COURT OF APPEALS OF VIRGINIA
Present: Judges Fulton, Ortiz and Raphael
UNPUBLISHED
CORNELL ULYSSES SMITH, JR.
MEMORANDUM OPINION *
v. Record No. 0750-21-1 PER CURIAM
MAY 17, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Joel P. Crowe, Judge
(W. McMillan Powers, Assistant Public Defender, on brief), for
appellant.
(Jason S. Miyares, Attorney General; Jason D. Reed, Assistant
Attorney General, on brief), for appellee.
Cornell Ulysses Smith, Jr. appeals from the decision of the Circuit Court of the City of
Portsmouth revoking his previously suspended sentence and imposing an active sentence.
Appellant contends that the trial court abused its discretion by revoking his remaining suspended
sentence, resuspending six months of the sentence, and ordering him to complete six months of
supervised probation. 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.
BACKGROUND
On September 24, 2018, the trial court convicted appellant, upon a guilty plea, of failing to
register as a sex offender, second offense. The trial court sentenced appellant to two years of
imprisonment with one year and three months suspended.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
On April 10, 2020, appellant’s probation officer filed a major violation report alleging that
appellant had tested positive for drugs, admitted selling drugs to support himself, and failed to
register for and complete substance abuse treatment as ordered by the officer. In addition, appellant
was arrested on February 27, 2020, for conspiracy to shoplift more than $500 worth of merchandise.
A May 5, 2020 addendum to the report stated that appellant violated the requirement that he wear a
GPS monitoring device; appellant deliberately let the device’s battery die so that he could not be
tracked, as was required due to his prior conviction for failing to register as a sex offender.
Appellant absconded from probation supervision, and his whereabouts were then unknown.
At the June 29, 2021 revocation hearing, appellant admitted that he had violated the
conditions of his probation and his probation officer testified about the contents of the major
violation report and its addendum. In his defense, appellant claimed that he was unable to
participate in substance abuse treatment because of safety precautions imposed during the Covid-19
pandemic. Both the prosecutor and the defense argued that an active sentence of six months was
appropriate under the circumstances. The trial court, however, found appellant in violation of his
probation, revoked the suspension of his remaining one-year and three-month sentence, and
resuspended six months, resulting in a nine-month active sentence. The trial court also imposed a
six-month period of probation. This appeal followed.
ANALYSIS
Appellant argues that the trial court abused its discretion, after finding him in violation of his
probation, by imposing a nine-month active sentence and six months of probation. 1 After
suspending a sentence, a trial court “may revoke the suspension of sentence for any cause the court
1
Appellant’s assignment of error states that the trial court erred in revoking his remaining
suspended sentence of one-year and six-months. As previously noted, however, the record
reflects that the trial court found appellant in violation of his probation, revoked the suspension of
his remaining one-year and three-month sentence, resuspended six months, and imposed a
six-month period of probation.
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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). “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.” Alsberry v. Commonwealth, 39 Va. App. 314, 320 (2002). “In
revocation appeals, the trial court’s ‘findings of fact and judgment will not be reversed unless there
is a clear showing of abuse of discretion.’” Jacobs v. Commonwealth, 61 Va. App. 529, 535 (2013)
(quoting Davis v. Commonwealth, 12 Va. App. 81, 86 (1991)). “The evidence is considered in the
light most favorable to the Commonwealth, as the prevailing party below.” Id.
Appellant does not contend that the trial court did not have sufficient cause to revoke his
suspended sentence. Rather, he argues that “[t]he sentence imposed was more than what was
necessary to punish [him] appropriately.” Appellant maintains that “[t]he court should have
suspended all of the active time reimposed on [him] and imposed less probationary time.”
“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). By continuing to disregard the terms of his suspended sentence, appellant demonstrated 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)). Appellant failed to make
productive use of the grace that had been extended to him.
Under the operative terms of the revocation statute in effect when the trial court
considered appellant’s violation, once it found that appellant had violated the terms of the
suspension, the trial court was obligated to revoke the suspended sentence and it was in “full
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force and effect.” Code § 19.2-306(C)(ii). 2 The trial court was permitted—but not required—to
resuspend all or part of the sentence. Id.; Alsberry, 39 Va. App. at 320.
The uncontroverted evidence established that appellant violated the conditions of his
probation by using and selling drugs, absconding from supervision, and failing to obtain substance
abuse treatment. It was within the trial court’s purview to weigh any mitigating factors appellant
presented, such as the challenges in obtaining substance abuse treatment under pandemic safety
restrictions. See Keselica v. Commonwealth, 34 Va. App. 31, 36 (2000). The record establishes
that the trial court had sufficient cause to revoke appellant’s suspended sentence. Accordingly, we
hold that the sentence the trial court imposed represents a proper exercise of discretion. See
Alsberry, 39 Va. App. at 321-22 (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”).
Moreover, to the extent appellant argues that his sentence was disproportionate, this
Court declines to 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. (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”).
2
Code § 19.2-306(C) was amended effective July 1, 2021, and no longer requires the trial
court to revoke the sentence. 2021 Va. Acts (Sp. Sess. I) ch. 538.
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CONCLUSION
For the foregoing reasons, the trial court’s decision is affirmed.
Affirmed.
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