Virginia Lawyers Weekly VA Lawyers Weekly
The trial court did not abuse its discretion when it revoked appellant’s suspended sentences and imposed an active term of incarceration.
Repeat offender
“[T]he trial court revoked seven years of Walters’ previously suspended sentences, re-suspended five years, and placed him on supervised probation.
“Under the revocation statute in effect when Walters’ revocation proceeding began, once the trial court found that he had violated the terms of the suspension, it was obligated to revoke the suspended sentences and they were in ‘full force and effect.’ …
“The trial court was permitted – but not required – to re-suspend all or part of the sentence. … In making that determination, it was within the trial court’s purview to weigh any mitigating evidence Walters presented. …
“Here, the evidence established that Walters had an extensive criminal history replete with felony theft offenses and ‘countless misdemeanors.’ Despite receiving only one year of active incarceration for his previous convictions for obtaining money by false pretenses and uttering a worthless check in 2011, Walters incurred yet another criminal conviction by ‘doing the same thing that [he was] convicted for before.’ …
“Furthermore, we find no merit in Walters’ contention that the sentence imposed was disproportionate to the nature of the violation. This Court declines to engage in a proportionality review in cases that do not involve life sentences without the possibility of parole.”
Where to serve time
“Walters’ contention that the trial court erred in ‘ruling that it lacked the authority to authorize the Sheriff to allow [him] to serve his time in Henrico,’ is meritless and without evidentiary support.
“Contrary to Walters’ assertion on brief, the trial court never ruled that it lacked any such authority. Rather, the court merely denied Walters’ request to order the Sheriff to house him at Henrico County Jail while he served his sentence, deferring to the Sheriff’s judgment concerning Walters’ confinement.”
Non-prejudicial letter
“Walters also argues that the trial court erred in admitting the ‘inherently inflammatory and prejudicial letter’ from the Lancaster County Commonwealth’s Attorney at the sentencing hearing.
“Walters contends that ‘much of [the letter] consisted of irrelevant information,’ which was ‘prejudicial and offering an opinion on the ultimate issue’ of Walters’ ‘propensity to commit a certain type of crime and the need for punishment.’ We disagree. …
“[T]he sole basis for revoking Walters’ suspended sentence was the new criminal conviction. The challenged letter contained a summary of the facts underlying the new conviction. Accordingly, the letter was relevant and admissible to inform the trial court’s decision in fashioning an appropriate sentence. …
“Further, the record demonstrates that the trial court admitted the letter solely to consider the facts underlying the new conviction, not the Lancaster County Commonwealth’s Attorney’s ‘editorialization.’ In a bench trial, ‘the trial judge is presumed to disregard prejudicial or inadmissible evidence, and this presumption will control in the absence of clear evidence to the contrary.’ …
“[T]he trial court explicitly stated that it could ‘parcel out’ the information that was ‘relevant to’ the revocation proceeding. Furthermore, the court granted Walters’ request to disregard the letter’s ‘editorializations,’ stating it routinely disregarded inadmissible information.
“Thus, no ‘affirmative evidence’ undermines the presumption that the trial court ‘disregard[ed]’ the allegedly ‘prejudicial or inadmissible’ portions of the letter.”
Affirmed.
Walters v. Commonwealth, Record No. 0038-22-2, Aug. 23, 2022. CAV (Clements Jr.) From the Circuit Court of Chesterfield County (Brice). M.G. Henkle for appellant. Jason D. Reed, Jason S. Miyares for appellee. VLW 022-7-353, 11 pp.
