Boggs v. Commonwealth
| Decision Date | 10 May 2022 |
| Docket Number | 0586-21-2 |
| Parties | ANDREA ROSE BOGGS v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY Ricardo Rigual Judge
(Lauren Whitley; Office of the Public Defender, on briefs) for appellant.
(Jason S. Miyares, Attorney General; Leanna C. Minix, Assistant Attorney General, on brief), for appellee.
Present: Judges Russell, Ortiz and Raphael
Andrea Rose Boggs appeals from the decision of the Circuit Court of Spotsylvania County revoking a portion of her suspended sentence. Boggs contends that the trial court abused its discretion by revoking her suspended sentence because it "improperly weighed mitigation factors." Boggs also argues that the trial court abused its discretion by denying her a "continuance for the purposes of treatment." After examining the briefs and record, 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). Because the trial court did not abuse its discretion by improperly weighing the mitigation factors and Boggs does not show she suffered actual prejudice from the trial court denying her motion for continuance, we affirm the decision of the trial court.
In November 2017, Boggs entered into a deferred disposition agreement with the Commonwealth under Code § 18.2-251 regarding a charge of possession of a controlled substance in violation of Code § 18.2-250. The terms of the agreement required Boggs to submit to regular drug tests during two years of supervised probation and maintain good behavior for a period of five years. The agreement also provided that if Boggs violated the terms of her probation, the trial court would terminate her "first offender status" and sentence her to three years' incarceration with two years suspended.
On August 14, 2018, the trial court found Boggs in violation of the terms of the deferred disposition agreement. Consequently, the trial court sentenced her to three years' incarceration with two years suspended. After serving one year, Boggs returned to supervised probation in March 2019.
In January 2021, Boggs's probation officer filed a major violation report and requested a show cause hearing. The report detailed a series of violations beginning in October 2019 when Boggs tested positive for cocaine and marijuana. Then, Boggs repeatedly tested positive for numerous drugs, including amphetamine, cocaine, fentanyl, methadone, morphine, and marijuana. She also received summonses for reckless driving, driving without a license, and operating a vehicle without insurance. Boggs was instructed to begin substance abuse treatment, but after testing positive for drugs and missing her appointments, she was discharged from the program. In an addendum to the major violation report, the probation officer stated that Boggs declined in-patient treatment "due to her family."
Following a March 24, 2021 hearing, the trial court released Boggs on bond pending the revocation hearing scheduled for May 4, 2021. When Boggs reported to probation on April 1, 2021, she again tested positive for drugs, and she admitted that she "slipped up again the day [she] got released." Boggs was admitted to outpatient treatment on April 19, 2021, and her probation officer confirmed that she was complying with the treatment program.
At the revocation hearing, Boggs's counsel asked for a two-month continuance to allow Boggs to "continue with treatment and continue to be compliant knowing that she might have to stipulate to the violation today if the [prosecution] so desires." Counsel further asked the trial court, that if it would not grant the two-month continuance, to grant Boggs "a week or two" continuance to allow counsel to "get the appropriate information" and review the sentencing guidelines with Boggs. The Commonwealth objected to any continuance. The trial court stated: Boggs then stipulated that she had violated the terms of her probation, and the trial court found her in violation. The court set the sentencing hearing for May 18, 2021.
At the sentencing hearing, the trial court found that Boggs's conviction for operating an uninsured vehicle without paying the uninsured motorist fee was not a criminal conviction and the prepared sentencing guidelines therefore did not apply. In mitigation, Boggs highlighted her addiction which began with opioids prescribed for pain, the overdose which led to her underlying possession conviction, and her attempts to recover from her dependence on drugs. Boggs emphasized that she "truly mean[t] it this time" and that she wanted to seek help for her addiction to drugs.
In response, the trial court noted that "what's really troubling about this is you were released on bond, and almost as soon as you were released on bond you continued to test positive for these substances." Although the trial court "sincerely" "hope[d]" that Boggs would get the help she needs, it was troubled by her persistent use of drugs despite the previous revocation. The trial court revoked Boggs's suspended sentence and re-suspended one year, leaving her with an active term of incarceration of one year.
"On appeal, we review the evidence in the 'light most favorable' to the Commonwealth, the prevailing party in the trial court." Yerling v. Commonwealth, 71 Va.App. 527, 530 (2020) (quoting Vasquez v. Commonwealth, 291 Va. 232, 236 (2016)). This standard requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn [from that evidence]." Bagley v. Commonwealth, 73 Va.App. 1, 26 (2021) (alteration in original) (quoting Cooper v. Commonwealth, 54 Va.App. 558, 562 (2009)).
"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 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). However, the trial court abuses its discretion as a matter of law "when a relevant factor that should have been given significant weight is not considered; when an irrelevant or improper factor is considered and given significant weight; and when all proper factors, and no improper ones, are considered, but the court, in weighing those factors, commits a clear error of judgment." Landrum v. Chippenham and Johnston-Willis Hosps., Inc., 282 Va. 346, 352 (2011) (quoting Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984)).
Boggs argues that the trial court abused its discretion by sentencing her to "one year of active incarceration when she was engaged in treatment, had maintained contact with her probation officer, and had no new criminal convictions before the trial court." She further asserts that the "goals of probation are to assist formerly incarcerated citizens in re-entering their communities successfully, and safely." Finally, appellant argues that the trial court "abused its discretion because it did not properly weigh the mitigating factors before it regarding [Boggs's] ongoing treatment, and periods of sobriety."
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). "When a defendant fails to comply with the terms and conditions of a suspended sentence, the trial court has the power to revoke the suspension of the sentence in whole or in part." Alsberry v. Commonwealth, 39 Va.App. 314, 320 (2002). While "[t]he cause deemed by the court to be sufficient for revoking a suspension must be a reasonable cause[, ]" this determination is subject to an abuse-of-discretion standard. Id. (quoting Hamilton v. Commonwealth, 217 Va. 325, 327 (1976)).
It is also "within the trial court's purview to weigh any mitigating factors presented by the defendant" in opposition to revocation of suspension of a sentence. Keselica v. Commonwealth, 34 Va.App. 31, 36 (2000). In our abuse-of-discretion analysis, we presume a trial court "considered the relevant factors without giving significant weight to any irrelevant improper factor" when a party argues the relevant factors to the court. See Manchester Oaks Homeowners Ass'n v. Batt, 284 Va. 409, 430 (2012). However, a trial court abuses its discretion when it "arbitrarily or without justification discredit[s] evidence which is uncontradicted and not inconsistent with other evidence in the case." Bolden v. Commonwealth, 263 Va. 465, 472 n.3 (2002) (quoting Chesson v. Commonwealth, 216 Va. 827, 832 (1976)).
Boggs admitted that she violated the terms of her suspended sentence. Thus, the record establishes that the trial court had a sufficient and reasonable cause to revoke Boggs's suspended sentence. Under the operative terms of the revocation statute in effect when the trial court considered Boggs's violation, once it found that Boggs had violated the terms of the suspension, the trial court was obligated to revoke the suspended sentence...
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