Roger Lee Compton, Jr. v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: April 26, 2022
• Docket: 0798213
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Senior Judges Annunziata, Clements and Haley UNPUBLISHED

ROGER LEE COMPTON, JR. MEMORANDUM OPINION ∗ v. Record No. 0798-21-3 PER CURIAM APRIL 26, 2022 COMMONWEALTH OF VIRGINIA

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

(Eric T. Cronin, Senior Trial Attorney), for appellant. Appellant submitting on brief.

(Jason S. Miyares, Attorney General; Sharon M. Carr, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.

Appellant’s counsel has moved for leave to withdraw. The motion to withdraw is

accompanied by a brief referring to the part of the record that might arguably support this appeal.

A copy of that brief has been furnished to appellant with sufficient time for him to raise any

matter that he chooses. On appeal, appellant argues that the trial court abused its discretion by

revoking his previously suspended sentence. He also appears to argue, pro se, that he did not

receive credit for time served and that he received ineffective assistance of counsel. We have

reviewed the parties’ pleadings, fully examined the proceedings, and determined the case to be

wholly without merit as set forth below. Thus, the panel unanimously holds that oral argument is

unnecessary. See Code § 17.1-403(ii)(a); Rule 5A:27(a).

∗ Pursuant to Code § 17.1-413, this opinion is not designated for publication. BACKGROUND

“In accordance with familiar principles of appellate review, the facts will be stated in the

light most favorable to the Commonwealth, the prevailing party [below].” Poole v. Commonwealth,

73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). In

doing so, we discard any of appellant’s conflicting evidence, and regard as true all credible evidence

favorable to the Commonwealth and all inferences that may reasonably be drawn from that

evidence. Gerald, 295 Va. at 473.

On August 27, 2014, the trial court convicted appellant, under his guilty plea, of petit

larceny, third or subsequent offense, in violation of Code §§ 18.2-103 and 18.2-104. The trial

court sentenced appellant to four years’ incarceration with two years and six months suspended.

Appellant was released from incarceration on June 12, 2017.

On March 12, 2018, appellant’s probation officer filed a major violation report detailing

appellant’s non-compliance with probation. The report stated that appellant had been charged

with possession of a firearm by a convicted felon, burglary, and grand larceny. The report also

stated that appellant had failed to report. On May 25, 2018, the trial court found appellant in

violation of the terms of his probation and revoked and resuspended the entirety of appellant’s

two years and six months’ suspended sentence.

Appellant’s probation officer filed a second major violation report in December 2018.

This report included the pending burglary and grand larceny charges as well as new criminal

charges for abduction, unauthorized use of a vehicle, and robbery. The report also stated that

appellant had been convicted of two misdemeanor counts of public swearing/intoxication. The

probation officer received “a community complaint” regarding the incident that led to the public

swearing/intoxication convictions. “A family member also reported that [appellant] was found at

[a motel] unresponsive and was given Narcan but refused further medical treatment.” An

-2- addendum to the major violation report advised that appellant had been convicted of petit

larceny, found not guilty of burglary, and his robbery charge was dismissed. Further, his charges

for abduction, unauthorized use, and additional counts of robbery and strangulation had been

nolle prosequied. On February 14, 2020, the trial court found appellant in violation of the terms

of his probation and revoked and resuspended all but thirty days of his suspended sentence.

Appellant’s third major violation report, dated October 22, 2020, opined that appellant

had “made a poor adjustment to supervision since being released from incarceration” and noted

that appellant had been arrested for the following: two counts of shoplifting; two counts of

public swearing/intoxication; petit larceny, third or subsequent offenses; three counts of

trespassing; two counts of failure to appear; and multiple traffic offenses. The report also stated

that appellant had been served with a domestic relations protective order, had been terminated

from his employment, and had absconded from probation. The trial court issued a show cause on

November 25, 2020.

A January 2021 addendum to the major violation report stated that appellant had been

convicted of two counts of trespassing, two counts of failure to appear, and a third count of

trespassing was nolle prosequied. Appellant had also been arrested and convicted for possession

of illegally acquired alcohol. Two additional addenda reported that appellant had been arrested

and convicted of a new felony petit larceny, third or subsequent offense, and two misdemeanor

counts of shoplifting.

At the July 9, 2021 revocation hearing, the trial court took judicial notice of the prior

sentencing order, the prior revocation orders, the October 22, 2020 major violation report, and

the addenda. Appellant pled guilty to violating the terms and conditions of his probation and

suspended sentence. The major violation report and the numerous addenda were collectively

marked as Commonwealth’s Exhibit A. Over the Commonwealth’s objection, appellant

-3- submitted an article from The Star-Tribune, which gave an account of appellant’s alleged

abduction during the time he absconded from probation.

During the sentencing phase of the hearing, the Commonwealth rested on the probation

violation report and its addenda. Appellant’s counsel noted that “[he] needs to do better if he is

going to be successful on probation.” In allocution appellant asked the trial court for mercy. He

further contended that some of his violations were not his fault.

After hearing argument from counsel, the trial court found appellant guilty of violating the

terms and conditions of his probation. The trial court observed that “the problem with you,

[appellant], is you won’t keep your hands off other people’s property.” Appellant responded that

“[he] didn’t steal nothing.” He then argued that none of the establishments that charged him with

larceny had any video of the crime, yet he was forced to take the plea bargain because the case kept

getting continued. The trial court revoked the remaining two years and five months of appellant’s

previously suspended sentence. The trial court explained this upward departure from the guidelines

in the sentencing revocation report: “Habitual thief deserving of no consideration.” Appellant filed

a motion to reconsider which the trial court denied. This appeal follows.

ANALYSIS

Appellant, through counsel, contends that the trial court abused its discretion when it

upwardly departed from the guidelines and revoked the entirety of the remaining suspended time.

He argues that the court’s failure to utilize the sentencing guidelines as a tool in affixing the

appropriate punishment was an abuse of discretion. He further argues that the trial court should

have explained the role the prior sentencing order, and two prior revocation orders, played in

crafting his sentence. He also contends that the trial court did not consider his mitigating

evidence. Appellant introduced a Star-Tribune article, which corroborated appellant’s assertion

at the revocation hearing that he was abducted and beaten in October 2021 during the period he

-4- was accused of absconding from supervision. Finally, appellant argues that his punishment is

disproportionate to the violation alleged.

Appellant, pro se, alleges that he has not been given credit for the time he was

incarcerated before being sentenced on the probation violation subject of this appeal, and on the

two prior probation violations from 2018 and 2020. Consequently, appellant argues, the trial

court “abused [its] discretion not only by sentencing [him] over his guidelines, but to time [he]

has already served.” Finally, appellant argues that his trial attorney failed to present mitigating

evidence at the revocation hearing.

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 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.

“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 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.

As relevant to appellant’s claim, Code § 19.2-306.1(B) provides that

[i]f the court finds the basis of a violation of the terms and conditions of a suspended sentence or probation is that the defendant was convicted of a criminal offense that was committed after the date of the suspension, . . . then the court may revoke the -5- suspension and impose or resuspend any or all of that period previously suspended.

The record demonstrates that appellant had suffered new criminal convictions during the

suspension period. Thus, it was within the trial court’s discretion to “impose or resuspend any or

all” of the previously-suspended sentence. It was equally within the trial court’s purview to

weigh any mitigating factors appellant presented, such as the Star-Tribune article which gave an

account of appellant’s alleged abduction during the time he absconded from probation. See

Keselica v. Commonwealth, 34 Va. App. 31, 36 (2000).

“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). While on probation, appellant accumulated ten convictions; two of which were

for the same type of offense as the underlying crime appellant was convicted of in this revocation

appeal. These transgressions culminated in appellant absconding from probation. Appellant’s

disregard of the terms of his suspended sentence supports a finding that he was not amenable to

rehabilitation. “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)). Appellant failed to make productive use of the

grace that had been extended to him and continued to engage in criminal conduct during the

suspension period.

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

-6- suspended sentence in its entirety “in light of the grievous nature of [the defendant’s] offenses

and his continuing criminal activity”).

The probation violation guidelines, like the standard sentencing guidelines, “are not

binding on the trial judge; rather, the guidelines are merely a ‘tool’ to assist the judge in fixing an

appropriate punishment.” Belcher v. Commonwealth, 17 Va. App. 44, 45 (1993). Code

§ 19.2-298.01(F) precludes appellate review of whether the trial court adhered to Code

§ 19.2-298.01(B). Specifically, Code § 19.2-298.01(F) states that “[t]he failure to follow any or

all of the provisions of [Code § 19.2-298.01] in the prescribed manner shall not be reviewable on

appeal or the basis of any other post-conviction relief.” (Emphasis added). See also West v.

Dir., Dept. of Corr., 273 Va. 56, 65 (2007) (holding Virginia sentencing guidelines are

discretionary); Fazili v. Commonwealth, 71 Va. App. 239, 248-49 (2019) (holding Code

§ 19.2-298.01(F) prohibits appellate review of a trial court’s failure to follow discretionary

sentencing guidelines). In view of this broad statutory exemption from appeal, we hold that

examining whether the trial court’s written explanation in the sentencing revocation report

satisfies Code § 19.2-298.01(B) provides no basis for review on appeal.

To the extent that appellant argues that his sentence was disproportionate, 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. (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”). Accordingly, we find no abuse of discretion with the trial court’s sentencing decision.

-7- Further, this Court declines to review appellant’s pro se argument that trial counsel was

ineffective at the July 9, 2021 revocation hearing. “Claims of ineffective assistance are not

cognizable on direct appeal . . . .” Vay v. Commonwealth, 67 Va. App. 236, 260 (2017); see Lenz v.

Commonwealth, 261 Va. 451, 460 (2001) (“Claims raising ineffective assistance of counsel must be

asserted in a habeas corpus proceeding . . . .”). Finally, we note that the record does not support

appellant’s claim that he was sentenced to time he has already served.

CONCLUSION

Accordingly, we affirm the trial court’s judgment and grant the motion for leave to

withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). This Court’s records shall reflect

that Roger Lee Compton, Jr. is now proceeding without the assistance of counsel in this matter

and is representing himself on any further proceedings or appeal.

Affirmed.

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