John Richard Akers v. Commonwealth of Virginia

                                              COURT OF APPEALS OF VIRGINIA
UNPUBLISHED

              Present: Judges Fulton, Ortiz and Raphael


              JOHN RICHARD AKERS
                                                                              MEMORANDUM OPINION* BY
              v.      Record No. 1047-21-1                                      JUDGE DANIEL E. ORTIZ
                                                                                     JUNE 7, 2022
              COMMONWEALTH OF VIRGINIA


                      FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND
                                         COUNTY OF JAMES CITY
                                          Michael E. McGinty, Judge

                                (Christopher T. Voltin; Goff Voltin, PLLC, on brief), for appellant.
                                Appellant submitting on brief.

                                (Jason S. Miyares, Attorney General; Timothy J. Huffstutter,
                                Assistant Attorney General, on brief), for appellee.


                      John Richard Akers appeals from the decision of the Circuit Court of the City of

              Williamsburg and County of James City revoking a portion of his previously suspended sentences.

              Akers contends that the trial court abused its discretion by revoking his previously suspended

              sentences “because it failed to adequately consider the mitigating evidence offered at the sentencing

              hearing.” After examining the briefs and record, 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).

              Because the trial court did not abuse its discretion by improperly weighing mitigating evidence, we

              affirm the trial court’s decision.




                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                           BACKGROUND

        On June 19, 2019, the trial court convicted Akers, upon his guilty pleas, of identity theft to

avoid arrest and providing false information to the police. For the identity theft conviction, the trial

court sentenced Akers to twelve months in jail with ten months suspended. For the providing false

information offense, the trial court sentenced Akers to twelve months in jail with eight months

suspended. Akers’s suspended sentences were conditioned upon him being of good behavior,

keeping the peace, obeying the trial court’s order, and paying fines and costs for a period of five

years. On February 18, 2020, the trial court found Akers in violation of his probation conditions,

revoked his suspended sentences, and resuspended fourteen months.

        On October 21, 2020, Akers’s probation officer filed a major violation report, alleging that

Akers had again violated his probation conditions. The report stated that Akers continued to test

positive for illegal drugs. Addenda to the major violation report dated February 19, 2021, and June

16, 2021, stated that Akers had again tested positive for drugs.

        At the June 23, 2021 revocation hearing, Akers acknowledged the violations and

“accept[ed] full responsibility” for his conduct. He also admitted having used cocaine while on

probation. Akers proffered that he had taken steps to address his addiction, including completing a

rehabilitation program, seeing a psychiatrist, and maintaining full-time employment. The trial court

found Akers in violation of his probation conditions, revoked his suspended sentences, and

resuspended four months, leaving Akers with ten months of active incarceration.

                                              ANALYSIS

        Akers concedes “that the trial court did not exceed the maximum punishment for the offense

of which he was convicted.” Instead, he argues only that “the trial court did not articulate how it

arrived at the sentence that it did, aside from general statements about Akers’s lack of internal




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motivation to address his underlying addiction.” He further asserts that the trial court “did not seem

to acknowledge the defense’s mitigation evidence.”1

       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). “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.

       Akers admitted that he violated the terms of his suspended sentences. Thus, the record

establishes that the trial court had sufficient cause to revoke Akers’s suspended sentences. Under

the operative terms of the revocation statute in effect when the trial court considered Akers’s

violation, once it found that Akers had violated the terms of the suspension, the trial court had to

revoke the suspended sentences and they were then in “full 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 sentences. Id.; Alsberry, 39 Va. App. at 320.

       It was within the trial court’s purview to weigh any mitigating factors Akers presented.

Keselica v. Commonwealth, 34 Va. App. 31, 36 (2000). “The statutes dealing with probation and



       1
         Akers asks this Court to consider his argument under the ends of justice exception to
Rule 5A:18. We assume without deciding that Akers meets this standard and proceed to decide
his appeal on its merits.
       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 Spec. Sess. I ch. 538.
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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). “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)).

        The record reflects that Akers continued to disregard the terms of his suspended sentences,

even after a prior revocation, by repeatedly testing positive for cocaine. The trial court reasonably

could conclude that Akers’s conduct demonstrated that he was not amenable to rehabilitation,

despite the mitigating evidence Akers offered at the sentencing hearing. The record shows Akers

failed to make productive use of the grace extended to him while he was on probation. Further, the

trial court was not required to articulate the reasoning for its decision, absent a statutory

requirement. See Giraldi v. Giraldi, 64 Va. App. 676, 684 n.5 (2015); Pilati v. Pilati, 59 Va. App.

176, 180 (2011).

        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 that 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”).

                                            CONCLUSION

        For these reasons, the trial court’s decision is affirmed.

                                                                                                Affirmed.




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