COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, Friedman and Callins

MICHAEL ALLEN FAUNTLEROY MEMORANDUM OPINION * v. Record No. 0020

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- 2 PER CURIAM DECEMBER 13, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG

J. Martin Bass , Judge Designate ( James Joseph Ilijevich , on brief ) , for appellant. ( Jason S. Miyares, Attorney General ; Rebecca M. Garcia, Assistant Attorney General , on brief ) , for appellee.
Michael Allen Fauntleroy appeals the judgment of the trial court revoking his previously suspended sentence for a good behavior violation . Fauntleroy contends that the trial court abused its discretion by revoking the balance of his suspended sentence, resulting in a period of active incarceration of one year and five months. A fter examining the briefs and record in this case , the panel u nanimously 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 trial court’s judgment.
BACKGROUND “In revocation appeals, the trial court’s ‘findings of fact and judgm ent 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.

* Pursuant to Code § 17.1

- 413, t his opinion is not designated for publication. UNPUBLISHED- 2

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By final order entered February 2, 2016, the trial court convicted Fauntleroy of unlawful woundin g and sentenced him to five years of imprisonment, with three years suspended. The suspension was conditioned on five years of good behavior and five years of supervised probation. The suspended sentence was revoked and resuspended, in part, in 2017, 2018, and 2019. On April 12, 2 021, the trial court issued a capias for a reported violation of the good behavior condition of Fauntleroy’s suspended sentence, which was serve d on him on April 28,
2021. The matter was set for a bench trial on May 17, 2021, but subsequently continued to July
1 9 , 2021, on the parties’ joint motion. At the revocation hearing, Fauntleroy conceded that he had violated the conditions of his suspended sentence by failing to be of good behavior. Specifically, he had suffered new conviction s . Fauntleroy testif

ied that he had been homeless for approximately twelve years. He candidly acknowledged that he had a drinking problem and wanted to participate in alcohol treatment but there were no programs available to him in the jail. H e had previously worked with Mi cah Ministries for housing and the Community Services Board (CSB) for mental health services. He maintained that he did well in the community when he was taking his medications and felt better when he was taking them

. He committed his offenses after he stopped taking his medication s . Although he knew he should not take himself off the medications, he stated he had done so because both his mother and his aunt had passed away. He planned to resume seeking support from Mica h Ministries and the CSB upon his release and work with his probation officer to coordinate treatment and services. On cross

- examination Fauntleroy acknowledged that he had approximately a dozen prior felony convictions, including drug distribution offens es . He acknowledged that it was important to follow his treatment and the rules of probation. Fauntleroy argued that most of the convictions the Commonwealth referenced had occurred more than ten years earlier; most of his recent convictions

— many for tres passing

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were “commensurate with homelessness.” He contended that he had worked with Micah Ministries in the past, as well as the CSB. However, he cycles in and out

— in that he does well when he is in a program but that things come apart when he stops tak ing his medication s or starts drinking, or both. Fauntleroy asked the trial court to withhold a disposition to afford him an opportunity to work on a release plan with Micah Ministries and the CSB. The Commonwealth countered that Fauntleroy’s criminal hi story was “replete with violent victim crimes” and that the trespassing offenses were part of a “lengthy pattern of conduct where laws are just ignored. ”
T he trial court found that Fauntleroy had violated the good behavior requirement but granted his motio n to defer disposition. The trial court convicted Fauntleroy for the violation of the terms of his suspended sentence and continued the matter for sentencing

. When the parties appeared for sentencing, Fauntleroy presented the trial court with a proposed r elease plan, under which he agreed to work with Micah Ecumenical Ministries to secure housing and the CSB to review his medications, participate in a substance abuse evaluation, and participate in any recommended treatment. In addition, the proposed plan required Fauntleroy to cooperate fully with probation and work with his treatment providers to keep probation apprised of his participation and of his progress in treatment. Fauntleroy also committed to abstain from the use of alcohol and attend at least two AA/NA meetings per week. Fauntleroy argued that , without a plan for treatment and services in place, he would fail in the community. He was optimistic that he could succeed working with Micah Ministries because it would provide him housing with strict rules

. Fauntleroy also said that probation and CSB could then work in parallel tracks to help him because his “biggest problem” was “ the combination of mental health , or lack of mental heal th treatment, and alcohol consumption

. ” In addition, Fauntleroy argued that the “iron was hot” and that , by acting now with a structured plan , Fauntleroy could be remolded

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The Commonwealth saw little reason for optimism. Although it understood the relea se plan, it was unpersuaded that the plan would prevent Fauntleroy from committing violent crimes. The Commonwealth noted the underlying offense and that the good behavior violation was for a

new felony conviction for assault and battery of a law enforcem ent officer. In the Commonwealth ’s view, Fauntleroy had a long , consistent pattern of refusing to obey the law and of failing to make use of the services that had been offered to him in the past. Furthermore, the Commonwealth noted that Fauntleroy had be en removed from probation previously and that “ he wasn’t taking advantage” of probation when he had the opportunity.
In allocution , Fauntleroy reiterated that he was not using his medication s when he committed the new offenses. He acknowledged his alcohol problem and stated that he had never received treatment. H e was certain he could stop drinking if he had a place to stay but had been homeless for approximately twelve years. Fauntleroy st ated that he was suicidal because he could not cope with being homeless any longer

. He acknowledged his criminal history but wanted treatment or he would be “back in the same boat.” In pronouncing sentence, the trial court noted that it had considered the law and the evidence in addition to reviewing Fauntleroy’s proposed release plan. It found that the suggestion that services had not been offered to Fauntleroy was “not consistent with the evidence” or the trial court’s prior orders. The trial court was skeptical that Fauntleroy could conform to the release plan, even if it was an order of the court. After considering all the information and argument, the trial court revoked the remaining balance o f Fauntleroy’s suspended sentence of one year and five m onths. Fauntleroy appeals.
ANALYSIS 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- 5

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period of suspension fixed by the court.” Code § 19.2

- 306(A). “ When a defendant fails to com ply with the terms and conditions of a suspended sentence, the trial court has the power to revoke the suspension of the sentence in whole or in part. ” Alsberry v. Commonwealth , 39 Va. App. 314, 320 (2002).
U nder the revocation statute in effect when th e underlying revocation proceeding began, once the trial court found that Fauntleroy had violated the terms of the suspension, it was obligated to revoke the suspended sentence and the original sentence was given “full force and effect.” Code § 19.2

- 306(C)(ii) (Cum. Supp. 2020 ). 1 The trial court was permitted

— but not required

— to
resusp end all or part of the sentence. Id. ; Alsberry , 39 Va. App. at 320. Fauntleroy argues that the trial court abused its discretion “ by disregarding a proposed Service Plan designed to treat the conditions which contributed to the defendant’s violation of g ood behavior. ” He faults the trial court for expecting someone “ beset by mental health deficits, substance abuse affliction and chronic homelessness” to comply with terms of supervision and good behavior as easily as
someone who did not suffer from those impediments. H e further argues that the trial court’s “decision to revoke the balance of his previously suspended sentence was not reasonable.” The record does not support Fauntleroy’s argument. It was undisputed that Fauntleroy had violated the terms of his suspended sentence because he violated the good behavior requirement by committing new offenses. Under those circumstances, the trial court had sufficient cause to revoke the suspension and the remaining

1 Although Code § 19.2

- 306(C) was amended effective July 1, 2021, Fauntleroy 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 violation occurred and the revocation proceeding began before the effective date of the ame ndment. See Green v. Commonwealth , 75 Va. App. 69, 83

- 84 & n.4 (2022). In addition , even under the amended 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 ec . Sess. I, ch. 538; Code § 19.2

- 306.1(B).- 6

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sentence was “ in full force and effect.” See Code § 19.2

- 306 (A), (C) (Cum. Su pp. 2020)

. “A new conviction certainly constitutes good cause to revoke the suspension of a previously imposed sentence.” Booker v. Commonwealth , 61 Va. App. 323, 338 (2012)

. I n considering whether to resuspend some o r all of the revoked sentence, i t was within the trial court’s purview to weigh any mitigating factors Fauntleroy presented, including his mental health, alcohol ism , long

- term homelessness, and proffered release plan

. Keselica v. Commonwealth , 34 Va. App. 31, 36 (2000). Balanced against Fauntleroy’s mitigating evidence was his significant criminal record, which included three prior violations of the terms of the suspended sentence under review and new convictions

— including a felony conviction for assault and battery of a law enforcement officer

. In addition , the trial court expressly stated that it had considered all the evidence and arguments of counsel . The trial court found as a fact , however, that Fauntleroy’s claim that he had not previ ously been offered services was “not consistent with
the evidence and the prior orders of the Court. ” “The statutes dealing with probation and suspension are remedial and intended to give the trial court valuable tools to help rehabilitate an offender thro ugh the use of probation, suspension of all or part of a sentence, and/or restitution payments.” Howell v. Commonwealth , 274 Va. 737, 740 (2007). Considering Fauntleroy’s repeated violations of the conditions of his suspended sentence, the trial court re asonably concluded 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)). “For probation to have a deterrent effect on recidivism, real consequences must follow a probationer’s willful violation of the conditions of probatio n.” Price , 51 Va. App. at 449.- 7

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Fauntleroy failed to make productive use of the grace that had been repeatedly extended to him. Having reviewed the record, we cannot say that the trial court abused its discretion in any way in its decision under the circumstances of this case

. See Alsberry , 39 Va. App. at 321

- 22 (finding that the court did not abuse its discretion by imposing the defendant’s previously suspended sentence in its entirety “in light of the grievous nature of [the defendant’s] offenses and his continuing criminal activity”); see also Brittle v. Commonwealth , 54 Va. App. 505, 520 (2009) (affirming the court’s imposition of a five

- year sentence with three years suspended for third offense larceny because the sentence was “not exc essive on its face”).
CONCLUSION
For t he foregoing reasons, the trial court ’ s judgment is affirmed. Affirmed

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