Virginia Lawyers Weekly VA Lawyers Weekly
Where appellant committed a series of probation violations, the trial court correctly revoked her suspended sentence and sentenced her under the probation agreement’s terms, leaving her with a one-year active sentence.
Background
After being charged with a drug crime, appellant Boggs and the commonwealth made a deferred disposition agreement. “The terms of the agreement required Boggs to submit to regular drug tests during two years of supervised probation and maintain good behavior for a period of five years.
“The agreement also provided that if Boggs violated the terms of her probation, the trial court would terminate her ‘first offender status’ and sentence her to three years’ incarceration with two years suspended.
Boggs violated the deferred disposition agreement. The court sentenced her according to the agreement. The court imposed a three-year sentence and suspended two years, leaving Boggs with a one-year active sentence.
Boggs served one year and was returned to supervised probation in March 2019. In January 2021, her probation officer filed a major violation report.
“The report detailed a series of violations beginning in October 2019 when Boggs tested positive for cocaine and marijuana. Then, Boggs repeatedly tested positive for numerous drugs, including amphetamine, cocaine, fentanyl, methadone, morphine, and marijuana.
“She also received summonses for reckless driving, driving without a license, and operating a vehicle without insurance.
“Boggs was instructed to begin substance abuse treatment, but after testing positive for drugs and missing her appointments, she was discharged from the program.
“In an addendum to the major violation report, the probation officer stated that Boggs declined in-patient treatment ‘due to her family.’”
On March 24, 2021, the court released Boggs on bond pending a hearing scheduled for May 4, 2021. On April 1, Boggs reported to probation and tested positive for drugs. “Boggs was admitted to outpatient treatment on April 19, 2021, and her probation officer confirmed that she was complying with the treatment program.”
At Boggs’ revocation hearing, counsel asked for a two-month continuance so she could continue her treatment. If the court denied the request, counsel asked for a one or two week continuance so counsel could gather information and review the sentencing guidelines with Boggs.
The court gave counsel “a week or two” for the sentencing guidelines review. Boggs then stipulated to violating her probation terms. The court found her in violation and set a sentencing date.
At the sentencing hearing, Boggs discussed mitigating circumstances, including her addiction to opioids, an overdose that was the basis of her underlying possession conviction and her recovery attempts. “Boggs emphasized that she ‘truly mean[t] it this time’ and that she wanted to seek help for her addiction to drugs.”
The court noted that shortly after she was released on bond, she continued to test positive for drugs. The court also noted that Boggs continued to use drugs despite the previous revocation.
The court revoked the suspended sentence and re-suspended one year, resulting in an active sentence of one year.
Discretion not abused
“Boggs argues that the trial court abused its discretion by sentencing her to ‘one year of active incarceration when she was engaged in treatment, had maintained contact with her probation officer, and had no new criminal convictions before the trial court.’ …
“[A]ppellant argues that the trial court ‘abused its discretion because it did not properly weigh the mitigating factors before it regarding [Boggs’s] ongoing treatment, and periods of sobriety.’…
“‘When a defendant fails to comply with the terms and conditions of a suspended sentence, the trial court has the power to revoke the suspension of the sentence in whole or in part.’ …
“It is also ‘within the trial court’s purview to weigh any mitigating factors presented by the defendant’ in opposition to revocation of suspension of a sentence.”
Boggs’ admission that she violated the terms of her suspended sentence shows “that the trial court had a sufficient and reasonable cause to revoke Boggs’s suspended sentence.
“Under the operative terms of the revocation statute in effect when the trial court considered Boggs’s violation, once it found that Boggs had violated the terms of the suspension, the trial court was obligated to revoke the suspended sentence and it was in ‘full force and effect.’ … The trial court was permitted – but not required – to resuspend all or part of the sentence.”
The trial court considered Boggs’ mitigating factors. “Against the mitigating factors Boggs cited, the record reflects that Boggs repeatedly disregarded the terms of her suspended sentence and continued to use illicit substances despite being afforded the opportunity for substance abuse treatment.
“The trial court could reasonably conclude that Boggs’s conduct demonstrated that she was not amenable to rehabilitation, even though she asserted she was now sincere about recovery.”
Affirmed.
Boggs v. Commonwealth, Record No. 0586-21-2, May 10, 2022. CAV (Ortiz) from the Circuit Court of Spotsylvania County (Rigual). Lauren Whitley for appellant. Jason S. Miyares for appellee. VLW 022-7-131, 8 pp. Unpublished opinion.
