COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Causey and Senior Judge Clements
UNPUBLISHED
Argued at Richmond, Virginia
PEARLY E. WALTERS
MEMORANDUM OPINION* BY
v. Record No. 0038-22-2 JUDGE JEAN HARRISON CLEMENTS
AUGUST 23, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Lynn S. Brice, Judge
(M.G. Henkle; Henkle Law Firm, on brief), for appellant. Appellant
submitting on brief.
Jason D. Reed, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
The Circuit Court of Chesterfield County (“trial court”) revoked seven and re-suspended
five years of Pearly E. Walter’s previously suspended sentences for obtaining money by false
pretenses and uttering a worthless check. On appeal, Walters contends that the trial court abused
its discretion by imposing two years of active incarceration and ruling that it lacked authority to
instruct the Sheriff to allow him to serve his sentence in the Henrico County Jail. Walters also
argues that the trial court erred in admitting or considering certain evidence at sentencing. For
the following reasons, we affirm the trial court’s judgment.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND
“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.
In July 2011, the trial court convicted Walters of felony obtaining money by false pretenses
and uttering a worthless check. The court sentenced him to a total of eight years’ incarceration with
all but one year suspended conditioned upon good behavior.
On May 22, 2020, the Circuit Court of Lancaster County convicted Walters of felony credit
card theft. The Lancaster County Commonwealth’s Attorney advised the Commonwealth’s
Attorney for Chesterfield County of the new conviction by letter, including the former’s opinion
that Walters “is a career thief with 19 convictions of fraud and larceny in the last twenty years” and
in Lancaster County, Walters “pretended to be a minister helping an intellectually challenged man
while using the man’s debit card to make over $6,000.00 in fraudulent transactions.” On June 29,
2020, the trial court issued a capias for Walters’ arrest.
At a revocation hearing on September 1, 2021, Walters conceded the violation, and the
Commonwealth introduced a certified copy of the conviction order from Lancaster County.
Accordingly, the trial court found Walters “in violation” of the terms and conditions of his
previously suspended sentences. The Commonwealth sought to introduce a copy of the May 29
letter from the Lancaster County Commonwealth’s Attorney, “solely” for the court to “have some
flavor” of the facts underlying the new conviction. Defense counsel objected, arguing that “there’s
a lot of editorial comments stated in the letter, and I don’t think it’s appropriate for the [c]ourt to
consider.” He clarified, “I don’t object to the [c]ourt considering the fact that [Walters] got
convicted of new offenses in Lancaster,” but objected that, “normally evidence comes in from a
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Probation Officer” whereas “[t]his is coming in from the elected Commonwealth Attorney in
another jurisdiction who is upset that [Walters] didn’t get enough time in that jurisdiction.” In
response, the court stated its confidence that it could “parcel out what’s relevant to this hearing.”
The Commonwealth argued that the trial court had “the right to know some of the facts underlying
the new conviction” and asked it to consider only “that portion of the letter . . . , not the
editorialization.” The court overruled Walters’ objection and found that “the sum of this letter tells
me there is a conviction,” concluding that the underlying facts were “relevant for sentencing
whether or not [he was] in violation.”
Walters introduced several documents in mitigation. Records from the Virginia Department
of Corrections reflected that he had an outstanding active sentence in Henrico County of four years
and twelve months. In an order dated September 22, 2020, the Circuit Court of Henrico County
found Walters eligible to serve that sentence through that jurisdiction’s “Work Release program”
and did “not object” to his participation in the “ORBIT program” with the Henrico County Sheriff’s
approval.1 A letter from Henrico Area Mental Health & Developmental Services indicated that
Walters recently “completed Phase III of Henrico County Jail’s R.I.S.E. (Recovery In a Secure
Environment) program,” which Walters explained was “a prerequisite” to participate in the ORBIT
program. Finally, defense counsel introduced a document purporting to be the “Articles of
Organization of Harborview Cleaners LLC” and proffered that Walters intended to “go back in the
dry cleaning business” upon release from custody.
During argument, defense counsel acknowledged Walters’ criminal record and argued that
the court should “disregard a great deal” of the “editorialization” contained in the letter from the
Lancaster County Commonwealth’s Attorney. The trial court interjected, “Yes. I think that’s what
I do every day.” Defense counsel asked the trial court “not to handicap [Walters’] ability to pursue
1
The record does not reflect any details regarding the nature of the ORBIT program.
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the plan that he already had in place.” He asked the trial court to “consider running [any active
sentence] concurrent” with Walters’ existing sentence or “allowing him to serve that time in the
Henrico County Jail System.” Counsel concluded, “I don’t think it’s necessary for the [c]ourt to put
[Walters] on supervised probation upon release” because he “wasn’t on supervised probation at the
time” of the violation.
The Commonwealth noted Walters’ significant “criminal history,” including “20 felony
convictions” comprised “almost entirely of [offenses of] a larceny or a fraudulent-type nature.”
Given his “criminal history and the nature of the new charges,” the Commonwealth argued that “a
substantial period of incarceration should be imposed.”
At allocution, Walters stated that “this [was his] first time here after nine years to come back
to court for anything.” He accepted responsibility for his misconduct and said that he had since
“learned a lot” and obtained “a lot of tools” while incarcerated. Walters described his history of
incarceration and reform, stating that when his life “became unmanageable,” he sought counseling
services through Northern Neck Middle Peninsula Community Service Board “to work on [his]
behavior.” He acknowledged that there was a time when he was “out of control” but claimed,
“that’s not in [his] life anymore.” Asserting that incarceration is “not just [about] punishment,”
Walters maintained that he had obtained “more tools” and resolved “to do better” each time he had
been imprisoned. This time, he “recognize[d]” his wrong and was committed to “stay[ing] in the
program” to avoid recidivism.
Before imposing sentence, the trial court found that Walters had “a 20-year history of
stealing and fraud and forgery and perjury and probation violation[s], and 20 felony convictions for
that type of behavior and countless misdemeanors, including this charge.” The trial court found
Walters’ pattern of committing the same offenses to be “very egregious.” Accordingly, the trial
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court revoked seven years of Walters’ previously suspended sentences, re-suspended five years, and
placed him on supervised probation.
Immediately following the trial court’s imposition of sentence, defense counsel asked the
court to “consider authorizing” that Walters “serve the time in Henrico if they agree to accept him.”
The trial court denied the request, stating, “No, sir. That’s up to the Sheriff. I don’t tell the Sheriff
where to put his people.” Defense counsel responded that he was “not suggesting” that the trial
court “tell [the Sheriff] where to put [Walters],” but was requesting that the “[c]ourt authorize that if
the two Sheriffs agree.” Again, the court demurred, stating, “No. He’s with the Sheriff.” Walters
appeals.
ANALYSIS
A. The trial court did not abuse its sentencing discretion.
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). Walters does not contend that the
trial court did not have sufficient cause to revoke his suspended sentences. Rather, he asserts that
the trial court abused its discretion by imposing two years of active incarceration. He maintains that
his sentence was not “proportional” to his violations and “arbitrary and unreasonable” given “the
punishment and rehabilitative programs [he] had already completed in other jurisdictions.” Further,
Walters argues that the trial court erred in “ruling that it lacked the authority to authorize the Sheriff
to allow [him] to serve his time in Henrico.” We disagree.
Under the revocation statute in effect when Walters’ revocation proceeding began, once the
trial court found that he had violated the terms of the suspension, it was obligated to revoke the
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suspended sentences and they were in “full force and effect.” Code § 19.2-306(C)(ii).2 The trial
court was permitted—but not required—to re-suspend all or part of the sentence. Id.; Alsberry v.
Commonwealth, 39 Va. App. 314, 320 (2002). In making that determination, it was within the trial
court’s purview to weigh any mitigating evidence Walters presented. Keselica v. Commonwealth,
34 Va. App. 31, 36 (2000).
Here, the evidence established that Walters had an extensive criminal history replete with
felony theft offenses and “countless misdemeanors.” Despite receiving only one year of active
incarceration for his previous convictions for obtaining money by false pretenses and uttering a
worthless check in 2011, Walters incurred yet another criminal conviction by “doing the same thing
that [he was] convicted for before.”
“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). Walters’ pattern of criminal behavior—despite significant court intervention—supports the
finding 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)). Walters abused the
2
Although Code § 19.2-306(C) was amended effective July 1, 2021, Walters 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, 86
(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).
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“grace” that had been extended to him by continuing to engage in fraudulent criminal behavior,
perpetuating his already decades-long criminal history.
Furthermore, we find no merit in Walters’ contention that the sentence imposed was
disproportionate to the nature of the violation. 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, 654 (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. at 653 (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”).
Thus, we decline to conduct a proportionality review in this case. See id.
Finally, Walters’ contention that the trial court erred in “ruling that it lacked the authority to
authorize the Sheriff to allow [him] to serve his time in Henrico,” is meritless and without
evidentiary support. Contrary to Walters’ assertion on brief, the trial court never ruled that it lacked
any such authority. Rather, the court merely denied Walters’ request to order the Sheriff to house
him at Henrico County Jail while he served his sentence, deferring to the Sheriff’s judgment
concerning Walters’ confinement.
In sum, the record supports the trial court’s judgment. “For probation to have a deterrent
effect on recidivism, real consequences must follow a probationer’s willful violation of the
conditions of probation.” Price, 51 Va. App. at 449. Upon review of the record in this case, we
conclude that the sentence the trial court imposed represents such real consequences and was a
proper exercise of judicial discretion. See Brittle v. Commonwealth, 54 Va. App. 505, 520 (2009)
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(affirming the court’s imposition of a five-year sentence with three years suspended for third offense
larceny because the sentence was “not excessive on its face”).
B. The trial court did not abuse its discretion in admitting the letter from the
Lancaster County Commonwealth’s Attorney.
Walters also argues that the trial court erred in admitting the “inherently inflammatory and
prejudicial letter” from the Lancaster County Commonwealth’s Attorney at the sentencing hearing.
Walters contends that “much of [the letter] consisted of irrelevant information,” which was
“prejudicial and offering an opinion on the ultimate issue” of Walters’ “propensity to commit a
certain type of crime and the need for punishment.” We disagree.
“[W]e review a trial court’s decision to admit or exclude evidence using an abuse of
discretion standard and, on appeal, will not disturb a trial court’s decision to admit evidence
absent a finding of abuse of that discretion.” Kenner v. Commonwealth, 299 Va. 414, 423 (2021)
(quoting Avent v. Commonwealth, 279 Va. 175, 197 (2010)). “In evaluating whether a trial court
abused its discretion, . . . we do not substitute our judgment for that of the trial court. Rather, we
consider only whether the record fairly supports the trial court’s action.” Id. (quoting Carter v.
Commonwealth, 293 Va. 537, 543 (2017)). “The abuse-of-discretion standard [also] includes
review to determine that the discretion was not guided by erroneous legal conclusions.” Id.
(alteration in original).
“Evidence of a new criminal offense may be relevant and admissible in a probation
revocation hearing,” for example when a new criminal conviction forms the basis of the
violation. Downey v. Commonwealth, 59 Va. App. 13, 21 (2011). Moreover, a defendant’s
“entire criminal record” is relevant and admissible at sentencing in a revocation hearing to
determine “how much of the suspension to revoke.” Pearson v. Commonwealth, 37 Va. App.
583, 590 (2002). Here, the sole basis for revoking Walters’ suspended sentence was the new
criminal conviction. The challenged letter contained a summary of the facts underlying the new
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conviction. Accordingly, the letter was relevant and admissible to inform the trial court’s
decision in fashioning an appropriate sentence. See Downey, 59 Va. App. at 21; Pearson, 37
Va. App. at 590.
Further, the record demonstrates that the trial court admitted the letter solely to consider
the facts underlying the new conviction, not the Lancaster County Commonwealth’s Attorney’s
“editorialization.” In a bench trial, “the trial judge is presumed to disregard prejudicial or
inadmissible evidence, and this presumption will control in the absence of clear evidence to the
contrary.” Pierce v. Commonwealth, 50 Va. App. 609, 616 (2007) (internal quotation marks
omitted). To be sure, “a trial judge sitting as a fact finder in a bench trial, is uniquely suited by
training, experience, and judicial discipline to disregard potentially prejudicial comments.” Adjei
v. Commonwealth, 63 Va. App. 727, 739 (2014) (internal quotation marks omitted).
Consequently, “we presume that a trial judge has separate[d], during the mental process of
adjudication, the admissible from the inadmissible, even though [s]he has heard both.” Id.
“Thus, in the absence of affirmative evidence to the contrary, we are bound by the presumption
that the circuit court judge, acting as the finder of fact in this case, properly and separately
considered only the evidence relevant to the charges in each case.” Cousett v. Commonwealth,
71 Va. App. 49, 63 (2019).
Here, the trial court explicitly stated that it could “parcel out” the information that was
“relevant to” the revocation proceeding. Furthermore, the court granted Walters’ request to
disregard the letter’s “editorializations,” stating it routinely disregarded inadmissible
information. Thus, no “affirmative evidence” undermines the presumption that the trial court
“disregard[ed]” the allegedly “prejudicial or inadmissible” portions of the letter. Pierce, 50
Va. App. at 616. Accordingly, “we are bound by the presumption that the circuit court judge,
acting as the finder of fact in this case, properly and separately considered only the evidence
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relevant” to the case. Cousett, 71 Va. App. at 63. We find no abuse of the trial court’s
discretion.
C. Waiver
Finally, Walters argues that the trial court erred in considering his criminal record at
sentencing because it was “never offered or admitted into evidence.” He acknowledges that he
did not preserve this argument but asks that we consider it under the ends of justice exception to
Rule 5A:18.3
“The ‘ends of justice’ exception to Rule 5A:18 is ‘narrow and is to be used sparingly.’”
Pearce v. Commonwealth, 53 Va. App. 113, 123 (2008) (quoting Bazemore v. Commonwealth,
42 Va. App. 203, 219 (2004) (en banc)). Whether to apply the ends of justice exception involves
two questions: “(1) whether there is error as contended by the appellant; and (2) whether the
failure to apply the ends of justice provision would result in a grave injustice.” Commonwealth
v. Bass, 292 Va. 19, 27 (2016) (quoting Gheorghiu v. Commonwealth, 280 Va. 678, 689 (2010)).
“The burden of establishing a manifest injustice is a heavy one, and it rests with the appellant.”
Holt v. Commonwealth, 66 Va. App. 199, 210 (2016) (en banc) (quoting Brittle, 54 Va. App. at
514).
“In order to avail oneself of the exception, a defendant must affirmatively show that a
miscarriage of justice has occurred, not that a miscarriage might have occurred.” Melick v.
Commonwealth, 69 Va. App. 122, 146 (2018) (quoting Redman v. Commonwealth, 25 Va. App.
215, 221 (1997)). Furthermore, to demonstrate that a miscarriage of justice has occurred, “[i]t is
never enough for the defendant to merely assert a winning argument on the merits—for if that
were enough[,] procedural default ‘would never apply, except when it does not matter.’”
3
“No ruling of the trial court . . . will be considered as a basis for reversal unless an
objection was stated with reasonable certainty at the time of the ruling, except for good cause
shown or to enable this Court to attain the ends of justice.” Rule 5A:18.
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Winslow v. Commonwealth, 62 Va. App. 539, 546 (2013) (quoting Alford v. Commonwealth, 56
Va. App. 706, 710 (2010)).
Walters has failed to demonstrate that a miscarriage of justice has occurred. During the
guilt phase of the revocation hearing, the trial court admitted the letter from the Lancaster
County Commonwealth’s Attorney containing a summary of Walters’ criminal record. Walters
did not object to the court considering the letter’s recital of his criminal history, but only its
“editorializations.” Moreover, during argument at sentencing, defense counsel conceded,
Walters “has the record that he has, Judge, I can’t argue with that.” In rebuttal, and without
objection, the Commonwealth proffered Walters’ criminal history. Given the above arguments
and proffers, which include Walters’ own reference to his criminal record, we cannot say that a
manifest injustice has occurred. Walters’ criminal history plainly was relevant and admissible.
Thus, Rule 5A:18 bars our consideration of Walters’ argument.
CONCLUSION
For the foregoing reasons, the trial court’s judgment is affirmed.
Affirmed.
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