Austin E. Kersey v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges AtLee, Causey and Callins
AUSTIN E. KERSEY
MEMORANDUM OPINION*
v. Record No. 1065-22-1 PER CURIAM
JUNE 13, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Everett A. Martin, Jr., Judge
(J. Barry McCracken, Assistant Public Defender, on brief), for
appellant.
(Jason S. Miyares, Attorney General; Susan Hallie Hovey-Murray,
Assistant Attorney General, on brief), for appellee.
Austin E. Kersey appeals from the decision of the Circuit Court of the City of Norfolk
revoking a portion of his previously suspended sentence. Kersey contends that the trial court
abused its discretion by imposing a total of one year and four months’ incarceration because it
“focused on incapacitation” and failed to give proper weight to his mitigating evidence, including
his desire to overcome his drug addiction, his active sentence for his new misdemeanor offenses,
and his opportunity to receive inpatient therapeutic treatment. 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 decision of the trial
court.
*
This opinion is not designated for publication. See Code § 17.1-413.
BACKGROUND
“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
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)).
In September 2020, the trial court convicted Kersey of strangulation under a written plea
agreement. The court sentenced Kersey to five years’ imprisonment with four years and five
months suspended, conditioned upon good behavior and the successful completion of five years’
supervised probation. In addition, the trial court ordered Kersey to “have no contact” with the
victim. In May 2021, the trial court revoked and resuspended Kersey’s sentence, in part.
Kersey finished his term of active incarceration and began supervised probation in May
2021. In October 2021, Kersey’s probation officer reported that Kersey’s adjustment to supervised
probation was “poor” because Kersey had incurred new convictions for violation of protective
orders, destruction of property, and trespassing. In addition, he had incurred new charges for assault
and battery of a family member and misdemeanor failure to appear. The trial court issued a capias
on October 8, 2021, which was served on Kersey on January 9, 2022. In an addendum, Kersey’s
probation officer reported that Kersey had been convicted of assault and battery of a family
member.1 Kersey received a total of 20 months and 90 days of active incarceration for his new
convictions.
1
Kersey’s pending charge for misdemeanor failure to appear was dismissed. In addition,
other charges for assault and battery of a family member, strangulation, and abduction by force
were nolle prossed.
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At the revocation hearing, Kersey admitted that he had violated the terms and conditions of
his previously suspended sentence. Sarah Soyars testified that she was in a “romantic” relationship
with Kersey for “the past year or two.” Soyars contended that Kersey was a “good person who
made mistakes” and had had a “rough upbringing.” According to Soyars, Kersey was not
aggressive or violent except when he used drugs. Soyars had submitted an application to an
inpatient treatment facility where Kersey would receive the “foundation and tools he need[ed] to
succeed” in his drug addiction recovery. After Kersey completed the inpatient treatment, he would
be transferred to “sober living.”
Soyars acknowledged that she was the victim of Kersey’s most recent conviction for assault
and battery of a family member. She was also the recipient of the protective order that Kersey had
violated on three separate occasions. Soyars explained, however, that she had since had the
protective order dissolved.
Kersey proffered that he was raised in a “broken home” and, at 14 years old, started
smoking crack cocaine with his addicted mother. Kersey contended that he often maintained his
sobriety but, at other times, was “overcome by his addiction.” Kersey had completed a “jail-based”
substance abuse treatment program and wanted to “take his sobriety skills to the next level.” Kersey
acknowledged that he needed additional treatment but noted that he could not participate in an
inpatient substance abuse treatment program if he was incarcerated. Thus, Kersey asked the trial
court to impose a sentence that would allow him to attend inpatient therapy because the jail did not
offer any other programs that would help him.
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The Commonwealth asked the trial court to impose a sentence at the high end of the
sentencing guidelines.2 The Commonwealth argued that Kersey had been convicted in 2017 and
2018 for assault and battery against a different woman and he continued to assault women. The
Commonwealth acknowledged that Kersey was working toward sobriety but noted that this was
Kersey’s second probation violation and he had incurred “multiple” new misdemeanor convictions
that were similar to his underlying offenses.
In rebuttal, Kersey stressed that his substance abuse was the “root of [his] problem” and the
trial court could not “incarcerate someone into sobriety.” Kersey noted that when he was released
from incarceration, he would be in the “same position” that he was in now because he would not
receive the “benefit of inpatient rehab and sober living.” Kersey argued that rehabilitation and sober
living were his “best chance” to transition from an “institutionalized lifestyle and back into the
community.” In Kersey’s view, incarceration would prove a “disservice” to him and “these young
women” because incarceration did not address the “root cause of the problem.”
The trial court found appellant in violation of the terms and conditions of his probation,
noting that incarcerating Kersey would be “doing women somewhat a favor” by protecting them. In
allocution, Kersey stated that he was raised in a “domestic situation” and watched his mother suffer
physical abuse. As he grew older, Kersey claimed that he became a “body guard, a shield” for his
mother. When he was released from prison, Kersey was “on the right path” but, when his sister and
her child died, he fell into addiction. Kersey apologized for hurting the victims, stating that he felt
“bad” for his actions; he contended that he loved the victims. He acknowledged that he treated the
victims the same way he “grew up watching” his mother being treated. He stressed that he wanted
to “break the cycle” of abuse, “separat[e] from drugs,” and give himself a “chance.”
2
The discretionary sentencing guidelines recommended a sentencing range of three
months to one year imprisonment.
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Having found appellant in violation, the trial court revoked his previously suspended
sentence and resuspended three years. Thus, the trial court imposed a total of one year and four
months’ active incarceration. Kersey appeals.
ANALYSIS
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). “The court may again suspend all or any part of this sentence for a period up
to the statutory maximum period for which the defendant might originally have been sentenced to
be imprisoned, less any time already served, and may place the defendant upon terms and
conditions or probation.” Id.
Kersey does not contend that the trial court did not have sufficient cause to revoke his
suspended sentence. Indeed, he admitted that he was in violation. Rather, Kersey argues that the
trial court abused its sentencing discretion because it “focused on [his] incapacitation” and failed
to give proper weight to his mitigating evidence. He asserts that his addiction was the “primary
source” of his issues and the trial court should have tailored a sentence that allowed him to pursue
his desire to overcome his addiction through inpatient therapeutic treatment. He also argues that his
active incarceration on the new misdemeanor offenses was “adequate” and further incarceration was
unnecessary. Kersey concludes that a sentence that allowed him to receive treatment would have
benefited him and society by ensuring his “future compliance with social norms.”
Relevant to Kersey’s claim, Code § 19.2-306.1(B) provides that “[i]f the court finds the
basis of a violation of the terms and conditions of a suspended sentence or probation is that the
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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.” (Emphasis added). The record demonstrates that Kersey
suffered several 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 sentence.
Id.
It was equally within the trial court’s purview to weigh any mitigating factors Kersey
presented, such as his active sentence on his new convictions, addiction, and desire to receive
inpatient therapeutic treatment. See Keselica v. Commonwealth, 34 Va. App. 31, 36 (2000).
Balanced against that mitigating evidence, however, were significant facts in aggravation.
Indeed, Kersey incurred “several” new misdemeanor convictions of the same nature as his
underlying offense while on probation.
“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). Kersey’s convictions for new offenses support the trial court’s conclusion 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)). Kersey failed to make productive use of the grace
that had been extended to him and instead incurred new convictions “of the same nature” as his
underlying offense. Accordingly, we hold that the sentence the trial court imposed represents a
proper exercise of its sentencing 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
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suspended sentence in its entirety “in light of the grievous nature of [the defendant’s] . . . offenses
and his continuing criminal activity”).3
CONCLUSION
Finding no abuse of discretion, we affirm the trial court’s judgment.
Affirmed.
3
To the extent Kersey argues that his sentence was disproportionate to his probation
violation, it is well established that we will not engage in a proportionality review in cases that
do not involve life sentences without the possibility of parole. Cole v. Commonwealth, 58
Va. App. 642, 653-54 (2011). We noted in Cole that the Supreme Court of the United States
“has never found a non-life ‘sentence for a term of years within the limits authorized by statute
to be, by itself, a cruel and unusual punishment’ in violation of the Eighth Amendment.” Id. at
653 (quoting Hutto v. Davis, 454 U.S. 370, 372 (1982) (per curiam)); cf. Vasquez v.
Commonwealth, 291 Va. 232, 243 (2016) (rejecting Eighth Amendment challenge to 133-year
active sentence because the sentence was imposed for “eighteen separate crimes”).
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