COURT OF APPEALS OF VIRGINIA
Present: Judges Huff, O’Brien and Russell*
UNPUBLISHED
DAKOTA CRAIG RUSSELL
MEMORANDUM OPINION**
v. Record No. 0078-22-1 PER CURIAM
JULY 26, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Robert G. MacDonald, Judge
(Samantha Offutt Thames, Senior Assistant Public Defender;
Indigent Defense Commission, on briefs), for appellant.
(Jason S. Miyares, Attorney General; Timothy J. Huffstutter,
Assistant Attorney General, on brief), for appellee.
Dakota Craig Russell appeals from the judgment of the Circuit Court of the City of
Chesapeake revoking his previously suspended sentences and imposing three years and six months’
incarceration. Appellant contends that the trial court abused its discretion by imposing the sentence
for his admitted 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). We affirm the judgment of the trial court.
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,
73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). In
*
Justice Russell participated in the hearing and decision of this case prior to his
investiture as a Justice of the Supreme Court of Virginia.
**
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
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 2012, the trial court convicted appellant of obtaining money by false pretenses and
uttering a forged check and sentenced him to six years’ incarceration with all time suspended. In
2013, appellant pleaded guilty to possessing cocaine and the trial court sentenced him to four years’
incarceration with all time suspended. The trial court also revoked his previously suspended
sentences and resuspended a portion of each sentence. The trial court revoked and resuspended in
part appellant’s previously suspended sentences in 2014 and 2019. Appellant was released to
supervised probation in February 2020.
In November 2020, appellant’s probation officer filed a major violation report alleging that
appellant had absconded from supervision. In a November 2021 addendum, the probation officer
reported that appellant also had been charged with new criminal offenses. Appellant later was
found guilty of driving without a license, failure to appear, and petit larceny.
At the revocation hearing, appellant admitted that he repeatedly had violated the terms of his
suspended sentences. The Commonwealth emphasized appellant’s extensive criminal history, noted
that this was appellant’s fourth revocation hearing and asked the trial court to impose a sentence of
three and a half years, to be served in the Department of Corrections’ “therapeutic setting.”
Appellant proffered that he would live in Portsmouth with his fiancée, that he was the father
of three children, including a newborn, and that he had secured regular employment before his most
recent arrest, to which he could return upon his release. He argued for a sentence within the
guidelines, which ranged from three months to one year.
The trial court noted that it “appreciate[d]” appellant’s mitigating evidence and apology, but
it found that appellant had a “long list of issues” with probation and that probation was “not
-2-
working very well” for him. The trial court further found that a therapeutic community was
“essential” for appellant and that imposing a one-year sentence or less would prevent appellant’s
eligibility for the program. The trial court revoked appellant’s suspended sentences and
resuspended them in part, leaving him with an active sentence of three years and six months’
incarceration.
ANALYSIS
Appellant argues that the trial court abused its discretion by not resuspending more of his
previously suspended sentences. He suggests that the “2021 adjustments to the Sentencing
Guidelines for probation violations indicate a further bolstering” of the “rehabilitative purpose for
probation violations.” He further argues that his “mitigation evidence justified a lesser sentence”
and that the “trial court should have imposed other, less restrictive terms.”
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). Moreover, under the revocation
statute in effect when this revocation proceeding began, once the trial court found that he had
violated the terms of the suspension, it was obligated to revoke the suspended sentence and the
original sentence became “in full force and effect.” Code § 19.2-306(C)(ii) (2020).2 The trial court
was permitted—but not required—to resuspend all or part of the sentence. Id.; Alsberry v.
Commonwealth, 39 Va. App. 314, 320 (2002). “In revocation appeals, the trial court’s ‘findings of
2
Although Code § 19.2-306(C) was amended effective July 1, 2021, appellant does not
argue that the statutory amendment applied in his case and this Court recently held that it did not
apply when, as here, the probation violations occurred and the revocation proceeding began
before the effective date of the amendment. See Green v. Commonwealth, 75 Va. App. 69, 84,
n.4 (2022). Moreover, even under the new statutory framework, the trial court has discretion to
impose the balance of a previously suspended sentence when a probationer commits a new
offense during the suspension period. See 2021 Va. Acts Sp. Sess. I, ch. 538; Code
§ 19.2-306.1(B).
-3-
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)).
Appellant does not contend that the trial court did not have sufficient cause to revoke his
suspended sentence; indeed, he stipulated that he had violated the terms of the suspended sentences.
The record demonstrates that appellant had acquired new criminal convictions 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. It was equally within the trial court’s purview to
weigh any mitigating factors appellant presented, such as challenges in obtaining substance
abuse treatment. See Keselica v. Commonwealth, 34 Va. App. 31, 36 (2000).
“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’s continued disregard of the terms of his suspended sentence supports 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 opportunities that had been extended to him repeatedly and continued to
engage in criminal conduct.
Accordingly, we hold that the sentence the trial court imposed represents a proper
exercise of its sentencing discretion.
-4-
CONCLUSION
For the foregoing reasons, the trial court’s decision is affirmed.
Affirmed.
-5-