Spencer v. Commonwealth
| Decision Date | 27 September 2022 |
| Docket Number | 1069-21-3 |
| Parties | NEIL ANTHONY SPENCER v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE J. Christopher Clemens, Judge
(J Thomas Love, Jr., Senior Assistant Public Defender, on brief), for appellant. Appellant submitting on brief.
(Jason S. Miyares, Attorney General; Matthew P. Dullaghan, Senior Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.
Present: Chaney, Callins Judges and Petty Senior Judge.
Neil Anthony Spencer ("Spencer") appeals the judgment of the Circuit Court of the City of Roanoke ("circuit court") revoking his previously suspended sentence and imposing an active ten-year sentence.[1] He asserts that the circuit court abused its discretion by failing to properly consider the mitigating circumstances related to his old age and serious health problems. After examining the briefs and the record, we unanimously hold that oral argument is unnecessary because the appeal is wholly without merit. See Code § 17.1-403(ii)(a); Rule 5A:27(a). For the following reasons, this Court affirms the circuit court's judgment.
In May 2001, Spencer was convicted of second-degree murder and, in September 2001, sentenced to twenty-five years' incarceration, consecutive to all other sentences. The circuit court suspended thirteen years of that sentence conditioned on Spencer's successful completion of ten years of supervised probation. Spencer served his term of active incarceration and began supervised probation in November 2018. In July 2020, Spencer was involved in an automobile accident that resulted in new convictions for involuntary manslaughter and driving while intoxicated ("DWI"). Based on those convictions, Spencer's probation officer filed a major violation report.
At the revocation hearing, Spencer conceded that he had entered Alford pleas to the manslaughter and DWI charges and that he was under the influence of methamphetamine when the automobile accident occurred. He did not dispute that he had violated the terms of his suspended sentence but asked the circuit court to show him "mercy." He asked the circuit court to fashion a sentence accounting for his advanced age and need for medical treatments due to injuries he suffered during the automobile accident. After considering the evidence and argument by counsel, the circuit court found Spencer in violation of the conditions of his probation and revoked ten years of his previously suspended sentence. This appeal followed.
"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.
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). After revoking a suspended sentence, a trial court is permitted-but not required-to re-suspend all or part of the sentence. Code § 19.2-306(C)(ii) (Cum. Supp. 2020); Alsberry v Commonwealth, 39 Va.App. 314, 320 (2002).
Spencer does not dispute that the circuit court had sufficient cause to find him in violation of the conditions of his suspended sentence. Instead, he maintains that the sentence the circuit court imposed was excessive. Spencer argues that the circuit court failed to place sufficient weight on mitigating circumstances such as his advanced age and poor health before imposing sentence. He emphasizes that he was nearly sixty-five years old when the circuit court revoked his sentence. As for his health, Spencer stresses that he had undergone ten hip surgeries, developed MRSA as a result of a hip replacement, and requires yet another hip replacement to address "significant pain" associated with standing or walking. Spencer asserts that pain medications other than ibuprofen and Tylenol are unavailable to him while he is incarcerated, and his physician will not perform any additional surgeries while he is incarcerated. Further, although he concedes that he "accepted a plea agreement" to involuntary manslaughter, he maintains that he did so "to avoid the possibility of a more severe sentence." Spencer contends that the circuit court should have imposed a more lenient sentence so he could receive the medical treatment needed to alleviate his pain.[2] While we acknowledge Spencer's age and health, this Court holds that the circuit court did not abuse its discretion.
The record establishes that Spencer voluntarily pleaded guilty to two new criminal offenses during the suspension period. Because these new crimes were in violation of the conditions of Spencer's probation and suspended sentence, the circuit court did not err in revoking Spencer's suspended sentence. Subsequently, in deciding what part, if any, of that sentence to re-suspend, it was "within the trial court's purview to weigh any mitigating factors presented by [Spencer]," including his age and health issues. See Keselica v. Commonwealth, 34 Va.App. 31, 36 (2000).
Although the...
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