Gerard Bunn v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, White and Retired Judge Frank*
UNPUBLISHED
GERARD BUNN
MEMORANDUM OPINION**
v. Record No. 1343-22-1 PER CURIAM
JUNE 6, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Stephen J. Telfeyan, Judge
(Brett P. Blobaum, Senior Appellate Attorney; Virginia Indigent
Defense Commission, on briefs), for appellant.
(Jason S. Miyares, Attorney General; Susan Hallie Hovey-Murray,
Assistant Attorney General, on brief), for appellee.
Gerard Bunn appeals the circuit court’s judgment revoking his previously suspended
sentence and imposing one year of active incarceration for the fifth revocation of a previously
suspended sentence. Bunn argues that the circuit court abused its discretion by failing to
conscientiously weigh the mitigating circumstances he presented against his violation conduct
and record. 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).
*
Retired Judge Frank took part in the consideration of this case by designation pursuant
to Code § 17.1-400(D).
**
This opinion is not designated for publication. See Code § 17.1-413.
BACKGROUND
In December 2001, the circuit court convicted Bunn for operating a motor vehicle after
being declared a habitual offender, second or subsequent offense. The circuit court sentenced Bunn
to five years’ incarceration with two years and seven months suspended, conditioned on his good
behavior and indeterminate supervised probation. Bunn’s previously suspended sentence was
revoked and resuspended in 2007, 2011, and 2015, and revoked and resuspended, in part, in 2019.
Bunn finished his term of active incarceration and returned to supervised probation in March 2020.
At this point, Bunn had a two-year suspended sentence remaining on the habitual offender
conviction (date of offense being August 4, 2001).
In October 2021, Bunn’s probation officer reported that Bunn had repeatedly failed to report
as instructed, failed to provide COVID-19 or medical documentation for his missed appointments,
and recently tested positive for fentanyl. The circuit court issued a capias on October 20, 2021,
which was served on Bunn on July 28, 2022.
On August 4, 2022, Bunn was released on a secured bond. The bond order instructed that
Bunn’s probation officer would issue a PB-151 if Bunn failed to report to the probation officer,
tested positive for drugs, or failed to report for his drug screens. By addenda, Bunn’s probation
officer reported that Bunn tested positive for fentanyl and methadone on August 10, 2022. Bunn
reported to his weekly drug screen on August 24, 2022, however, he left the premises before his
probation officer could serve the PB-15.
At the revocation hearing, Crystal Bonneville, Bunn’s probation officer, testified that Bunn
began supervised probation on March 20, 2020, and he “appeared to be adjusting well.” Bunn had
maintained monthly telephone contact because of COVID-19 restrictions. Bonneville assumed
Bunn’s supervision on September 9, 2020, and instructed Bunn to report to the probation office on
1
A PB-15 is a document permitting a probation officer to take an individual into custody.
-2-
October 26, 2020. On that date, however, Bunn failed to report, claiming that he had had a possible
COVID-19 exposure. Bonneville instructed Bunn to “get tested, submit documentation.” Bunn
failed to submit any medical documentation.
Bunn maintained monthly telephone contact with Bonneville, contending that he could not
report to the probation office because he was ill, “possibly exposed to COVID, and was receiving
medical attention.” On May 19, 2021, Bunn submitted documentation that “indicated he needed to
isolate for 10 days.” Bunn did not report to the probation office, however, until July 21, 2021.
During that visit, he tested positive for fentanyl. Although Bunn attributed the positive test to a
tetanus shot he received when he suffered a leg injury, he failed to submit documentation of the
vaccine or the purported injury. Bunn then failed to report for two subsequent appointments.
Bonneville continuously instructed Bunn to submit medical documentation but Bunn failed to do so.
Bunn tested positive for drugs twice after his release on bond.
Bunn testified that he was employed as an electrician—a skill he had learned while he was
incarcerated. In 2009, Bunn had suffered a broken back and was prescribed Oxycontin, Percocet,
and hydrocodone, following which he became addicted to opiates. Bunn acknowledged his
addiction and that he needed treatment. He claimed that he had unsuccessfully tried to obtain
treatment through probation in 2019. Bunn explained that he did not provide medical
documentation to Bonneville because he was hospitalized. In addition, Bunn failed to bring his
medical records to court because he did not “think [he] needed them.” Bunn agreed that he went to
his probation appointment on August 24, 2022, but testified that he received a telephone call
indicating “something” was wrong with his 84-year-old mother, so he “took right off.” Bunn
testified that his fiancée supported him. The circuit court found Bunn had violated the terms and
conditions of his previously suspended sentence.
-3-
The Commonwealth asked the circuit court to impose a sentence within the guidelines and
release Bunn from probation. The Commonwealth was concerned with Bunn’s behavior while on
probation because, in the Commonwealth’s view, Bunn had “made it clear” that he was not willing
to cooperate with probation when he failed to attend scheduled appointments or provide the
necessary documentation “that could have excused some of his absences.”
Bunn asked the circuit court to give him another opportunity to succeed on probation and
receive treatment for his addiction. Bunn stressed that the pain medication the doctors prescribed
for his back injury caused his addiction. Bunn wanted to go home, return to work, and receive the
treatment he needed.
In allocution, Bunn stated that he originally was convicted on a driving charge and was sent
“to prison all these years for nothing.” He had never received substance abuse treatment and was
willing to do “anything” the court wanted him to do. The circuit court acknowledged Bunn’s
addiction and his plea for treatment. The circuit court found that Bunn had clearly avoided his
probation officer’s efforts to assist him and had a “history of violations for many of the same
offenses.” The circuit court revoked Bunn’s previously suspended two-year sentence and
resuspended one year. Bunn appeals, arguing that the circuit court abused its discretion when it
imposed a one-year active sentence because it failed to give proper weight to his mitigating
evidence.2
ANALYSIS
“On appeal, ‘[w]e “view the evidence received at [a] revocation hearing in the light most
favorable to the Commonwealth, as the prevailing party, including all reasonable and legitimate
2
Bunn further argues that the circuit court failed to consider that his original offense was
based on a habitual offender statute which has since been repealed by the General Assembly. Bunn
did not raise this contention to the circuit court, however, so we do not consider it on appeal. See
Rule 5A:18.
-4-
inferences that may properly be drawn from it.”’” Green v. Commonwealth, 75 Va. App. 69, 76
(2022) (alterations in original) (quoting Johnson v. Commonwealth, 296 Va. 266, 274 (2018)).
“[T]he trial court’s ‘findings of fact and judgment will not be reversed unless there is a clear
showing of abuse of discretion.’” Id. (quoting Jacobs v. Commonwealth, 61 Va. App. 529, 535
(2013)).
After suspending a sentence, a circuit 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). Moreover, once it found that Bunn
had violated the terms of the suspension, the circuit court was authorized to “revoke the
suspension and impose a sentence in accordance with the provisions of § 19.2-306.1.” Code
§ 19.2-306(C). Under the express provisions of Code § 19.2-306.1(C), “[t]he court may impose
whatever sentence might have been originally imposed for a third or subsequent technical
violation.”
In his opening brief, Bunn does not contest that he violated the conditions of his
suspended sentence by testing positive for drugs and failing to report to his probation officer.
Instead, he argues that the circuit court abused its discretion by failing “to weigh[] the mitigating
circumstances” he presented “against his violation conduct and record.” Citing several
unpublished cases, Bunn stresses that he did not return before the circuit court with new
convictions. Instead, he contends that his “conduct was limited” to testing positive for drugs and
failing to report to his probation officer.
In fashioning Bunn’s sentence, it was within the circuit court’s purview to weigh any
mitigating factors he presented, including his employment status, his willingness to obtain substance
abuse treatment, and his family support. See Keselica v. Commonwealth, 34 Va. App. 31, 36
(2000). The record demonstrates that the circuit court considered the mitigating evidence Bunn
-5-
presented. Balanced against those circumstances, however, was Bunn’s continuous disregard for
the circuit court’s orders and the rules of probation, resulting in five total revocations. Moreover,
although the circuit court revoked his previously suspended sentence, it resuspended one year. That
ruling reflects the circuit court’s careful balancing of the evidence and circumstances in this case,
including its finding that Bunn avoided the efforts by probation officers to assist him.
“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). Bunn’s continued disregard of the terms of his suspended sentence supports the circuit
court’s finding that some active incarceration was appropriate. “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)). Bunn failed to
make productive use of the grace that was repeatedly extended to him.
“For probation to have a deterrent effect on recidivism, real consequences must follow a
probationer’s willful violation of the conditions of probation.” Price, 51 Va. App. at 449. Upon
review of the record in this case, we conclude that the sentence the circuit court imposed
represents such real consequences and was a proper exercise of judicial discretion. See Alsberry
v. Commonwealth, 39 Va. App. 314, 321-22 (2002) (finding 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
Finding no abuse of the circuit court’s sentencing discretion, its judgment is affirmed.
Affirmed.
-6-