Jeremy Wayne Luck v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Malveaux, Athey and Callins
JEREMY WAYNE LUCK
MEMORANDUM OPINION*
v. Record No. 0534-22-3 PER CURIAM
FEBRUARY 21, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Bruce D. Albertson, Judge
(David L. Parker; David L. Parker, P.C., on brief), for appellant.
Appellant submitting on brief.
(Jason S. Miyares, Attorney General; Ken J. Baldassari, Assistant
Attorney General, on brief), for appellee.
Jeremy Wayne Luck (“Luck”) appeals the order from the Circuit Court of Rockingham
County (“trial court”) revoking the remaining seven years of his previously suspended sentence.
Luck argues that the trial court abused its discretion by “revoking an amount of time that vastly
exceeded the recommended 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). We affirm the judgment of the trial court.
I. BACKGROUND
In December 2019, Luck entered an Alford1 plea to attempted malicious wounding of a
law enforcement officer under an agreed disposition with the Commonwealth. Consistent with
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
“An individual accused of crime may voluntarily, knowingly, and understandingly
consent to the imposition of a prison sentence even if he is unwilling or unable to admit his
participation in the acts constituting the crime.” North Carolina v. Alford, 400 U.S. 25, 37
the terms of the agreed disposition, the trial court sentenced Luck to eight years and six months’
imprisonment, with seven of those years suspended, conditioned upon the successful completion
of two years of supervised probation.
Luck was released from incarceration on January 13, 2021. He resided with his father in
New Kent County and complied with probation by reporting as directed and maintaining
employment. However, on July 17, 2021, Luck was arrested in New Kent County on two counts
of domestic assault and two counts of destruction of property arising out of an altercation with
his father. While incarcerated, Luck was charged with an additional ten counts of violating a
protective order. Subsequently, on October 6, 2021, the New Kent County Juvenile and
Domestic Relations District Court convicted Luck on one count of domestic assault, one count of
destruction of property, and two counts of violating a protective order; the remaining charges
being nolle prossed. Luck was sentenced to a total of forty-eight months in jail, with thirty-six
months suspended, conditioned upon one year of supervised probation.
Following Luck’s new convictions, his probation officer filed a major violation report
documenting the new convictions and requesting a show cause order. The trial court issued a
capias for his arrest, and, after several continuances, held a revocation hearing at which Luck
stipulated that he had violated the conditions of his suspended sentence. The trial court then
found Luck in violation of the terms of his suspended sentence.
While addressing the question of an appropriate sentence, the Commonwealth presented
evidence including copies of Luck’s conviction orders from New Kent County, his criminal
history which included a conviction for attempted malicious wounding of a law enforcement
(1970). Alford pleas allow “criminal defendants who wish to avoid the consequences of a trial to
plead guilty by conceding that the evidence is sufficient to convict them, while maintaining that
they did not participate in the acts constituting the crimes.” Carroll v. Commonwealth, 280 Va.
641, 644-45 (2010) (quoting Parson v. Carroll, 272 Va. 560, 565 (2006)).
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officer, and other previous convictions for credit card fraud, driving under the influence,
revocation of a suspended driver’s license, unauthorized use of a motor vehicle, assault, and
contempt of court.
Luck testified that he had complied with probation upon his release from prison in January
2021, was employed, had no positive drug screens, and had been living with his sixty-five-year-old
father. Luck acknowledged that he had disagreements over his father’s girlfriend, who used heroin
and crack cocaine, and expressed concern about the girlfriend using drugs in the house because it
violated his probation. He further testified that after learning that his father’s girlfriend was
pregnant, he reiterated his concern to his father about her drug use and how a possible overdose
would “look bad” for him. The two counts of domestic assault and two counts of destruction of
property arose out of an incident on July 16, 2021, in which Luck and his father started arguing and
“shoving” each other. During the altercation, Luck “knocked the tv off the dresser,” and “it broke.”
Luck’s father then called the police, who arrested Luck. Luck explained that he had then violated
the protective order against his father when Luck called his father from jail and asked him to
retrieve phone numbers from Luck’s cell phone. Luck also testified that upon his release from jail,
he did not intend to return to his father’s house, but instead, intended to obtain employment at
George’s Chicken and reside in Rockingham County. Finally, Luck apologized to the court for his
actions.
The Commonwealth argued for the trial court to deviate upward from the sentencing
guidelines. The guidelines recommended an active sentence up to six months in jail, but the
Commonwealth argued that because Luck was on probation for a “very serious and dangerous
crime” and had a “history of violence” that the guidelines were “woefully inadequate.”
Luck argued that the guidelines were “adequate” and asked to be sentenced within them
because he had been doing well on probation and he and his father had only been involved in “a
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scuffle” where “nobody was really hurt.” He also claimed that his violations of the protective order
arose from telephone calls from the jail to his father, not any physical confrontation or interaction.
Finally, Luck promised to “finish out his probation [in Rockingham County] peacefully and do
well.”
After considering the evidence and argument, the trial court determined that Luck had
violated the terms of his suspended sentence and had a “violent history.” The trial court found that
he violated his probation and that due to his “violent history” and the sentences entered for the
assault and battery against Luck’s father, that the incident was “not just a push.” The court then
revoked the balance of the previously suspended sentence and released him from further probation.2
Luck appealed.
II. ANALYSIS
A. Standard of Review
“On an appeal of a probation revocation, the trial court’s ‘findings of fact and judgment
will not be reversed unless there is a clear showing of abuse of discretion.’” Heart v.
Commonwealth, 75 Va. App. 453, 460 (2022) (quoting Green v. Commonwealth, 75 Va. App.
69, 76 (2022)). “The evidence is considered in the light most favorable to the Commonwealth,
as the prevailing party below.” Jacobs v. Commonwealth, 61 Va. App. 529, 535 (2013).
B. The trial court did not err in revoking Luck’s suspended sentence.
Luck argues that the trial court abused its discretion by “vastly exceed[ing]” the sentencing
guidelines and revoking his entire suspended sentence for a first probation violation based on
misdemeanor convictions. Luck asserts that the trial court “arbitrarily decided” that the guidelines
were not appropriate. He further contends that the sentence was “too harsh” considering the
circumstances. We disagree.
2
The trial court denied Luck’s pro se motion for reconsideration.
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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). “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). If the basis of the violation is that “the defendant was convicted of a criminal
offense that was committed after the date of the suspension,” the trial court “may revoke the
suspension and impose or resuspend any or all of that period previously suspended.”3 Code
§ 19.2-306.1(B).
The record demonstrates, and Luck acknowledged, that he had incurred new criminal
convictions during the suspension period; therefore, the trial court had sufficient cause to revoke his
suspended sentence. See Booker v. Commonwealth, 61 Va. App. 323, 338 (2012) (“A new
conviction certainly constitutes good cause to revoke the suspension of a previously imposed
sentence.”). It was equally within the trial court’s purview to weigh any mitigating factors Luck
presented, such as his continuous employment, lack of drug use, cooperation with his probation
officer, acceptance of responsibility for his actions, and lack of prior probation violations. 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
3
The General Assembly amended Code § 19.2-306(C) and codified Code § 19.2-306.1
effective July 1, 2021. 2021 Va. Acts Spec. Sess. I ch. 538. Those amendments apply because
Luck violated his probation after July 1, 2021, and the revocation proceedings began after July 1,
2021. Green, 75 Va. App. at 84 n.4. The parties agree that Luck was convicted of new criminal
offenses that he committed after the date of his suspension. Accordingly, Code § 19.2-306.1
permitted the trial court to impose up to the entirety of Luck’s suspended sentence.
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(2007). While on probation, Luck was convicted of multiple misdemeanor offenses arising from an
altercation with his sixty-five-year-old father. Luck’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)). Luck
failed to make productive use of the period of grace that had been extended to him and continued to
engage in criminal conduct during the suspension period.
Further, 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). The discretionary
guidelines recommended an active sentence up to six months in jail. During the revocation hearing,
the trial court found the guidelines “absolutely inappropriate” considering Luck’s “violent history”
and the circumstances of his recent convictions. The trial court explained in writing that it deviated
from the guidelines because Luck was a “[v]ery violent person.” The trial court noted that Luck’s
criminal history included convictions for attempted malicious assault of a law enforcement officer
and a prior domestic assault and battery in addition to the most recent assault of his father. The trial
court recited Luck’s other criminal convictions for assault, “dangerous DUIs,” fraud, and contempt.
The trial court found that the guidelines did not “take into account this history or the underlying
charge.” Considering the facts and circumstances of this case, we find that the trial court did not
abuse its discretion in revoking Luck’s suspended sentence.
III. CONCLUSION
For the foregoing reasons, the trial court’s judgment is affirmed.
Affirmed.
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