William Columbus Broughton v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
Present: Judges O’Brien, Ortiz and Senior Judge Haley
UNPUBLISHED
WILLIAM COLUMBUS BROUGHTON
MEMORANDUM OPINION*
v. Record No. 1732-22-1 PER CURIAM
JULY 18, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Robert B. Rigney, Judge
(J. Barry McCracken, Assistant Public Defender, on brief), for
appellant. Appellant submitting on brief.
(Jason S. Miyares, Attorney General; Lucille Wall, Assistant
Attorney General, on brief), for appellee.
Upon his guilty pleas, the trial court convicted William Columbus Broughton of two counts
of credit card theft. The trial court revoked Broughton’s previously suspended sentences based on
the new convictions. The trial court sentenced Broughton to a total of 24 months of incarceration
with 12 months suspended for the new convictions. The court also revoked 6 years and 33 months
of Broughton’s previously suspended sentences and ordered him to serve them in their entirety. On
appeal, Broughton argues that the trial court abused its discretion by imposing the entirety of his
sentences. 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 trial court’s judgment.
*
This opinion is not designated for publication. See Code § 17.1-413(A).
BACKGROUND1
In 2015, the trial court convicted Broughton of five counts of credit card theft, two counts of
credit card forgery, and grand larceny of a motor vehicle and suspended a large portion of his
sentences. In 2021, the trial court found Broughton in violation of his probation after he incurred
new convictions in Virginia Beach for credit card theft and in Norfolk for credit card fraud. The
trial court revoked Broughton’s suspended sentences and resuspended all but nine months.
Broughton was released in December 2021 but was again arrested in January 2022 and charged with
17 counts of credit card theft. His probation officer’s major violation report alleged several
violations, including the new criminal charges, failing to contact the officer, and absconding.
As part of his guilty plea, Broughton admitted that in January 2022, he stole a credit card
from the library at Old Dominion University. He used the card to purchase gift cards. Broughton
further admitted that he had received credit cards from a “credit card ring” after meeting members
of the ring on campus. Surveillance footage showed Broughton on campus “around the areas where
the credit cards were stolen.”
The plea agreement called for a maximum sentence on the new convictions for a total of
three years of incarceration. Broughton also admitted to eight probation violations from his 2015
convictions. He acknowledged that he understood that the three-year cap did not include the
probation violations and that the trial court could impose his suspended time.
At the combined sentencing and revocation hearing, Broughton testified about his problems
with substance abuse and his troubled childhood. Broughton’s counsel conceded that “the system
1
“In accordance with familiar principles of appellate review, the facts will be stated in
the light most favorable to the Commonwealth, the prevailing party at trial.” Gerald v.
Commonwealth, 295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381
(2016)). In doing so, we discard any of Broughton’s conflicting evidence and regard as true all
credible evidence favorable to the Commonwealth and all inferences that may reasonably be
drawn from that evidence. Id. at 473.
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already tried absolutely everything with Mr. Broughton.” Based on Broughton’s extensive record
and repeated violations, the trial court was “not inclined” to allow Broughton to enroll in the
Community Corrections Alternative Program (CCAP) or the Real Life program. The court
emphasized that Broughton committed his first new offense within weeks of being released from
prison following his previous violation. The trial court concluded that Broughton’s “long atrocious
record” and repeated violations justified the revocation of his remaining suspended sentences of 6
years and 33 months, and ordered him to serve them. For the 2022 convictions, the trial court
sentenced Broughton to 24 months with 12 months suspended. Broughton appeals.
ANALYSIS
Broughton does not challenge his sentence arising out of the new offenses, but asserts the
time imposed for his probation violations on top of his new offenses “was excessive and an abuse of
discretion.”
“The determination of sentencing lies within the sound discretion of the trial court. A
sentencing decision will not be reversed unless the trial court abused its discretion.” Garibaldi v.
Commonwealth, 71 Va. App. 64, 67 (2019) (quoting Martin v. Commonwealth, 274 Va. 733, 735
(2007)). “If a sentence imposed is within the statutory limits fixed by the legislature, the
assumption is that the sentence will not be disturbed on appeal.” Bassett v. Commonwealth, 13
Va. App. 580, 582 (1992). This is the extent of our substantive sentencing review “[a]bsent an
alleged statutory or constitutional violation.” Taylor v. Commonwealth, 77 Va. App. 149, 177
(2023) (alteration in original) (citing Minh Duy Du v. Commonwealth, 292 Va. 555, 563 (2016)).
Generally, 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). “In
revocation appeals, the trial court’s ‘findings of fact and judgment will not be reversed unless
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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)). “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).2 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, . . . then the
court may revoke the suspension and impose or resuspend any or all of that period previously
suspended.” Code § 19.2-306.1(B). The trial court is permitted—but not required—to
resuspend all or part of the sentence. Alsberry v. Commonwealth, 39 Va. App. 314, 320 (2002).
It is within the trial court’s purview to weigh any mitigating factors presented to the trial
court. Keselica v. Commonwealth, 34 Va. App. 31, 36 (2000). We therefore will not disturb the
trial court’s judgment based on its assessment of Broughton’s mitigating evidence. Moreover,
Broughton’s repeated probation violations were a relevant factor for the trial court to consider.
Broughton does not contend that the trial court lacked sufficient cause to revoke his
suspended sentences; indeed, he stipulated that he had violated the terms of the suspended
sentences. Rather, he argues only that the trial court should have given more weight to his
mitigation evidence. The record demonstrates that Broughton incurred new criminal convictions
during the suspension period. Thus, it was within the trial court’s discretion to “impose or
resuspend any or all” of the previously-suspended sentences. Code § 19.2-306.1(B).
Here, balanced against Broughton’s mitigating evidence were significant factors in
aggravation. The trial court emphasized Broughton’s “atrocious” criminal history and his
multiple probation violations. The trial court balanced Broughton’s mitigation evidence against
2
Code § 19.2-306(C) was amended effective July 1, 2021, and no longer requires the trial
court to revoke the sentence. 2021 Va. Acts Spec. Sess. I ch. 538.
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the other evidence and determined imposing the entirety of his suspended time in addition to the
12-month active sentence for the new offenses was appropriate. “Barring clear evidence to the
contrary, this Court will not presume that a trial court purposefully ignored mitigating factors in
blind pursuit of a harsh sentence.” Bassett, 13 Va. App. at 584.
“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). Broughton’s repeated disregard of the terms of his suspended sentences 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)). Broughton failed to make
productive use of the grace that had been extended to him and continued to engage in criminal
conduct during the probation period.
We hold that the sentence the trial court imposed represents a proper exercise of its
sentencing discretion. See Alsberry, 39 Va. App. at 321-22 (finding that the court did not abuse
its discretion by imposing the defendant’s previously suspended sentence in its entirety “in light
of the grievous nature of [the defendant’s] offenses and his continuing criminal activity”).
CONCLUSION
The trial court had sufficient cause to revoke Broughton’s probation and was within its
discretion to reimpose the balance of Broughton’s suspended time. The court considered
Broughton’s mitigating and enhancing factors in making its determination and reimposed his initial
sentences. For the foregoing reasons, the trial court’s decision is affirmed.
Affirmed.
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