Rodney Randolph Thompson v. Commonwealth of Virginia

Court: Court of Appeals of Virginia
Date filed: 2022-07-19
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                                               COURT OF APPEALS OF VIRGINIA


              Present: Judges O’Brien, Lorish and Senior Judge Annunziata
UNPUBLISHED



              RODNEY RANDOLPH THOMPSON
                                                                                MEMORANDUM OPINION*
              v.       Record No. 1161-21-4                                         PER CURIAM
                                                                                    JULY 19, 2022
              COMMONWEALTH OF VIRGINIA


                                 FROM THE CIRCUIT COURT OF RAPPAHANNOCK COUNTY
                                                 James P. Fisher, Judge

                                 (David W. Walls, Deputy Public Defender, on brief), for appellant.

                                 (Jason S. Miyares, Attorney General; Rebecca M. Garcia, Assistant
                                 Attorney General, on brief), for appellee.


                       The appellant, Rodney Randolph Thompson, argues that the circuit court abused its

              discretion by considering an improper factor—a prior conviction he did not have—during his

              sentencing for a probation violation. 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). Because we conclude the circuit court simply misspoke

              when it referred to Thompson’s prior offense as malicious, instead of unlawful, wounding and

              that this misstatement did not affect the overall sentence, we affirm the decision of the circuit

              court.




                       *
                           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                           BACKGROUND1

           The circuit court previously convicted Thompson of assault and battery of a family member

and attempted unlawful wounding in 2018. Thompson was sentenced to three years of incarceration

and twelve months in jail, with all but four months suspended on the condition that he successfully

complete supervised probation, substance abuse treatment, an anger management course, and pay

restitution. Thompson’s initial term of probation was set to expire in September 2020. However, in

December 2019, following a show cause hearing for Thompson’s failure to pay restitution, the court

revoked and resuspended his sentence to afford him additional time to pay and comply with the

terms of supervision. As part of this revocation, the court extended his term of probation by six

months, making the term expire in March 2021.

           In January 2021, an officer from Fredericksburg Probation and Parole issued a major

violation report alleging that Thompson had again violated the terms of his probation. The report

asserted that Thompson had changed his residence without notifying probation and absconded after

failing to complete anger management treatment. In a supplemental letter to the court,

Rappahannock County Probation and Parole Officer Lori Sisson wrote that Thompson had also

incurred new criminal convictions for contempt of court and driving with a revoked operator’s

license.

           At Thompson’s revocation hearing, Sisson reiterated the allegations in the major violation

report and her letter supplementing it. She also testified that a probation officer had “conducted a

home visit” at Thompson’s “approved residence” and discovered that he had moved without

permission or notice. Moreover, since July 2020, probation had lost contact with Thompson until

he was arrested on the show cause capias. Conceding that he had incurred new criminal convictions



         “In accordance with familiar principles of appellate review, the facts will be stated in the
           1

light most favorable to the Commonwealth, the prevailing party at trial.” Poole v. Commonwealth,
73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)).
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while on probation, Thompson testified that he never knew that he was required to complete anger

management treatment. Thompson also admitted that he had moved without notifying his probation

officer but argued that he believed his probation had expired.2

       Following argument by counsel, the circuit court found that Thompson had violated the

conditions of probation as alleged and proceeded to sentencing. Before imposing sentence, the

court requested “a copy of [Thompson’s] prior record” and confirmed that the parties had received

Sisson’s letter detailing Thompson’s new convictions. The court found that Thompson’s underlying

convictions for “attempted malicious wounding” and “assault of a domestic nature” were “serious,”

but said his newly-incurred criminal convictions were “of the greatest concern.” The court

concluded that Thompson was “not amenable to probation” and, accordingly, revoked and

resuspended all but two years of Thompson’s previously-suspended sentence.

       Thompson subsequently moved for reduction of his sentence, asserting that the circuit court

had misstated his underlying conviction as “attempted malicious wounding” when it was actually

for attempted unlawful wounding. The court summarily denied the motion without a hearing,

concluding that “the sentence will remain unchanged.” This appeal follows.

                                            ANALYSIS

       Thompson contends that the circuit court abused its discretion by considering an “inaccurate

prior conviction” during sentencing. 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


       2
         On cross-examination, Sisson agreed that the probation officer’s report stated that the
supervising officer had “attempted to re-establish contact” with Thompson “to advise him that
his supervision had not expired” because the “supervision date was not updated” in that officer’s
records to reflect the six-month extension. Sisson further agreed that this may have meant that
both the probation officer and Thompson had erroneously believed that his term was over as of
September 2020. Thompson has not assigned error to whether the court appropriately revoked
his suspended sentences.
                                               -3-
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)).

               An abuse of discretion . . . can occur in three principal ways: when
               a relevant factor that should have been given significant weight is
               not considered; when an irrelevant or improper factor is considered
               and given significant weight; and when all proper factors, and no
               improper ones, are considered, but the court, in weighing those
               factors, commits a clear error of judgment.

Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 352 (2011) (quoting Kern v.

TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984)). “The evidence is considered in the light most

favorable to the Commonwealth, as the prevailing party below.” Jacobs, 61 Va. App. at 535.

       Under Code § 19.2-306(C), if the trial court finds good cause to believe that the defendant

has violated the terms of suspension, the court may revoke the suspension and impose a new

sentence. The court can then 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, less any time

already served, and may place the defendant upon terms and conditions or probation. Thompson

does not argue that the circuit court lacked sufficient cause to revoke his suspended sentence;

indeed, he conceded the violation below. Rather, he argues that the court abused its discretion by

considering an improper factor—“an incorrect prior conviction during sentencing”—which

Thompson asserts “result[ed] in more of [his] suspended sentence being revoked” than would

otherwise have occurred.

       The record does not support Thompson’s assertions. Thompson concludes from the circuit

court’s misstatement of his underlying conviction that it improperly considered “a conviction that

does not exist.” But that argument overlooks the broader context of the record as a whole. “[T]his

Court may not ‘fix upon isolated statements of the trial judge taken out of the full context in which

they were made, and use them as a predicate for holding the law has been misapplied.’” Bassett v.
                                                 -4-
Commonwealth, 13 Va. App. 580, 583 (1992) (quoting Yarborough v. Commonwealth, 217 Va.

971, 978 (1977)). Moreover, a “trial court’s remark is not, in and of itself, ‘the full context’ simply

because it represents the only point at which the court [expressly] addressed the issue [in dispute].”

Parker v. Commonwealth, 41 Va. App. 643, 656 (2003) (quoting Bassett, 13 Va. App. at 583-84),

overruled in part on other grounds by Crawford v. Washington, 541 U.S. 36 (2004). Although the

circuit court misstated Thompson’s underlying conviction at sentencing, the court had requested his

criminal record before imposing judgment. The court also subsequently denied his motion for

reconsideration, which explicitly identified the discrepancy, holding that “the sentence will remain

unchanged.” Viewed in the light most favorable to the Commonwealth, those circumstances

demonstrate that the circuit court was aware of Thompson’s correct criminal history and simply

misspoke while rendering judgment. Cf. Nelson v. Commonwealth, 12 Va. App. 835, 838 (1991)

(concluding that the trial court “misspoke” regarding the length of the defendant’s sentence and did

not intend to impose a more lenient penalty).

        More importantly, nothing in the record suggests that the circuit court imposed a more

severe sentence because of the misstatement. To the contrary, the circuit court emphasized that

Thompson’s new criminal convictions while on probation were “of the greatest concern.” The

court also considered Thompson’s history under court supervision, which included his failure to

complete required treatment, and concluded that he was “not amenable” to probation. For this

reason, the court imposed two active years of incarceration with no additional term of supervised

probation. Accordingly, we hold that the circuit court did not abuse its discretion by considering

an improper factor.

                                           CONCLUSION

        For the foregoing reasons, the circuit court’s judgment is affirmed.

                                                                                              Affirmed.

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