COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Beales, Chaney and Senior Judge Annunziata
ROBERT STEVEN MAXEY, JR. MEMORANDUM OPINION* v. Record No. 1725-22-2 PER CURIAM OCTOBER 3, 2023 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF NEW KENT COUNTY B. Elliott Bondurant, Judge
(Charles E. Haden, on brief), for appellant.
(Jason S. Miyares, Attorney General; Mason D. Williams, Assistant Attorney General, on brief), for appellee.
The trial court found Robert Steven Maxey, Jr. in violation of his probation for his 2012
convictions for possession of burglary tools and destruction of property. The trial court revoked the
remainder of Maxey’s suspended sentences, resuspended three years and one month, imposed a
four-year sentence of incarceration, and removed Maxey from supervised probation. Maxey
contends that the trial court abused its discretion in (i) refusing to resuspend his entire sentence to
allow him to participate in a drug treatment program and (ii) denying his motion to reconsider his
sentence. 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). Accordingly, this Court affirms the trial court’s judgment.
* This opinion is not designated for publication. See Code § 17.1-413(A). 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.
Upon Maxey’s guilty pleas, the trial court convicted Maxey for possessing burglary tools
and felonious destruction of property. By order dated July 3, 2012, the trial court sentenced him to
incarceration for ten years with eight years and seven months suspended. The trial court ordered
Maxey to comply with supervised probation after his release from incarceration for an indefinite
period not to exceed ten years.
In December 2012, the trial court found Maxey in violation of his probation for using
alcohol while on work release. The trial court revoked Maxey’s suspended sentences and
resuspended them. In addition to the previously-imposed probation conditions, the revocation order
required Maxey to successfully complete the Salvation Army Program after his release from
confinement. Upon Maxey’s motion, the trial court subsequently modified the revocation order to
allow him to complete a program at Restoration and Wellness House instead of the Salvation Army
Program.
In October 2016, the police arrested Maxey for violating his probation by incurring a
conviction for driving while intoxicated, third offense, refusing a blood or breath test, and driving
with a revoked license, DUI-related. The trial court found Maxey in violation of his probation,
revoked the suspended sentences, and resuspended all but one year.
In January 2019, Maxey’s probation officer filed a major violation report (MVR) alleging
that Maxey tested positive for cocaine and alcohol, changed his residence without permission, and
absconded from supervision. In April 2019, the trial court found Maxey in violation of his
-2- probation for a third time. The trial court revoked his remaining suspended sentences of seven years
and seven months, resuspended all but six months, and ordered that he be placed in the Community
Corrections Alternative Program (CCAP) upon his release from incarceration.
In June 2022, Maxey’s probation officer filed an MVR alleging that he violated his
probation by failing to report to the probation office within three days of his release from
incarceration, missing two scheduled probation appointments, testing positive for cocaine, fentanyl,
and methadone, and failing to enroll, as instructed, in a substance abuse treatment program with the
Chesterfield Community Service Board. In addition, new criminal charges were pending against
Maxey in Henrico County and Prince George County. The police arrested Maxey for the alleged
probation violations in August 2022, and a probation revocation hearing was held in October 2022.
At the October 2022 revocation hearing, Maxey stipulated that he was in violation of his
probation. Maxey testified about his strong motivation to participate and succeed in the Henrico
County Drug Court program—for which he had been found eligible in a felony drug case pending
in Henrico County Circuit Court—and he asked the trial court not to impose an active sentence so
that he could complete that program. Maxey testified that the CCAP program had ended three
months early due to program restrictions related to the COVID-19 pandemic. He claimed to have
no knowledge of the probation officer’s instruction to participate in the Chesterfield Community
Service Board substance abuse program. He asserted that he tested positive for fentanyl because it
was administered during his hospitalization for prostate cancer. The trial court expressed disbelief
in this claim and found that Maxey was “untruthful with the Court.”1 The trial court found Maxey
in violation of his probation, revoked his suspended sentences of seven years and one month, and
resuspended three years and one month, thus imposing a four-year sentence of incarceration.
1 After Maxey testified that fentanyl was administered to him when he was hospitalized for prostate cancer, the trial court asked Maxey’s counsel, “does he expect me to believe that?” Maxey’s counsel replied, “I don’t think hospital[s] prescribe fentanyl.” -3- Maxey moved for modification of his October 2022 revocation sentence, alleging that he
had documentation to prove that he tested positive for fentanyl because it was prescribed and
administered by doctors during his hospitalizations. At a hearing on Maxey’s motion, Maxey
displayed screenshots from a cell phone showing that he was given fentanyl in the hospital on
August 24, 2021, and May 29, 2022. The trial court denied Maxey’s motion to modify his sentence,
noting that it was Maxey’s third or subsequent probation violation and that he continued to use
cocaine. This appeal followed.
ANALYSIS
I.
While conceding that he violated the terms of his probation, Maxey argues that the trial
court abused its discretion in imposing a four-year sentence of incarceration. Although Maxey does
not claim that the trial court lacked sufficient cause to revoke his suspended sentences, he contends
that the trial court abused its discretion by failing to consider his mitigating circumstances, such as
his motivation to succeed in the Henrico County Drug Court Program. However, the record does
not support Maxey’s claim that the trial court failed to weigh his mitigation evidence. “Absent a
statutory requirement to do so, ‘a trial court is not required to give findings of fact and
conclusions of law.’” Bowman v. Commonwealth, 290 Va. 492, 500 n.8 (2015) (quoting
Fitzgerald v. Commonwealth, 223 Va. 615, 627 (1982)). “Barring 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). Maxey’s
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COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Beales, Chaney and Senior Judge Annunziata
ROBERT STEVEN MAXEY, JR. MEMORANDUM OPINION* v. Record No. 1725-22-2 PER CURIAM OCTOBER 3, 2023 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF NEW KENT COUNTY B. Elliott Bondurant, Judge
(Charles E. Haden, on brief), for appellant.
(Jason S. Miyares, Attorney General; Mason D. Williams, Assistant Attorney General, on brief), for appellee.
The trial court found Robert Steven Maxey, Jr. in violation of his probation for his 2012
convictions for possession of burglary tools and destruction of property. The trial court revoked the
remainder of Maxey’s suspended sentences, resuspended three years and one month, imposed a
four-year sentence of incarceration, and removed Maxey from supervised probation. Maxey
contends that the trial court abused its discretion in (i) refusing to resuspend his entire sentence to
allow him to participate in a drug treatment program and (ii) denying his motion to reconsider his
sentence. 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). Accordingly, this Court affirms the trial court’s judgment.
* This opinion is not designated for publication. See Code § 17.1-413(A). 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.
Upon Maxey’s guilty pleas, the trial court convicted Maxey for possessing burglary tools
and felonious destruction of property. By order dated July 3, 2012, the trial court sentenced him to
incarceration for ten years with eight years and seven months suspended. The trial court ordered
Maxey to comply with supervised probation after his release from incarceration for an indefinite
period not to exceed ten years.
In December 2012, the trial court found Maxey in violation of his probation for using
alcohol while on work release. The trial court revoked Maxey’s suspended sentences and
resuspended them. In addition to the previously-imposed probation conditions, the revocation order
required Maxey to successfully complete the Salvation Army Program after his release from
confinement. Upon Maxey’s motion, the trial court subsequently modified the revocation order to
allow him to complete a program at Restoration and Wellness House instead of the Salvation Army
Program.
In October 2016, the police arrested Maxey for violating his probation by incurring a
conviction for driving while intoxicated, third offense, refusing a blood or breath test, and driving
with a revoked license, DUI-related. The trial court found Maxey in violation of his probation,
revoked the suspended sentences, and resuspended all but one year.
In January 2019, Maxey’s probation officer filed a major violation report (MVR) alleging
that Maxey tested positive for cocaine and alcohol, changed his residence without permission, and
absconded from supervision. In April 2019, the trial court found Maxey in violation of his
-2- probation for a third time. The trial court revoked his remaining suspended sentences of seven years
and seven months, resuspended all but six months, and ordered that he be placed in the Community
Corrections Alternative Program (CCAP) upon his release from incarceration.
In June 2022, Maxey’s probation officer filed an MVR alleging that he violated his
probation by failing to report to the probation office within three days of his release from
incarceration, missing two scheduled probation appointments, testing positive for cocaine, fentanyl,
and methadone, and failing to enroll, as instructed, in a substance abuse treatment program with the
Chesterfield Community Service Board. In addition, new criminal charges were pending against
Maxey in Henrico County and Prince George County. The police arrested Maxey for the alleged
probation violations in August 2022, and a probation revocation hearing was held in October 2022.
At the October 2022 revocation hearing, Maxey stipulated that he was in violation of his
probation. Maxey testified about his strong motivation to participate and succeed in the Henrico
County Drug Court program—for which he had been found eligible in a felony drug case pending
in Henrico County Circuit Court—and he asked the trial court not to impose an active sentence so
that he could complete that program. Maxey testified that the CCAP program had ended three
months early due to program restrictions related to the COVID-19 pandemic. He claimed to have
no knowledge of the probation officer’s instruction to participate in the Chesterfield Community
Service Board substance abuse program. He asserted that he tested positive for fentanyl because it
was administered during his hospitalization for prostate cancer. The trial court expressed disbelief
in this claim and found that Maxey was “untruthful with the Court.”1 The trial court found Maxey
in violation of his probation, revoked his suspended sentences of seven years and one month, and
resuspended three years and one month, thus imposing a four-year sentence of incarceration.
1 After Maxey testified that fentanyl was administered to him when he was hospitalized for prostate cancer, the trial court asked Maxey’s counsel, “does he expect me to believe that?” Maxey’s counsel replied, “I don’t think hospital[s] prescribe fentanyl.” -3- Maxey moved for modification of his October 2022 revocation sentence, alleging that he
had documentation to prove that he tested positive for fentanyl because it was prescribed and
administered by doctors during his hospitalizations. At a hearing on Maxey’s motion, Maxey
displayed screenshots from a cell phone showing that he was given fentanyl in the hospital on
August 24, 2021, and May 29, 2022. The trial court denied Maxey’s motion to modify his sentence,
noting that it was Maxey’s third or subsequent probation violation and that he continued to use
cocaine. This appeal followed.
ANALYSIS
I.
While conceding that he violated the terms of his probation, Maxey argues that the trial
court abused its discretion in imposing a four-year sentence of incarceration. Although Maxey does
not claim that the trial court lacked sufficient cause to revoke his suspended sentences, he contends
that the trial court abused its discretion by failing to consider his mitigating circumstances, such as
his motivation to succeed in the Henrico County Drug Court Program. However, the record does
not support Maxey’s claim that the trial court failed to weigh his mitigation evidence. “Absent a
statutory requirement to do so, ‘a trial court is not required to give findings of fact and
conclusions of law.’” Bowman v. Commonwealth, 290 Va. 492, 500 n.8 (2015) (quoting
Fitzgerald v. Commonwealth, 223 Va. 615, 627 (1982)). “Barring 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). Maxey’s
argument fails because there is no clear evidence showing that the trial court ignored his
mitigation evidence.
The weight given to any mitigating factors presented by the defendant is within the trial
court’s purview. Keselica v. Commonwealth, 34 Va. App. 31, 36 (2000). Therefore, this Court
-4- will not disturb the trial court’s judgment based on its assessment of Maxey’s claimed desire to
participate in the drug court program. Given Maxey’s numerous probation violations, the trial
court acted within its discretion in imposing a sentence of active incarceration within the
statutorily-permitted range. See Code § 19.2-306(C) (“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.”).
II.
Maxey maintains that the trial court erred in denying his motion for modification of
sentence under Code § 19.2-303. A trial court’s authority to suspend or modify an unserved
portion of a felony sentence is restricted to situations in which the person has not yet been
transferred to the Department of Corrections or within 60 days of such transfer. See Code
§ 19.2-303. The statute provides that a court “may . . . suspend or otherwise modify” the
unserved portion of a felony sentence if “there are circumstances in mitigation of the offense”
and “it appears compatible with the public interest.” Id.; see Wilson v. Commonwealth,
54 Va. App. 631, 641 (2009). “A mitigating circumstance is ‘a fact or situation that does not
bear on the question of the defendant’s guilt, but that is considered by the court in imposing
punishment, esp. in lessening the severity of a sentence.” Wilson, 54 Va. App. at 641 (quoting
Black’s Law Dictionary 260 (8th ed. 2004)).
Maxey asserts that in support of his motion to modify the revocation sentence, he
provided evidence that he was administered fentanyl while he was hospitalized—thereby
corroborating his testimony at the revocation hearing that the trial court found to be untruthful.
Notwithstanding the evidence that Maxey was administered fentanyl in the hospital, the trial
court refused to modify the revocation sentence, noting that Maxey had continued to use cocaine
and had violated probation three or more times. Considering the totality of the facts and
-5- circumstances, this Court finds no abuse of discretion in the trial court’s decision to deny
Maxey’s motion to modify his revocation sentence.
CONCLUSION
For the foregoing reasons, this Court affirms the trial court’s judgment.
Affirmed.
-6-