COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Chaney, Callins and Senior Judge Petty
NEIL ANTHONY SPENCER
MEMORANDUM OPINION*
v. Record No. 1069-21-3 PER CURIAM
SEPTEMBER 27, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
J. Christopher Clemens, Judge
(J. Thomas Love, Jr., Senior Assistant Public Defender, on brief), for
appellant. Appellant submitting on brief.
(Jason S. Miyares, Attorney General; Matthew P. Dullaghan, Senior
Assistant Attorney General, on brief), for appellee. Appellee
submitting on brief.
Neil Anthony Spencer (“Spencer”) appeals the judgment of the Circuit Court of the City of
Roanoke (“circuit court”) revoking his previously suspended sentence and imposing an active
ten-year sentence.1 He asserts that the circuit court abused its discretion by failing to properly
consider the mitigating circumstances related to his old age and serious health problems. After
examining the briefs and the record, we unanimously hold that oral argument is unnecessary
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Spencer’s counsel filed a petition for appeal on his behalf, accompanied by a motion for
leave to withdraw as counsel in accordance with Anders v. California, 386 U.S. 738, 744 (1967).
Subsequently, on January 1, 2022, the amendments to Code § 17.1-407 took effect, providing
Spencer an appeal of right. On January 10, 2022, Spencer submitted a pro se filing stating his
arguments for reversal of the circuit court’s judgment. On January 14, 2022, this Court issued an
order recognizing Spencer’s appeal of right and setting a briefing schedule for the appeal. After
Spencer’s counsel filed an opening brief on his behalf, this Court granted Spencer an extension
of time to file, pro se, a supplemental opening brief. Spencer did not file any additional pro se
supplemental pleadings.
because the appeal is wholly without merit. See Code § 17.1-403(ii)(a); Rule 5A:27(a). For the
following reasons, this Court affirms the circuit court’s judgment.
BACKGROUND
In May 2001, Spencer was convicted of second-degree murder and, in September 2001,
sentenced to twenty-five years’ incarceration, consecutive to all other sentences. The circuit
court suspended thirteen years of that sentence conditioned on Spencer’s successful completion
of ten years of supervised probation. Spencer served his term of active incarceration and began
supervised probation in November 2018. In July 2020, Spencer was involved in an automobile
accident that resulted in new convictions for involuntary manslaughter and driving while
intoxicated (“DWI”). Based on those convictions, Spencer’s probation officer filed a major
violation report.
At the revocation hearing, Spencer conceded that he had entered Alford pleas to the
manslaughter and DWI charges and that he was under the influence of methamphetamine when
the automobile accident occurred. He did not dispute that he had violated the terms of his
suspended sentence but asked the circuit court to show him “mercy.” He asked the circuit court
to fashion a sentence accounting for his advanced age and need for medical treatments due to
injuries he suffered during the automobile accident. After considering the evidence and
argument by counsel, the circuit court found Spencer in violation of the conditions of his
probation and revoked ten years of his previously suspended sentence. This appeal followed.
ANALYSIS
“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
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evidence is considered in the light most favorable to the Commonwealth, as the prevailing party
below.” Id.
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). After revoking a suspended
sentence, a trial court is permitted—but not required—to re-suspend all or part of the sentence.
Code § 19.2-306(C)(ii) (Cum. Supp. 2020); Alsberry v. Commonwealth, 39 Va. App. 314, 320
(2002).
Spencer does not dispute that the circuit court had sufficient cause to find him in
violation of the conditions of his suspended sentence. Instead, he maintains that the sentence the
circuit court imposed was excessive. Spencer argues that the circuit court failed to place
sufficient weight on mitigating circumstances such as his advanced age and poor health before
imposing sentence. He emphasizes that he was nearly sixty-five years old when the circuit court
revoked his sentence. As for his health, Spencer stresses that he had undergone ten hip surgeries,
developed MRSA as a result of a hip replacement, and requires yet another hip replacement to
address “significant pain” associated with standing or walking. Spencer asserts that pain
medications other than ibuprofen and Tylenol are unavailable to him while he is incarcerated,
and his physician will not perform any additional surgeries while he is incarcerated. Further,
although he concedes that he “accepted a plea agreement” to involuntary manslaughter, he
maintains that he did so “to avoid the possibility of a more severe sentence.” Spencer contends
that the circuit court should have imposed a more lenient sentence so he could receive the
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medical treatment needed to alleviate his pain.2 While we acknowledge Spencer’s age and
health, this Court holds that the circuit court did not abuse its discretion.
The record establishes that Spencer voluntarily pleaded guilty to two new criminal
offenses during the suspension period. Because these new crimes were in violation of the
conditions of Spencer’s probation and suspended sentence, the circuit court did not err in
revoking Spencer’s suspended sentence. Subsequently, in deciding what part, if any, of that
sentence to re-suspend, it was “within the trial court’s purview to weigh any mitigating factors
presented by [Spencer],” including his age and health issues. See Keselica v. Commonwealth, 34
Va. App. 31, 36 (2000).
Although the record supports Spencer’s claim that he has a continuing need for medical
treatment, the record also demonstrates Spencer’s continuing extension of his criminal history.
Spencer admitted that he had a felony conviction for shooting someone prior to his conviction
for second-degree murder. Moreover, while on probation for second-degree murder, Spencer
was convicted of committing involuntary manslaughter and DWI. Spencer pleaded guilty to
driving a vehicle while under the influence of “high levels” of methamphetamine, resulting in a
serious car accident that killed his passenger.
Based on Spencer’s criminal history over the span of twenty years, the circuit court
determined that he was a danger to society. Therefore, after finding Spencer in violation of the
terms and conditions of his probation and suspended sentence, the circuit court ordered Spencer
to serve ten years previously suspended. Finding no clear showing that the circuit court abused
its discretion in sentencing Spencer, this Court concludes that this appeal is without merit.
2
Although Spencer states that he failed to preserve his arguments because he “did not
object to the circuit court’s revocation of the suspended sentence,” we conclude that he preserved
his arguments when he asked the circuit court to impose a lenient sentence based on his
mitigating circumstances. Accordingly, we need not address whether the application of the ends
of justice exception in Rule 5A:18 is warranted.
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CONCLUSION
Spencer’s appeal of the circuit court’s revocation sentencing order is without merit.
Therefore, this Court affirms the circuit court’s judgment and grants counsel’s motion for leave
to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967).
Affirmed.
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