COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Haley
Argued at Chesapeake, Virginia
ALVIN PARKINS, S/K/A
ALVIN PARKINS, III
MEMORANDUM OPINION* BY
v. Record No. 2695-05-1 JUDGE LARRY G. ELDER
OCTOBER 31, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Christopher W. Hutton, Judge
(Kimberly Enderson Hensley, Assistant Public Defender; Office of
the Public Defender, on brief), for appellant. Appellant submitting
on brief.
Josephine F. Whalen, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Alvin Parkins (appellant) appeals from an order revoking a portion of previously
suspended sentences for a robbery and attempted robbery convictions. On appeal, he concedes
he failed to comply with the terms of his supervised probation and used marijuana and that
“some punishment was warranted by his actions,” but he contends the court’s decision ordering
him to serve one year six months of his previously suspended sentences exceeded the sentencing
guidelines and was error.1 We hold the court’s reimposition of one year six months of
appellant’s previously suspended sentences was not an abuse of discretion, and we affirm.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Appellant also contended the trial court erred in failing to give him credit against his
total sentence for the time he served in the Detention and Diversion Center programs, which he
successfully completed. Although we granted an appeal on this issue, as well, appellant states on
brief that the Department of Corrections has since awarded him credit for this time and, as a
“A trial court has broad discretion to revoke a suspended sentence and probation based on
Code § 19.2-306.” Davis v. Commonwealth, 12 Va. App. 81, 86, 402 S.E.2d 684, 687 (1991).
“[C]onviction of a subsequent offense . . . is [not] required to justify a revocation of suspension
due to misconduct. ‘[T]he failure of a defendant to be of good behavior, amounting to
substantial misconduct, . . . provide[s] reasonable cause for revocation.’” Preston v.
Commonwealth, 14 Va. App. 731, 734, 419 S.E.2d 288, 290-91 (1992) (quoting Marshall v.
Commonwealth, 202 Va. 217, 220, 116 S.E.2d 270, 273-74 (1960)). In revoking a suspended
sentence and probation, the court is not bound by the sentencing guidelines, which are
permissive rather than mandatory. See, e.g., Jett v. Commonwealth, 34 Va. App. 252, 256, 540
S.E.2d 511, 513 (2001). As in the case of any appeal to this Court, “‘the credibility of the
witnesses and the evaluation and weight of their testimony . . . are for the [trial] court.’” Cottrell
v. Commonwealth, 12 Va. App. 570, 573, 405 S.E.2d 438, 440 (1991) (quoting Slayton v.
Commonwealth, 185 Va. 357, 366-67, 38 S.E.2d 479, 484 (1946)). “The court’s . . . judgment
will not be reversed unless there is a clear showing of abuse of discretion.” Davis, 12 Va. App.
at 86, 402 S.E.2d at 687.
Appellant does not dispute that his behavior in smoking marijuana, failing to attend
scheduled drug tests, and refusing to comply with other conditions of his probation justified a
revocation, but he contends the court “did not make the punishment fit the situation” in that it
“failed to consider the positive steps that [appellant] had taken, including his continued
employment, his ability to support his family and pay his rent and other obligations.” What
appellant fails to recognize, however, is that the trial court was not required to accept appellant’s
testimony. The evidence, viewed in the light most favorable to the Commonwealth, indicated
result, that he has already been released from incarceration. Because appellant specifically
concedes this issue is now moot, we do not consider it in this appeal.
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that appellant had demonstrated problems with both alcohol and drugs. He was charged with
driving under the influence and then tested positive for marijuana use three times over a period
of five months, after which he failed to report for any additional drug screens. He also refused
on at least three occasions to enter substance abuse counseling, first for alcohol and later for
marijuana. See, e.g., Connelly v. Commonwealth, 14 Va. App. 888, 420 S.E.2d 244 (1992)
(concluding revocation of probation based on illegal drug use was not abuse of discretion).
Further, the evidence, viewed in the light most favorable to the Commonwealth, was that he
remained unemployed. The length of the period of appellant’s noncompliance, coupled with his
aggressiveness in refusing to comply, caused the Probation Office of Fort Bend County, Texas,
to terminate its supervision.
Under these circumstances, the trial court’s decision to impose the sentence of one year
six months recommended by the guidelines for the underlying robbery and attempted robbery
offenses, which appellant originally avoided serving because the court allowed him to participate
in the Detention and Diversion Center Programs for about a year, did not constitute an abuse of
discretion. Thus, we affirm.
Affirmed.
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