

probation by failing to report for two “color code” drug screens, being discharged from the

treatment program without completing it because of three unexcused absences, and testing positive

for cocaine, as alleged in the major violation report. The trial court found that Martin had violated

the conditions of his probation.

Alicia Cross, who was in a relationship with Martin, testified that she was helping him find

job opportunities and had made an appointment with a drug treatment program. She was “very

committed” to helping him “become a better man and father.”

Paula Vann, Martin’s mother, testified that she was committed to helping Martin get a

driver’s license so that he could work in her business. She was looking into counseling sessions that

she and Martin could go to together to help him and “build on our relationship.” Vann was

committed to helping Martin “thrive” and “be a productive citizen” and “a great father.”

Martin testified that he completed a “12-step” program “towards recovery” while

incarcerated. He testified that he was absent from class two times because he was not supposed to

-3- be “around people” due to a diagnosis of conjunctivitis in his eye on September 29, 2021, and

COVID-19 on October 21, 2021.

Martin apologized for refusing to sign the probation conditions and “color code” agreement.

He admitted that he tested positive for cocaine on September 23, 2021, just three days later, and

claimed that this “relapse” made him realize he “needed” a “drug treatment program.” He

explained his positive test for cocaine on October 26, 2021, by claiming that COVID-19 symptoms

made him “turn[] to drugs.” He also claimed that he did not complete the homework due November

4, 2021, because of COVID-19.

Martin asserted that his relationship with his mother would be “the driving force” for him to

get help. He emphasized that he had “sought out two programs” to address his drug use and had “a

plan going forward” to find a job and get help. Martin asked the trial court to defer sentencing so he

would have an “opportunity” to “put this plan into place.”

The Commonwealth argued that since 2013, when Martin “caught a break” with the

suspension of his sentences, he had violated probation multiple times and did not take advantage of

opportunities to get “recovery.” The Commonwealth argued for a sentence within the discretionary

sentencing guidelines.2

In allocution, Martin emphasized that he had admitted that he did not follow the probation

officer’s directions, even though he had “documentation that legally excused [him] from missing

classes.” He also emphasized that this was his “first technical violation” that was not accompanied

by “any new convictions.”

After argument by counsel, the trial court found that Martin had violated probation on

numerous occasions and chose to do whatever he “want[ed] to do and worr[ied] about the

2 The discretionary sentencing guidelines noted that the violations alleged were third or subsequent “technical violations” and recommended between one year and four years’ incarceration. -4- consequences later.” The trial court found that Martin had been convicted of multiple charges,

including contempt of court, failure to appear, eluding, and driving on a suspended license, and had

not completed drug court as ordered. The trial court also emphasized that the present violation was

Martin’s fourth in connection with the 2013 convictions. The trial court acknowledged that Vann

had Martin’s “best interest at heart” and that the substance abuse program Vann wanted Martin to

enroll in could be helpful if Martin “want[ed] to apply [him]self.” The trial court also

acknowledged that Vann and Martin wanted to “go to counseling” together, Martin wanted to get

his driver’s license, and he claimed to have “a plan” to “turn [his] life around.” The trial court also

acknowledged that Martin had completed a treatment program in 2019 but found that there were

significant differences between that program and a true substance abuse program. By order of

March 9, 2022, the trial court found that Martin had violated the conditions of probation, revoked

four years of the previously suspended sentences, resuspended the remaining twelve months on the

same conditions, and ended Martin’s supervised probation.

On March 2, 2022, Martin moved under Code § 19.2-296 to “withdraw his guilty plea” to

avoid “manifest injustice.” Martin asserted that he had valid medical reasons for missing the three

treatment program sessions and two drug screenings and that the drug program he completed while

incarcerated should have been credited by the trial court. He denied that he had used drugs as

indicated by the two positive drug tests and asserted that he had asked for retests.

At a hearing on Martin’s motion, Martin argued that he “would have had a chance” of

prevailing at the revocation hearing had he not admitted to violating the conditions of probation.

The Commonwealth argued that Martin had not shown that “manifest injustice” occurred. After

argument by counsel, the trial court found that Martin’s admission that he violated the conditions of

probation was supported by “ample evidence.” The trial court found that Martin had not

demonstrated manifest injustice and accordingly denied the motion.

-5- Martin moved for reconsideration of the trial court’s denial of his motion to withdraw his

guilty plea, which the trial court denied without a hearing. Martin filed another motion for

reconsideration, which the trial court denied without a hearing. Martin appeals.

STANDARD OF REVIEW

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). In a revocation appeal, the trial

court’s “findings of fact and judgment will not be reversed unless there is a clear showing of

abuse of discretion.” Green, 75 Va. App. at 76 (quoting Jacobs v. Commonwealth, 61 Va. App.

529, 535 (2013)).

ANALYSIS

I. Martin’s Mitigating Evidence

Martin argues that the trial court “failed to consider relevant mitigating factors that should

have been given significant weight.” He points to his efforts to address his substance abuse

problems, including “completing a substance abuse treatment course” and a “drug and alcohol

awareness class” while incarcerated, emphasizing that he thought those courses satisfied his

obligation to get treatment and that he “arranged” “for additional treatment” after his release.

Martin also asserts that the trial court should have “given more weight” to the “strong support

system” provided by Cross and Vann. He asserts that they “made significant efforts to assure” the

trial court that Martin would be able to “address his mental health needs,” “become employed,” and

“have a stable living situation” if he were released.

“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). “The court may again suspend all or

-6- any part of this sentence for a period up to the statutory maximum period for which the defendant

might originally have been sentenced to be imprisoned, less any time already served, and may place

the defendant upon terms and conditions or probation.” Id. Martin does not contend that the trial

court did not have sufficient cause to revoke his suspended sentences. Indeed, he admitted that he

did not appear for two “color code” drug screens and was unsuccessfully discharged from the

substance abuse program, violating Condition 6 and a special condition, as alleged in the major

violation report. Martin also admitted that he tested positive for cocaine while on probation as

alleged in the major violation report. Rather, Martin argues that the trial court abused its discretion

because the trial court failed to consider or give proper weight to his mitigating evidence.

As relevant to Martin’s claim, Code § 19.2-306(C) provides that “[t]he court may again

suspend all or any part of this sentence for a period up to the statutory maximum period for which

the defendant might originally have been sentenced to be imprisoned, less any time already served,

and may place the defendant upon terms and conditions or probation.” Thus, it was within the trial

court’s discretion to impose or suspend “all or any part” of the previously suspended sentences.

Id.

It was equally within the trial court’s purview to weigh any mitigating factors Martin

presented, such as his completion of substance abuse programs while incarcerated and

arrangements to enroll in another course after release, his relationship with his mother, and that

he wanted to get his driver’s license to help find employment. See Keselica v. Commonwealth,

34 Va. App. 31, 36 (2000). Despite Martin’s argument to the contrary, the record demonstrates

that the trial court considered these factors before fashioning an appropriate sentence.

“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

-7- (2007). Martin disregarded the conditions of probation on numerous occasions. “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)). Evidence supports the conclusion that Martin failed to make productive use of the

grace that had been extended to him.

Accordingly, we hold that the sentence the trial court imposed represents a proper

exercise of its sentencing discretion. See Alsberry v. Commonwealth, 39 Va. App. 314, 322

(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”).3

II. Withdrawal of “Guilty Plea”

Martin next contends that the trial court erred by not allowing him to “withdraw his guilty

plea” because he “provided more than adequate proof of his innocence or lack of criminal offense to

some of the allegations.”4

3 Martin also implicitly invites us to review his sentence for proportionality. 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, 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. 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”). 4 In his reply brief, Martin also asks for review of the trial court’s denial of his motion for reconsideration of the sentence. We are “limited to reviewing the assignments of error presented by the litigant,” Banks v. Commonwealth, 67 Va. App. 273, 289 (2017), and cannot “consider issues touched upon by the appellant’s argument but not encompassed by his assignment of error,” id. at 290. Martin’s assignments of error do not address the trial court’s denial of his motion to reconsider the sentence, and therefore we do not consider his argument. -8- During the revocation hearing and the hearing on Martin’s motion to withdraw his “guilty

plea,” both the trial court and the parties used the terminology of Martin “pleading guilty” to the

probation violations. It is well-established, however, that “[a]lthough a probation revocation

hearing is a criminal proceeding, it is not ‘a stage of a criminal prosecution.’” Alsberry, 39

Va. App. at 318 (quoting Green v. Commonwealth, 263 Va. 191, 195 (2002)). “Likewise, ‘[a]

probation violation is not itself a criminal conviction.’” Id. (alteration in original) (quoting Merritt

v. Commonwealth, 32 Va. App. 506, 509 (2000), overruled on other grounds by Jaccard v.

Commonwealth, 268 Va. 56 (2004)). Therefore, although the trial court asked whether he wanted to

“plead” “[g]uilty or not guilty,” Martin’s reply of “Guilty” admitted that he violated the conditions

of probation as alleged in the major violation report. See, e.g., Jacobs, 61 Va. App. at 532

(“Appellant admitted the violation, and [the judge] revoked ninety days of appellant’s previously

suspended sentence . . . .”).

Here, the record demonstrates that Martin presented after-the-fact evidence of a medical

reason for two of the unexcused absences but provided no explanation for his absence on November

9, 2021, or his failure to report for the “color code” drug screen on the same day. Additionally,

Martin admitted that he tested positive for cocaine on September 23, 2021, and claimed that this

“relapse” made him realize he “needed” treatment. He explained his positive test for cocaine on

October 26, 2021, by claiming that the symptoms of COVID-19 made him “turn[] to drugs.” This

testimony admitted drug use which refuted his post-hearing claim denying the drug use indicated by

the two positive drug tests.

Thus, there was ample evidence to support the trial court’s finding that Martin violated the

conditions of probation and the trial court did not abuse its discretion by denying his motion to

-9- withdraw his “guilty plea.”5 Accordingly, even assuming without deciding that the trial court had

continuing jurisdiction6 over Martin’s motions to withdraw his “guilty plea,” the trial court did not

err by denying the motions.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

5 “[T]his Court may affirm the judgment of a circuit court if first, the circuit court arrived at the ‘right result’ but relied on different reasoning, and second, the appellate analysis is largely legal and does not require additional factual findings.” Esposito v. Va. State Police, 74 Va. App. 130, 134 (2022). The trial court denied Martin’s motion after finding that Martin had not demonstrated that denying the motion would result in “manifest injustice” under Code § 19.2-296, which allows the withdrawal of a guilty plea within 21 days of the entry of a final order “to correct manifest injustice.” Regardless of the terminology used by the trial court and the parties, there was no guilty plea for Martin to withdraw because a probation violation is not a conviction. Alsberry, 39 Va. App. at 318. 6 On March 8, 2022, the trial court orally denied Martin’s motion to withdraw his guilty plea but did not enter an order until April 5, 2022, more than 21 days after entry of the March 9, 2022 final order. By order of March 28, 2022, 19 days after entry of the final order, the trial court denied without a hearing Martin’s March 28, 2022 motion for reconsideration of the March 8, 2022 ruling. Martin filed a final motion for reconsideration on April 5, 2022, which the trial court denied by order of April 15, 2022, more than 21 days after entry of the final order. See Rule 1:1(a) (“All final judgments, orders, and decrees, irrespective of terms of court, remain under the control of the trial court and may be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer.”). - 10 -