COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Athey and Callins

RODERICK GORDON MEMORANDUM OPINION *
v. Record No. 1254

- 21

- 1 PER CURIAM AUGUST 9, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE

John W. Brown , Judge ( Kelsey Bulger, Senior Assistant Public Defender ; Virginia Indigent Defense Commission , on brief s ), for appellant

. ( Jason S. Miyares, Attorney General; Virginia B. Theisen, Senior Assistant Attorney General , on brief ), for appellee.

Roderick Gordon ( “Gordon” ) appeals the final order revoking his previously suspended

sentence s
. He asserts that the Circuit Court of the City of Chesapeake ( “ trial court ” ) abused its discretion when it imposed a sentence that exceeded the recommended sentencing guidelines. A fter examining the briefs and record in this case , the panel unanimously holds that oral argument is unnecessary because “ the dispositive ” issue in this appeal has been “ authoritatively decided, and
the appellant has not argued that the case law should be overturned, extended, modified, or
reversed. ” Code § 17.1

- 403 (ii)(b); Rule 5A:27(b)

. For the following reasons, we affirm Gordon’s convictions.
I. B ACKGROUND
In 2000 , Gordon was convicted of two counts of bur glary and two counts of grand larceny.
The trial court sentenced him to sixty years ’ incarceration , with forty

- two years suspended. I n

* Pursuant to Code § 17.1

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 UNPUBLISHED- 2

-

February 20 15 , h e was released from incarceration and began supervised probation in California.
On December 11, 2015 , Gordon ’s probation officer filed a m ajor v iolation r eport detailing Gordon ’s

non - compliance with probation. The report alleged that Gordon had been arrested on counts of burglar y, larceny , and resisting arrest in Missouri

. The trial court issued a capias on December 28,
2015 , which was executed on June 25, 2021

. On August 9, 2021, his probation officer filed an

a ddendum to the m ajor v iolation r eport noting that Gordon had been convicted of those new charges
and sentenced to twenty

- four years’ incarceration.
At the revocation hearing on October 19, 2021, Gordon did not dispute that he had received
new convictions and pled guilty to violating multiple conditions of his probation

. The trial court accepted his guilty pleas and found him in violat ion of the terms of his suspended sentence s
. The Commonwealth submitted a certified copy of Gordon ’s Missouri convictions and rested on the
record. Gordon submitted , and the court reviewed, four letters of support from family members and
friends

. Gordon testified that the State of Missouri had sentenced him to serve twenty

- four years for
his new convictions of which he served four years and seven months

. He explained that his family and support system are in California and that he expected to start a construction job in June.
Gordon stated that when he initially was released, he had difficult y adjusting to life after incarceration and made a “bad decision” when he absconded to Missouri. Gordon testified that he has been paroled from his Missouri sent ence for a year and has improved

. On cross

- examination,
Gordon stated he originally was paroled in California because his sister lived there. He admitted he absconded from probation in September 2015 and traveled to Missouri in October 2015 where he burg larized a jewelry store and was arrested several days later. The trial court asked Gordon if that
was the same t ype of crime Gordon had been convicted of in Chesapeake

. Gordon acknowledged
that he had burglarized jewelry stores in Chesapeake

. On re

- direct examination , Gordon explained- 3

-

that after serving sixteen and a half years he could not find work and was unable to communicate with his family. The Commonwealth argued that after serving sixteen years on the original charge s , Gordon
commit ted the same type of offense that he was on probation for just eight months after he was
released. The last field contact he had with probation in California was May 2015 and thereafter he

“ went right back to his old ways. ” The Commonwealth asked the trial court to sentence Gordon to no less than two years.
Gordon argued that he was forthcoming with the trial court and explained why he went to
Missouri and acknowledged the difficulty he had adjusting after he was released f rom incarceration. Now, Gordon asserted, he is in his sixties and too old to continue commit ting crimes. He asked the court to sentence him within the guidelines. In allocution , Gordon noted that he has been out on parole for one year , has done well , an d felt that he was “ going in the right direction. ”
After considering argument from counsel, the trial court summarized that Gordon “ stayed on probation for 8 months after serving 18, and then [he went] to another state, commit [ted] the
same crime [he] served 18 years for. ” The trial court noted that “ the guidelines are ridiculous, beyond ridiculous to say they were 6 months to a year. That ’ s typical now of these guidelines. ”
The court revoked the total suspended sentences, reimpo sed ten years on the first burglary charge,
and resuspended three years , re impos ed ten years on the second burglary charge, and resuspended
three years , re imposed ten years on the first grand larceny charge, and resuspended three years , and

re imposed twelv e years on the second grand larceny charge, and resuspended five years. The seven years he received on each charge will run concurrently. When it departed from the guidelines , the
trial court noted :

Guidelines too low

—underl ying offense s whe n [ defendant and ] 2 other co [ defendants ] broke into 3 jewelry stores and took bags of jewelry. Caught convicted

— sentenced to 18 years to serve

. Placed on probation in California

— but absconded 8 months later- 4

- and went to Missouri [ and ] broke into another jewe lry store ste al ing more than $25, 0 00. Rec’d 24 years to serve to tal

. A ll sentences concurrent [ and ] was released after 4 yrs and 7 mos
. [D efendant ] absconded 5 1⁄2 years. This appeal follow ed

. II. A NALYSIS “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. After suspending a sentence, a trial court “may revoke the suspension of sentence for any
cause the court deems sufficient that occu rred 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 Gordon had

v iolated the terms of the suspension, it was obligated to revoke the suspended sentence s and they

were in “full force and effect.” Code § 19.2

- 306(C)(ii) ( Cum. Supp

. 2020 ). 1 The trial court was permitted

— but not required

— to resuspend all or part of the s entence. Id. ; Alsberry v.
Commonwealth , 39 Va. App. 314, 320 (2002). Gordon contends that the trial court abused its discretion by sentencing him to seven years of active incarceration on his first probation violation. He argues that the trial court fail ed to consider his mitigating evidence, such as his age and famil ial support for his release. He further

1 Although Code § 19.2

- 306(C) was amended effective July 1, 2021, Gordon 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 , ___ & 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).- 5

-

contends that the trial court did not engage in the thoughtful exercise of discretion when it criticized the guidelines and called them “ridiculous.” He asserts that the trial court’s comments illustrate “that equity was not a consideration in [his] sentencing.” The record demonstrates, and Gordon acknowledged, that he had received new criminal convictions during the suspension period. T hus, the trial court had sufficient cause to revoke his suspended sentence s
. It was equally within the trial court’s purview to weigh any mitigating factors
Gordon presented, such as Gordon ’s age, his difficulty adjusting to society after being released f rom incarceration, and his family support when considering whether to resuspend all or part of the
revoked sentence s
. 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). Gordon accumulated new convictions of the same type for which he was already on probation

. Gordon ’s disregard of the terms of his suspended sentence s supports a finding that he
was not amendable to rehabilitation. The probation violation guidelines, like the standard sentencing guidelin es, “are not binding on the trial judge; rather, the guidelines are merely a ‘tool’ to assist the judge in fixing an appropriate punishment.” Belcher v. Commonwealth , 17 Va. App. 44, 45 (1993). Code § 19.2

- 298.01(F) precludes appellate review of whether the trial court adhered to Code § 19.2

- 298.01(B). Specifically, Code § 19.2

- 298.01(F) states that “[t]he failure to follow any or all of the provisions of [ Code § 19.2

- 298.01] in the prescribed manner shall not be reviewable on appeal or the basis of any other post

- conviction relief.” ( E mphasis added)

. S ee also West v. Dir

. of Dept. of Corr

. , 273 Va. 56, 65 (2007) (holding Virginia sentencing guidelines are discretionary); Fazili v. Commonwealth , 71 Va. App. 239, 248

- 49 (2019) (holding Code § 19.2

- 298.01(F) prohibits- 6

-

appellate review of a trial court’s failure to follow discretionary sentenci ng guidelines). In view of this broad statutory exemption from appeal, we hold that examining whether the trial court’s written explanation in the sentencing revocation report satisfies Code § 19.2

- 298.01(B) provides no basis for review on appeal. Finally , t o the extent that Gordon argues that his sentence was disproportionate, 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, 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 Amendmen t.” 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”).
III. C ONCLUSION Accordingly, we hold that the sentence the trial court imposed represents a proper exercise of its sentencing discretion. For t he foregoing reasons, the trial court ’ s judgment is
affirmed. Affirmed.