Mack v. Commonwealth

1

TORMAN DEVON MACK, SR., S/K/A TORMON DEVON MACK v. COMMONWEALTH OF VIRGINIA

No. 0735-22-2

Court of Appeals of Virginia

June 6, 2023

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Phillip L Hairston, Judge

Aaron C. Forstie, Senior Assistant Public Defender, on brief, for appellant.

Jason S. Miyares, Attorney General; Susan Hallie Hovey-Murray Assistant Attorney General, on brief, for appellee.

Present: Chief Judge Decker, Judges Malveaux and Causey

MEMORANDUM OPINION ^[*]

PER CURIAM.

Torman Devon Mack, Sr., challenges the sentence the trial court imposed upon its finding that he had violated the terms and conditions of a previously-suspended 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). For the reasons that follow we affirm the trial court's judgment.

BACKGROUND

"On appeal, '[w]e "view the evidence received at [a] revocation hearing in the light most favorable to the Commonwealth, as the prevailing party, including all reasonable and legitimate inferences that may properly be drawn from it."'" Green v. Commonwealth, 75 Va.App. 69, 76 (2022) (alterations in original) (quoting Johnson v. Commonwealth, 296 Va. 266, 274 (2018)). "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.'" Id. (quoting Jacobs v. Commonwealth, 61 Va.App. 529, 535 (2013)).

The appellant pled guilty in 2010 to possession of cocaine with the intent to distribute. The trial court accepted his plea and convicted him of the charge. By final order of April 22, 2010, the court sentenced him to 20 years' incarceration, with 12 years suspended, and supervised probation "until released by the [c]ourt or by the [p]robation [o]fficer." The appellant was released from prison in 2017 and began reporting to probation. In 2018, the appellant's probation officer filed a "Major Violations Report" and the appellant was brought before the Circuit Court of the City of Richmond for a violation of the terms and conditions of his probation.^[1] The court found that he had violated his probation and revoked 60 days of the previously suspended sentence. After completing his sentence for the 2018 probation violation and an unrelated sentence from a neighboring jurisdiction, the appellant returned to supervised probation in April 2019.

On June 8, 2021, the appellant's probation officer reported that the appellant had again violated the terms of his probation by repeatedly disregarding the probation officer's instructions. The violation report provided that the appellant failed to report for office appointments on eight separate occasions and he tested positive for opiates and marijuana in July 2019 and March 2020. The probation officer's report also noted that the appellant had been arrested in November 2020 for failing to provide child support.^[2] The probation officer also reported that on March 16, 2021, the appellant was arrested for drug and traffic offenses. ^[3] In an addendum to the report, the probation officer explained that the appellant failed to appear for a court date on the new charges and was a fugitive from justice. The trial court issued a capias on June 10, 2021. The appellant was served with the capias on July 16, 2021.

At the revocation hearing, the Commonwealth introduced the probation officer's report and a copy of the appellant's December 4, 2020 conviction order for failure to appear. In addition, Officer Wren Sinclair of the City of Richmond Police Department, the arresting officer for the appellant's March 2021 offenses, testified. Officer Wren described the traffic stop and his subsequent search of the appellant. During the search he found several thousand dollars of cash and a large bag containing approximately 15 grams of cocaine.

The trial court found that the appellant had violated Condition 1 (new law violation) and Condition 6 (failing to follow the probation officer's instructions) of the terms and conditions of his probation.^[4]

After finding the violations, the court heard evidence to determine an appropriate sentence. The appellant's girlfriend, Lanitra Davis, testified on the appellant's behalf. She told the court that the appellant acts as a father to her three young children and was the sole provider for his own three-year-old daughter.^[5] On cross-examination, Davis acknowledged she was not aware of some of the appellant's previous convictions, but knew about his new charges. She testified that she had encouraged the appellant to attend his court dates. Davis agreed that children should not be around cocaine. However, she testified that to her knowledge, the children were not exposed to illegal substances and were not present when the appellant was arrested.

The appellant argued that the trial court should impose a sentence within the discretionary guidelines recommendation of no more than six months' incarceration. He noted that he already had been incarcerated for a "significant period of time." He argued that the Commonwealth had nolle prosequied the drug charge and he only received a $25 fine for the misdemeanor failure to appear. In an effort to explain his positive drug screens, the appellant claimed that he had been prescribed pain medication as a result of serious injuries he suffered in the car accident that caused the death of his daughter's mother. He acknowledged that he had not been a "perfect" probationer, but noted he had not committed any violent offenses. Further, he represented that he had been accepted into two drug recovery programs and contended that his time would be better served attending the recovery programs and being with his family.

In response, the Commonwealth argued that an upward deviation from the discretionary sentencing guidelines was appropriate because the appellant had consistently violated his probation. The prosecutor noted that after testing positive for drugs, the appellant failed to provide proof of his medication and did not report to his probation officer on several different occasions. Additionally, the Commonwealth pointed out that when the appellant was arrested, he was in possession of 15 grams of cocaine and thousands of dollars in cash. The prosecutor asserted that the appellant's recent arrest and criminal history illustrated that he was a drug dealer. She argued that the appellant posed a danger to the community, so a more substantial sentence was appropriate.

Following closing arguments the court determined that it was appropriate to revoke the appellant's previously-suspended sentence and resuspend all but two years and ten months.^[6]

ANALYSIS

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). Moreover, under the revocation statute in effect when appellant violated his probation and the trial court issued process, once it found that appellant had violated the terms of the suspension, the court was obligated to revoke the suspended sentence and the sentence was in "full force and effect."^[7] Code § 19.2-306(C)(ii) (2020 Cum Supp.); cf. Heart v. Commonwealth, 75 Va.App. 453, 463 (2022) (noting that, but for the consent of all parties to proceed under the new law, the provisions of the previous version of Code § 19.2-306 would apply where the violation, the violation report, and the issuance of the capias all occurred prior to July 1, 2021). Under the code section that controlled the appellant's sentencing hearing, the court was permitted to exercise "broad discretion" to revoke a suspended sentence. Alsberry v. Commonwealth, 39 Va.App. 314, 320 (2002) (quoting Davis v. Commonwealth, 12 Va.App. 81, 86 (1991)). "When exercising its discretionary power, the trial court 'has a range of choice, and . . . its decision will not be disturbed as long as it stays within that range and is not influenced by any mistake of law.'" Cellucci v. Commonwealth, 77 Va.App. 36, 48 (2023) (en banc) (alteration in original) (quoting Lawlor v. Commonwealth, 285 Va. 187, 212-13 (2013)).

The trial court was permitted-but not required-to resuspend all or part of the sentence. Code § 19.2-306(C)(ii) (2020 Cum. Supp.); Alsberry, 39 Va.App. at 320. The record demonstrates that the court had more than sufficient cause to revoke the appellant's suspended sentence because he was convicted of a new charge during the probation period and repeatedly failed to cooperate with his probation officer.^[8] The appellant does not challenge the trial court's finding that he violated the terms of his suspended sentence. Instead, he challenges only the sentence the court imposed upon finding the violations.

The appellant asserts that the trial court either failed to consider his mitigation evidence or improperly weighed his criminal record against the mitigating evidence. He reaches this conclusion by noting that the court did not expressly comment on the evidence he presented in mitigation either when it pronounced sentence or in its written explanation for its upward departure from the discretionary sentencing guidelines.

This reasoning is inconsistent with the law. "[A]bsent a statutory mandate . . . a trial court is not required to give findings of fact and conclusions of law." Cannaday v. Commonwealth, 75 Va.App. 707, 719 (2022) (alterations in original) (quoting Fitzgerald v. Commonwealth, 223 Va. 615, 627 (1982)). Here, the appellant identifies no statutory mandate that the trial court state what weight it gave to the...