COURT OF APPEALS OF VIRGINIA
Present: Senior Judges Annunziata, Clements and Haley
UNPUBLISHED
MARK OLIVER ADKINS, JR.
MEMORANDUM OPINION*
v. Record No. 0481-22-2 PER CURIAM
SEPTEMBER 27, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY
Carson E. Saunders, Jr., Judge
(Terry R. Driskill, on brief), for appellant. Appellant submitting on
brief.
(Jason S. Miyares, Attorney General; Liam A. Curry, Assistant
Attorney General, on brief), for appellee. Appellee submitting on
brief.
Mark Oliver Adkins, Jr.’s counsel 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 Adkins with sufficient time for him to raise any matter that he
chooses. Adkins has not filed any pro se supplemental pleadings. The parties agree that “oral
argument is not necessary.” Code § 17.1-403(ii). After examining the briefs and record in this
case, we have determined that this appeal is wholly frivolous and affirm the trial court’s
judgment.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND1
In 2011, the trial court convicted Adkins on guilty pleas of two counts of distribution of
oxycodone, conspiracy to distribute oxycodone, two counts of distribution of a Schedule III
substance, distribution of cocaine, attempted distribution of an imitation substance, and
possession of marijuana. The trial court sentenced him to 150 years in prison and thirty days in
jail, with all but three years suspended.
In August 2017, the trial court revoked Adkins’s suspended sentences and resuspended
the full sentences except for time served. Adkins was found guilty in 2018 of selling stolen
property, two counts of breaking and entering, and three counts of grand larceny, for which he
received a sentence of ninety years’ imprisonment with all but six months suspended. The court
again revoked Adkins’s 2011 suspended sentences in August 2021 and resuspended the full
sentences conditioned on Adkins successfully completing the Community Corrections
Alternative Program (“CCAP”).
In October 2021, Adkins’s probation officer issued a major violation report alleging that
Adkins had attempted to smuggle Suboxone into the CCAP and had admitted to using Suboxone
every two to three days while incarcerated during the preceding three weeks. Adkins was
accordingly removed from the CCAP. The probation officer alleged that Adkins had violated
standard Condition 8—prohibiting him from unlawfully using, possessing, or distributing
controlled substances—and the special condition that he complete the CCAP program. The trial
court issued a capias to show cause in November 2021 and another capias in January 2022.
1
“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)).
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Adkins stipulated at the February 2022 revocation hearing that the probation officer’s
report was accurate, that Adkins had committed a third or subsequent technical violation,2 and
that completing the CCAP program had been a special condition of his probation. The parties
agreed that Adkins had a total suspended sentence of 236 years and six months.
Adkins proffered that he struggled with drug addiction, that he had been incarcerated
continuously in either jail or the CCAP since his previous probation violation, and that he was
participating in jail programs. Adkins asserted in allocution that he had significantly improved
in the preceding fourteen months. The Commonwealth asked the trial court to revoke “a
substantial portion” of Adkins’s suspended sentences. Adkins asked the court to revoke “a
smaller portion” but did not request a specific sentence. The trial court revoked Adkins’s
previously suspended sentences and resuspended all but four years.3 Adkins appeals.
ANALYSIS
Adkins’s sole argument on appeal is that his sentence violates the Eighth Amendment’s
prohibition against cruel and unusual punishment because it is “unnecessarily lengthy for a
probation violation.” Adkins concedes that he did not raise this issue in the trial court but asks
us to consider his argument under the ends of justice exception to Rule 5A:18.
“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. “‘The ends of justice
exception is narrow and is to be used sparingly,’ and applies only in the extraordinary situation
where a miscarriage of justice has occurred.” Conley v. Commonwealth, 74 Va. App. 658, 682
2
The Commonwealth’s attorney stated at the revocation hearing that Adkins’s previous
revocations were based on his failure to report to probation.
3
The trial court denied Adkins’s subsequent motion for modification.
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(2022) (quoting Holt v. Commonwealth, 66 Va. App. 199, 209 (2016) (en banc)). “In order to
avail oneself of the exception, [Adkins] must affirmatively show that a miscarriage of justice has
occurred, not that a miscarriage might have occurred.” Id. (quoting Holt, 66 Va. App. at 210).
The ends of justice do not excuse Adkins’s failure to preserve his argument. “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.’” Green v. Commonwealth, 75 Va. App. 69, 76
(2022) (quoting Jacobs v. Commonwealth, 61 Va. App. 529, 535 (2013)). 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). “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). If the basis of the violation is that the defendant violated a condition other
than a technical violation, the trial court “may revoke the suspension and impose or resuspend
any or all of that period previously suspended.” Code § 19.2-306.1(B). If the basis of the
violation is that the defendant committed “a third or subsequent technical violation,” the trial
court “may impose whatever sentence might have been originally imposed.”4 Code
§ 19.2-306.1(C).
Adkins argues that his sentence violates the Eighth Amendment because it is
disproportionate to his probation violation. It is well established that we will not engage in a
4
The General Assembly amended Code § 19.2-306(C) and codified Code § 19.2-306.1
effective July 1, 2021. 2021 Va. Acts Sp. Sess. I, ch. 538. Those amendments apply because
Adkins violated his probation after July 1, 2021 and the revocation proceedings began after July
1, 2021. Green, 75 Va. App. at 84 n.4. The parties agree that Adkins committed a third or
subsequent technical violation and violated a non-technical special condition. Accordingly,
Code § 19.2-306.1 permitted the trial court to impose up to the entirety of Adkins’s suspended
sentences.
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proportionality review in cases that do not involve life sentences without the possibility of
parole.5 Cole v. Commonwealth, 58 Va. App. 642, 653-54 (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”). Accordingly, Adkins has failed to demonstrate that a miscarriage of
justice has occurred, and the ends of justice do not excuse his failure to preserve his argument in
the trial court.
CONCLUSION
For the foregoing reasons, 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 Mark
Oliver Adkins, Jr. is now proceeding without the assistance of counsel in this matter and is
representing himself on any further proceedings or appeal.
Affirmed.
Adkins’s reliance on Solem v. Helm, 463 U.S. 277 (1983), is therefore misplaced, as the
5
defendant in that case received a life sentence without the possibility of parole for uttering a
$100 “no account” check. 463 U.S. at 281-82.
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