Johnny Earl Miller, III v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges AtLee, Friedman and Senior Judge Clements
JOHNNY EARL MILLER, III
MEMORANDUM OPINION*
v. Record No. 1993-22-2 PER CURIAM
JULY 25, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Joseph M. Teefey, Jr., Judge
(Walter B. Harris, Deputy Public Defender, on brief), for appellant.
Appellant submitting on brief.
(Jason S. Miyares, Attorney General; Rachel A. Glines, Assistant
Attorney General, on brief), for appellee.
Johnny Earl Miller, III, appeals the trial court’s order revoking his previously suspended
sentence and imposing one year, six months’ incarceration. Miller argues the trial court abused its
discretion by “failing to adequately consider” the mitigating circumstances he presented. He
further contends that, even if the trial court adequately considered his mitigating evidence, it
failed to give appropriate weight to his mitigating evidence and, thus, its decision was “guided”
by an “arbitrary reaction.” 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).
BACKGROUND
In February 2009, the trial court convicted Miller of robbery and, in May 2009, sentenced
him to 50 years’ imprisonment with 43 years suspended, conditioned upon 50 years’ good
*
This opinion is not designated for publication. See Code § 17.1-413(A).
behavior and indefinite supervised probation. The trial court revoked Miller’s previously
suspended sentence and resuspended it, in part, in May 2022. Miller returned to supervised
probation on May 17, 2022.
In August 2022, Miller’s probation officer reported that Miller had incurred a new felony
conviction in Spotsylvania County. The trial court issued a capias, which was served on Miller in
September 2022.
At the revocation hearing, Miller conceded that he had violated the terms and conditions of
his previously suspended sentence. Miller advised the trial court that the statutory period for the
underlying conviction would run at the end of the following month, so he was close to “ending
probation” in Petersburg. In addition, he already had been incarcerated for approximately two years
between the earlier probation violation and the Spotsylvania charge. Miller had been ordered to
complete five years’ supervised probation for the Spotsylvania conviction. Finally, he proffered
that he remained under the good behavior condition of the instant suspended sentence. For these
reasons, Miller asked the trial court to revoke and resuspend his previously suspended sentence.
After hearing argument and reviewing the revocation sentencing guidelines,1 the trial court found
that Miller had violated the terms of his suspended sentence. It revoked Miller’s previously
suspended sentence, resuspending “all but a year and a half.” Miller appeals.
ANALYSIS
Subject to the provisions of Code § 19.2-306.2, 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
1
The discretionary revocation sentencing guidelines recommended a sentence between
six months and one year, six months’ incarceration.
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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.Miller contends that the trial court failed to give “sufficient weight” to his mitigating
evidence when it sentenced him to one year, six months’ incarceration. Miller does not contest
that he violated the terms and conditions of his previously suspended sentence. He argues only
that the trial court “made no indication of what factors” it considered and, thus, he concludes that
its decision was “guided not by calculated reasoning but by arbitrary reaction.” We disagree.
We begin by noting that, “[a]bsent a statutory requirement to do so, ‘a trial court is not
required to give findings of fact and conclusions of law.’” Bowman v. Commonwealth, 290 Va.
492, 500 n.8 (2015) (quoting Fitzgerald v. Commonwealth, 223 Va. 615, 627 (1982)). “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 court finds the basis of a violation of the terms and
conditions of a suspended sentence or probation 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 question of an appropriate sentence “is a matter that lies within the
trial court’s sound discretion.” Rhodes v. Commonwealth, 45 Va. App. 645, 650 (2005) (citing
Slayton v. Commonwealth, 185 Va. 357, 365 (1946)); Code § 19.2-306.1(B).
The record reflects that Miller suffered a new conviction during the suspension period.
Thus, the trial court was authorized to “revoke the suspension and impose or resuspend any or all
of that period previously suspended.” Code § 19.2-306.1(B). Furthermore, this was Miller’s
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second revocation proceeding. “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). Considering Miller’s new felony conviction during the
suspension period, the trial court reasonably could have concluded that active incarceration was
appropriate because Miller 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)). Miller failed to
make productive use of the grace that had been extended to him.
CONCLUSION
Finding no abuse of the trial court’s sentencing discretion, its judgment is affirmed.
Affirmed.
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