Walters v. Commonwealth
| Decision Date | 23 August 2022 |
| Docket Number | 0038-22-2 |
| Parties | PEARLY E. WALTERS v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
UNPUBLISHED OPINION
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Lynn S. Brice, Judge
(M.G Henkle; Henkle Law Firm, on brief), for appellant. Appellant submitting on brief.
Jason D. Reed, Assistant Attorney General (Jason S. Miyares Attorney General, on brief), for appellee.
Present: Judges Humphreys, Causey and Senior Judge Clements Argued at Richmond, Virginia
The Circuit Court of Chesterfield County ("trial court") revoked seven and re-suspended five years of Pearly E. Walter's previously suspended sentences for obtaining money by false pretenses and uttering a worthless check. On appeal, Walters contends that the trial court abused its discretion by imposing two years of active incarceration and ruling that it lacked authority to instruct the Sheriff to allow him to serve his sentence in the Henrico County Jail. Walters also argues that the trial court erred in admitting or considering certain evidence at sentencing. For the following reasons, we affirm the trial court's judgment.
"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.
In July 2011, the trial court convicted Walters of felony obtaining money by false pretenses and uttering a worthless check. The court sentenced him to a total of eight years' incarceration with all but one year suspended conditioned upon good behavior.
On May 22, 2020, the Circuit Court of Lancaster County convicted Walters of felony credit card theft. The Lancaster County Commonwealth's Attorney advised the Commonwealth's Attorney for Chesterfield County of the new conviction by letter, including the former's opinion that Walters "is a career thief with 19 convictions of fraud and larceny in the last twenty years" and in Lancaster County, Walters "pretended to be a minister helping an intellectually challenged man while using the man's debit card to make over $6,000.00 in fraudulent transactions." On June 29, 2020, the trial court issued a capias for Walters' arrest.
At a revocation hearing on September 1, 2021, Walters conceded the violation, and the Commonwealth introduced a certified copy of the conviction order from Lancaster County. Accordingly the trial court found Walters "in violation" of the terms and conditions of his previously suspended sentences. The Commonwealth sought to introduce a copy of the May 29 letter from the Lancaster County Commonwealth's Attorney, "solely" for the court to "have some flavor" of the facts underlying the new conviction. Defense counsel objected, arguing that "there's a lot of editorial comments stated in the letter, and I don't think it's appropriate for the [c]ourt to consider." He clarified, "I don't object to the [c]ourt considering the fact that [Walters] got convicted of new offenses in Lancaster," but objected that, "normally evidence comes in from a Probation Officer" whereas "[t]his is coming in from the elected Commonwealth Attorney in another jurisdiction who is upset that [Walters] didn't get enough time in that jurisdiction." In response, the court stated its confidence that it could "parcel out what's relevant to this hearing." The Commonwealth argued that the trial court had "the right to know some of the facts underlying the new conviction" and asked it to consider only "that portion of the letter . . ., not the editorialization." The court overruled Walters' objection and found that "the sum of this letter tells me there is a conviction," concluding that the underlying facts were "relevant for sentencing whether or not [he was] in violation."
Walters introduced several documents in mitigation. Records from the Virginia Department of Corrections reflected that he had an outstanding active sentence in Henrico County of four years and twelve months. In an order dated September 22, 2020, the Circuit Court of Henrico County found Walters eligible to serve that sentence through that jurisdiction's "Work Release program" and did "not object" to his participation in the "ORBIT program" with the Henrico County Sheriff's approval.[1] A letter from Henrico Area Mental Health & Developmental Services indicated that Walters recently "completed Phase III of Henrico County Jail's R.I.S.E. (Recovery In a Secure Environment) program," which Walters explained was "a prerequisite" to participate in the ORBIT program. Finally, defense counsel introduced a document purporting to be the "Articles of Organization of Harborview Cleaners LLC" and proffered that Walters intended to "go back in the dry cleaning business" upon release from custody.
During argument, defense counsel acknowledged Walters' criminal record and argued that the court should "disregard a great deal" of the "editorialization" contained in the letter from the Lancaster County Commonwealth's Attorney. The trial court interjected, Defense counsel asked the trial court "not to handicap [Walters'] ability to pursue the plan that he already had in place." He asked the trial court to "consider running [any active sentence] concurrent" with Walters' existing sentence or "allowing him to serve that time in the Henrico County Jail System." Counsel concluded, "I don't think it's necessary for the [c]ourt to put [Walters] on supervised probation upon release" because he "wasn't on supervised probation at the time" of the violation.
The Commonwealth noted Walters' significant "criminal history," including "20 felony convictions" comprised "almost entirely of [offenses of] a larceny or a fraudulent-type nature." Given his "criminal history and the nature of the new charges," the Commonwealth argued that "a substantial period of incarceration should be imposed."
At allocution, Walters stated that "this [was his] first time here after nine years to come back to court for anything." He accepted responsibility for his misconduct and said that he had since "learned a lot" and obtained "a lot of tools" while incarcerated. Walters described his history of incarceration and reform, stating that when his life "became unmanageable," he sought counseling services through Northern Neck Middle Peninsula Community Service Board "to work on [his] behavior." He acknowledged that there was a time when he was "out of control" but claimed, "that's not in [his] life anymore." Asserting that incarceration is "not just [about] punishment," Walters maintained that he had obtained "more tools" and resolved "to do better" each time he had been imprisoned. This time, he "recognize[d]" his wrong and was committed to "stay[ing] in the program" to avoid recidivism.
Before imposing sentence, the trial court found that Walters had "a 20-year history of stealing and fraud and forgery and perjury and probation violation[s], and 20 felony convictions for that type of behavior and countless misdemeanors, including this charge." The trial court found Walters' pattern of committing the same offenses to be "very egregious." Accordingly, the trial court revoked seven years of Walters' previously suspended sentences, re-suspended five years, and placed him on supervised probation.
Immediately following the trial court's imposition of sentence, defense counsel asked the court to "consider authorizing" that Walters "serve the time in Henrico if they agree to accept him." The trial court denied the request, stating, Defense counsel responded that he was "not suggesting" that the trial court "tell [the Sheriff] where to put [Walters]," but was requesting that the "[c]ourt authorize that if the two Sheriffs agree." Again, the court demurred, stating, "No. He's with the Sheriff." Walters appeals.
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). Walters does not contend that the trial court did not have sufficient cause to revoke his suspended sentences. Rather, he asserts that the trial court abused its discretion by imposing two years of active incarceration. He maintains that his sentence was not "proportional" to his violations and "arbitrary and unreasonable" given "the punishment and rehabilitative programs [he] had already completed in other jurisdictions." Further, Walters argues that the trial court erred in "ruling that it lacked the authority to authorize the Sheriff to allow [him] to serve his time in Henrico." We disagree.
Under the revocation statute in effect when Walters' revocation proceeding began, once the trial court found that he had violated the terms of the suspension, it was obligated to revoke the suspended sentences and they were in "full force and effect." Code § 19.2-306(C)(ii).[2] The trial court was permitted-but not required-to re-suspend all or part of the sentence. Id.; Alsberry v. Commonwealth, 39 Va.App. 314, 320 (2002). In making that determination, it was within the trial court's purview to weigh any mitigating evidence Walters presented. Keselica v. Commonwealth, 34 Va.App. 31, 36 (2000).
Here the evidence established that Walters had an extensive criminal history replete...
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