COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Senior Judges Clements, Haley and Petty
ANDRE PERRY, A/K/A
AUNDRE PERRY, S/K/A
AUNDRE DWAYNE PERRY, S/K/A
ANDRE D. PERRY
MEMORANDUM OPINION *
v. Record No. 0823-21-1 PER CURIAM
JULY 5, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
Carl E. Eason, Jr., Judge
(Ashby L. Pope; Riddick & Pope, PC, on brief), for appellant.
Appellant submitting on brief.
(Jason S. Miyares, Attorney General; Leanna C. Minix, Assistant
Attorney General, on brief), for appellee.
Counsel for Andre Perry, appellant, filed a brief on his behalf accompanied by a motion for
leave to withdraw in accordance with Anders v. California, 386 U.S. 738, 744 (1967). A copy of
that brief has been furnished to Perry with sufficient time for him to raise any matter that he
chooses. Perry has not filed any pro se supplemental pleadings. After examining the briefs and
record in this case, we affirm the trial court’s judgment. We unanimously hold that oral argument is
unnecessary because “the appeal is wholly without merit.” Code § 17.1-403(ii)(a); Rule 5A:27(a).
BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party [below].” Poole v. Commonwealth,
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.
73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). In
doing so, we discard any of appellant’s conflicting evidence, and regard as true all credible evidence
favorable to the Commonwealth and all inferences that may reasonably be drawn from that
evidence. Gerald, 295 Va. at 473.
In 1994, the trial court convicted appellant of two counts of distribution of cocaine and
sentenced him to a total of twenty years’ incarceration with twelve years suspended, conditioned on
the successful completion of supervised probation. In 2002, after finding that Perry had violated the
conditions of his probation, the court revoked six years and resuspended five years of each
previously suspended sentence. On two subsequent occasions, the trial court found Perry had
violated the conditions of his probation, and each time revoked and resuspended five years of each
previously suspended sentence.
In August 2016, appellant’s probation officer filed a major violation report alleging that
appellant had twice tested positive for cocaine, admitted to using marijuana and cocaine, attended
only two of seventeen substance abuse treatment sessions, causing the program to discharge him,
and had not maintained communication with the probation officer. In an addendum, the probation
officer alleged that appellant had been charged with possession of cocaine, pled guilty to
misdemeanor possession of drug paraphernalia, and was sentenced to twelve months in jail. The
trial court issued a capias for appellant’s arrest, which was not executed until June 2019.
In July 2020, a grand jury indicted appellant for two counts of distribution of heroin. Under
a written plea agreement, appellant pled guilty to one indictment; the Commonwealth nolle
prosequied the other indictment and agreed not to amend the indictments to distribution, third or
subsequent offense, or to object to the sentencing and revocation hearings occurring together.
Before accepting appellant’s guilty plea, the court conducted a thorough colloquy to ensure
appellant understood the implications of pleading guilty and was doing so freely and voluntarily.
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Appellant had discussed the charges, their elements, possible defenses, and potential sentences with
his attorney. After that discussion, appellant decided for himself to plead guilty because he was, in
fact, guilty. Appellant understood that the conviction could result in “the revocation of any
suspended sentences” he had. He further understood that the court was not required to follow the
sentencing guidelines and that the Commonwealth had not agreed to a particular sentence.
Appellant declined the opportunity to ask the court any questions. After the colloquy and reviewing
the plea agreement, the court accepted appellant’s plea, finding that he had entered it “knowingly,
intelligently and voluntarily.”
The Commonwealth proffered that Southampton County Sheriff’s Detective Griffith used
two confidential informants to conduct a “controlled buy” of heroin from appellant. Griffith
searched the informants, found no contraband, equipped them with “surveillance equipment,” and
provided one confidential informant with sixty dollars. The informants met appellant and purchased
sixty dollars worth of heroin from him, then returned to Griffith with the substance purchased from
appellant, subsequently determined to be 0.4951 gram of heroin. Griffith searched the confidential
informants and found no other contraband. The recording from the surveillance equipment
corroborated the informants’ accounts.
Based on appellant’s plea and the proffered evidence, the court convicted appellant of
distribution of heroin, then granted the Commonwealth’s motion to nolle prosequi the remaining
indictment. The court deferred sentencing for preparation of a presentence report and continued
appellant’s revocation hearing.
At the combined sentencing and revocation hearing, appellant consented to the court hearing
the sentencing and revocation “jointly.” Appellant did not contest the allegations in the major
violation report that he had been convicted of possession of drug paraphernalia and of distribution
of heroin, the latter conviction the subject of the sentencing hearing. Deandre Artis, who had been
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appellant’s probation officer, testified that appellant had been “compliant” in probation and that she
had “a favorable recollection of him.” She could not recall, however, items from appellant’s major
violation reports including that he had tested positive for drugs, had been referred to substance
abuse treatment but had been discharged because he attended only two of seventeen sessions, and
had tested positive for marijuana and cocaine on “multiple occasions.”
The Commonwealth argued that appellant’s criminal history demonstrated that his “criminal
behavior” and “drug dealing” had persisted despite numerous “[t]reatment efforts” and “probation
and parole.” Additionally, appellant was before the court for the “same behavior that he has been
convicted of so many times in the past” and received a “tremendous benefit” by being allowed to
plead guilty to “one count of first offense” distribution rather than the third or subsequent with
which he could have been charged. Accordingly, the Commonwealth argued the court should
impose the maximum sentence of forty years’ incarceration and reimpose all ten years of appellant’s
suspended sentences.
Appellant conceded that he had a “long correctional history” but argued that his drug
addiction made a sentence within the discretionary sentencing guidelines 1 appropriate for the
probation violations. Appellant argued for a sentence at the midpoint of the discretionary
sentencing guidelines for the heroin distribution conviction and “six months to a year” for the
probation violations, for a total sentence of “between four and five years.”
In allocution, appellant stated that he had “a lot of regrets” and acknowledged making
“some bad choices.” He described seeing “drug dealers” at a young age and family members use
drugs. He acknowledged, however, that “the final decision” to use drugs was his and claimed that
1 The discretionary sentencing guidelines recommended a sentence between two years
and nine months to four years and seven months of incarceration, with a midpoint of three years
and nine months, for the heroin distribution conviction. For the probation violations, the
discretionary sentencing guidelines recommended six months to one year and six months.
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he sold drugs to support his own drug use. Appellant maintained that he had tried “to get clean on
my own” because the courts would not help him, but that after being incarcerated, he had “changed
[his] way of thinking.” He apologized for his actions and asked the court to “give [him] the chance”
to “help [his] community.”
The court found that appellant’s history demonstrated that he was “not going to obey the
laws” but instead would “do what [appellant] want[s] to do.” Further, by his repeated probation
violations, appellant had “thumbed [his] nose at authority.” By continuing to “sell and distribute
controlled substances” while knowing that he had “two five-year suspended sentences,” appellant
demonstrated that he was “prepared to go ahead and serve the time.” Accordingly, the court
revoked five years of each suspended sentence by final orders entered July 20, 2021. By a separate
final order, the court sentenced appellant to five years’ incarceration for the heroin distribution
conviction, finding that sentence was appropriate considering the time the court had reimposed for
the probation violations. This appeal follows.
ANALYSIS
On appeal, appellant asserts that the trial court abused its discretion by sentencing him to
“an active term of fifteen years” because the court sentenced him on the conviction and probation
violations in the same proceeding. He emphasizes that he sold heroin “to support his own habit”
and contends that the total active sentence was “out of proportion to the crime committed” and
represented “a clear abuse” of discretion.
A. Sentence for the heroin distribution conviction
“We review the trial court’s sentence for abuse of discretion.” Scott v. Commonwealth, 58
Va. App. 35, 46 (2011). “[W]hen a statute prescribes a maximum imprisonment penalty and the
sentence does not exceed that maximum, the sentence will not be overturned as being an abuse of
discretion.” Minh Duy Du v. Commonwealth, 292 Va. 555, 564 (2016) (quoting Alston v.
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Commonwealth, 274 Va. 759, 771-72 (2007)). Moreover, “[t]he sentencing guidelines are
advisory only and do not require trial courts to impose specific sentences.” Runyon v.
Commonwealth, 29 Va. App. 573, 577-78 (1999). “[T]he recommended sentencing ranges
contained in these discretionary guidelines are not binding on the trial judge but, rather, are mere
tools to be used by the judge in fixing an appropriate sentence within the limitations established
by the statute governing punishment for the particular crime.” Luttrell v. Commonwealth, 42
Va. App. 461, 465 (2004). Thus, a judge’s failure to follow the sentencing guidelines “shall not
be reviewable on appeal or the basis of any other post-conviction relief.” Code
§ 19.2-298.01(F). Accordingly, we may only consider whether the sentence fell outside the
permissible statutory range. See Smith v. Commonwealth, 26 Va. App. 620, 626 (1998);
Valentine v. Commonwealth, 18 Va. App. 334, 339 (1994). Here, appellant’s sentence was
within the statutory range. See Code § 18.2-248(C).
In addition, it was within the trial court’s purview to weigh the mitigating evidence
appellant presented. Keselica v. Commonwealth, 34 Va. App. 31, 36 (2000). “Criminal
sentencing decisions are among the most difficult judgment calls trial judges face.” Minh Duy
Du, 292 Va. at 563. “Because this task is so difficult, it must rest heavily on judges closest to the
facts of the case—those hearing and seeing the witnesses, taking into account their verbal and
nonverbal communication, and placing all of it in the context of the entire case.” Id. Here, the
record demonstrates that the trial court considered the mitigating circumstances appellant cites
on appeal, including his addiction. Balanced against that evidence, however, was appellant’s
extensive criminal history, including multiple convictions for drug distribution. After
considering all the circumstances, the trial court imposed the sentence that it deemed appropriate.
That sentence “does not exceed [the statutory] maximum,” and our task is complete. Id. at
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564-65; see also Thomason v. Commonwealth, 69 Va. App. 89, 99 (2018) (“Appellant’s sentence
was within the statutory range, and our task is complete.”).
B. Revocations for probation violations
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). “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)).
“If the court, after hearing, finds good cause to believe that the defendant has violated the
terms of suspension, then the court may revoke the suspension and impose a sentence in accordance
with the provisions of § 19.2-306.1.” Code § 19.2-306(C). “The court may again suspend all or
any part of this sentence for a period up to the statutory maximum period for which the defendant
might originally have been sentenced to be imprisoned, less any time already served, and may place
the defendant upon terms and conditions or probation.” Id.
Appellant does not contend that the trial court did not have sufficient cause to revoke his
suspended sentences; indeed, he stipulated that he had been convicted while on probation as alleged
in the major violation report. Rather, appellant argues that the trial court abused its discretion
because fifteen years’ “active time in prison,” the “majority” of which “came from the probation
violations,” is “out of proportion” to his crime.
As relevant to appellant’s claim, Code § 19.2-306.1(B) provides that
[i]f the court finds the basis of a violation of the terms and
conditions of a suspended sentence or probation is that the
defendant was convicted of a criminal offense that was committed
after the date of the suspension, . . . then the court may revoke the
suspension and impose or resuspend any or all of that period
previously suspended.
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The record demonstrates that appellant was convicted during the suspension period.
Thus, it was within the trial court’s discretion to “impose or resuspend any or all” of the
previously suspended sentences. Id. It was equally within the trial court’s purview to weigh any
mitigating factors appellant presented, such as his exposure to drugs at a young age, his own
addiction, and his desire to help his community. See Keselica, 34 Va. App. at 36.
“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). Appellant disregarded the terms of his suspended sentences on numerous occasions,
supporting a finding that he was not amendable 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 and continued to engage in
criminal conduct during the suspension period.
Thus, the sentences the trial court imposed for appellant’s probation violations represent a
proper exercise of its sentencing discretion. See Alsberry v. Commonwealth, 39 Va. App. 314,
321-22 (2002) (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”).
CONCLUSION
Accordingly, we affirm the trial court’s judgment and grant the motion for leave to
withdraw. See Anders, 386 U.S. at 744. This Court’s records shall reflect that Andre Perry is
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now proceeding without the assistance of counsel in this matter and is representing himself on
any further proceedings or appeal.
Affirmed.
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