COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, Ortiz and Lorish

LOWELL CHARLES JOHNSON MEMORANDUM OPINION *
v. Record No. 1150

- 21

- 1 PER CURIAM JULY 5, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE

Robert G. M a cDonald , Judge ( Jennifer T. Stanton , Senior Assistant Public Defender ; Indigent Defense Commission, on brief ) , for appellant. ( Jason S. Miyares, Attorney General ; Tanner M. Russo, Assistant Attorney General , on brief) , for appellee.

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)

. We affirm the decision of the
trial court.
BACKGROUND On February 6, 1998, Lowell Charles Johnson pled guilty in the Circuit Court of the City of Chesapeake (“trial court”) to one count of possession with the intent to distribute cocaine, in
violation of Code § 18.2

- 248. The trial court sentenced Johnson to ten years of imprisonment with seven years suspended for an indeterminate period upon his good behavior.

* Pursuant to Code § 17.1

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 UNPUBLISHED- 2

-

In Ju ne 2001 , a show cause order was requested because Johnson failed to report for his
schedu led probation appointments , tested positive for two urine screens, and was discharged from a substance abuse treatment group for several unexcused absences. The trial court subsequently
found Johnson in violation of his probation , revoked his suspended se ntence , and resuspended five years and six months. On August 25, 2006, a second show cause order was requested because Johnson failed to report to probation and because he moved to Indiana without prior approval. The trial court found
Johnson in violatio n of his probation , revoked his suspended sentence , and resuspended five years

. Johnson’s probation was transferred to Indiana on October 9, 2008 , but his case was “closed in error” in Indiana and transferred back to Virginia in 2010. On October 4, 2010, a third show

cause order was requested because Johnson’s probation officer learned that Johnson had failed to register as a violent sex offender i n Indiana. The trial court found that Johnson was in violation of his probation , revoked his five

- year suspended sentence , and resuspended all five years

. On September 30, 2014, a fourth show cause order was requested because Johnson’s Indiana probation officer reported that Johnson had failed to report to meetings and failed a drug

test. Consequently, a warrant for Johnson’s arrest had been issued in Indiana for failure to register
as a sex offender. The trial court found that Johnson was in violation of his probation , revoked his
five

- year suspended sentence , and resuspended all but two months. On July 31, 2017, a fifth show cause order was requested because Johnson had a blood
alcohol content leve l of .04 3 by weight by volume during a home visit. Johnson had also failed to participate in substance abuse assessment and training as well as failed to provide daily reports to his probation officer. The trial court found Johnson in violation of his pr obation , revoked his
four

- year and ten

- month suspended sentence , and resuspended all but one year and ten months.- 3

-

On December 11, 2020, Johnson’s probation officer requested a sixth show cause order
based on Johnson’s new criminal charges in the Circuit C ourt of Virginia Beach. These new charges resulted in convictions for three felony counts of failure to register as a sex offender. At the revocation hearing, the trial court stated that it had reviewed the December 11, 2020 capias , the February 23, 2018 revocation order , the July 31, 2017 Indiana probation violation report , the April 23, 2015 revocation order , the September 22, 2014 Indiana offender violation report , the February 8, 2011 revocation order , the October 4, 2010 major v iolation report for failure to register , the October 30, 2007 revocation order , the August 29, 2006 major violation report for failing to report, location unknown, and failing to register , the June 20, 2001 violation report , and the original March 12, 1998 presentence report for the underlying possession with intent to distribute charge.
Johnson proffered that he received new convictions in the Circuit Court of the City of Virginia Beach and that the new convictions were violations of his probation

. H e c laimed that he was confused about how to register as a sex offender and had failed to register. He also stated that
he was the sole caretaker o f his ten

- year
- old son and feared that he may lose custody. H e did not
want his son to “ pay [] the price ” for his poor decisions. Johnson admitted he had violated his probation.
The trial court acknowledged Johnson’s admission of guilt , and i n allocution, Johnson said
that he took “ full responsibility ” for his actions. He reiterated his confus ion about the sex offender registration procedure. He also expressed his fear of losing his son and concern for his son’s
well

- being

. Based on Johnson’s admissions and on the violation report, the trial court found
Johnson guilty of violating the terms of h is suspended sentence. The trial judge told Johnson that
the “ concerns for your son are well placed especially at this very critical age at age ten. ” The trial

court concluded , however, that, although Johnson said he was confused about the registration
process , Johnson’s failure to register as a sex offender ha d historically been a problem for him. As a- 4

-

result , the trial court revoked Johnson’s suspended sentence of three years and did not resuspend any time so that Johnson would have to se rve the remaining three years in active incarceration.
STANDARD OF REVIEW 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). “When a defendant fails to comply 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. Commonw ealth , 39 Va. App. 314, 320 (2002). “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.
ANALYSIS
Johnson argues in his assignment of error that “[t] he trial court erred in imposing a period of active incarceration of three years and further erred by failing to resuspend any part of that

sentence

. ” Johnson asserts that the trial court did not give significant weight to his mitigating
evidence. Johnson conten ds that he took responsibility for his new crimes by pleading guilty to
them , that the probation violation was not willful, and that his new convictions did not result in an injury to others. In addition, Johnson notes that he is a single parent and sole caretaker for his

ten

- year
- old son. Given these mitigating factors, Johnson argues that the trial court acted arbitrarily
when it did not resuspend any of the revoked three

- year sentence. “The statutes dealing with probation and suspension are remedial a nd 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- 5

-

(2007). By continuing to dis regard the terms of h is suspended sentence, Johnson demonstrated 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

s entenced to a term of confinement.’” Hunter v. Commonwealth , 56 Va. App. 582, 587 (2010) (quoting Price v. Commonwealth , 51 Va. App. 443, 448 (2008)). Johnson failed to make productive use of the grace that had been extended to h im for his previous conviction.
The record establishes that the trial court had sufficient cause to revoke Johnson’s suspended sentence. The evidence proved Johnson was on probation i n February 2020 when he was indicted with new charges. It is within the trial court’s purview to weigh any mitigating
factors Johnson presented , Keselica v. Commonwealth , 34 Va. App. 31, 36 (2000) , and t he trial court considered and rejected Johnson’s mitigating arguments regarding h is family circumstances and why he failed to register as a sex offender . The trial court , although acknowledg ing Johnson’s
desire to ca re for his son and not ing Johnson’s claim that he was confused about how to register
as a sex offender , concluded that failing to register had historically been a problem for Johnson

. Therefore , the trial court decided it should revoke all three years of his suspended sentence and not resuspend any time so that Johnson would actually serve the remainder of his suspended
time

— and n o longer be on probation for the 1998 conviction

. As a result, t he record establishes that the trial court had sufficient cause to revoke Johnson’s suspended sentence. Accordingly, we hold that the trial court certainly did not abuse its
discretion here

. See Alsberry , 39 Va. App. at 322 (finding the court did not abuse its discretion by imposing the defendant’s previously suspended sentence in its entirety ).
CONCLUSION
For t he foregoing reasons, we affirm the judgment of the trial court

. Affirmed.