COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, Chaney and Senior Judge Annunziata

ROBERT STEVEN MAXEY, JR.

MEMORANDUM OPINION*

v. Record No. 1725-22-2 PER CURIAM

OCTOBER 3, 2023

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF NEW KENT COUNTY

B. Elliott Bondurant, Judge

(Charles E. Haden, on brief), for appellant.

(Jason S. Miyares, Attorney General; Mason D. Williams, Assistant 

Attorney General, on brief), for appellee.

The trial court found Robert Steven Maxey, Jr. in violation of his probation for his 2012

convictions for possession of burglary tools and destruction of property. The trial court revoked the 

remainder of Maxey’s suspended sentences, resuspended three years and one month, imposed a 

four-year sentence of incarceration, and removed Maxey from supervised probation. Maxey 

contends that the trial court abused its discretion in (i) refusing to resuspend his entire sentence to 

allow him to participate in a drug treatment program and (ii) denying his motion to reconsider his 

sentence. After examining the briefs and record in this case, the panel unanimously holds that oral 

argument is unnecessary because “the appeal is wholly without merit.” Code § 17.1-403(ii)(a); 

Rule 5A:27(a). Accordingly, this Court affirms the trial court’s judgment.

* This opinion is not designated for publication. See Code § 17.1-413(A).

UNPUBLISHED
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BACKGROUND

“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.

Upon Maxey’s guilty pleas, the trial court convicted Maxey for possessing burglary tools 

and felonious destruction of property. By order dated July 3, 2012, the trial court sentenced him to 

incarceration for ten years with eight years and seven months suspended. The trial court ordered 

Maxey to comply with supervised probation after his release from incarceration for an indefinite 

period not to exceed ten years. 

In December 2012, the trial court found Maxey in violation of his probation for using 

alcohol while on work release. The trial court revoked Maxey’s suspended sentences and 

resuspended them. In addition to the previously-imposed probation conditions, the revocation order 

required Maxey to successfully complete the Salvation Army Program after his release from 

confinement. Upon Maxey’s motion, the trial court subsequently modified the revocation order to 

allow him to complete a program at Restoration and Wellness House instead of the Salvation Army 

Program. 

In October 2016, the police arrested Maxey for violating his probation by incurring a 

conviction for driving while intoxicated, third offense, refusing a blood or breath test, and driving 

with a revoked license, DUI-related. The trial court found Maxey in violation of his probation, 

revoked the suspended sentences, and resuspended all but one year. 

In January 2019, Maxey’s probation officer filed a major violation report (MVR) alleging

that Maxey tested positive for cocaine and alcohol, changed his residence without permission, and 

absconded from supervision. In April 2019, the trial court found Maxey in violation of his 
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probation for a third time. The trial court revoked his remaining suspended sentences of seven years

and seven months, resuspended all but six months, and ordered that he be placed in the Community 

Corrections Alternative Program (CCAP) upon his release from incarceration. 

In June 2022, Maxey’s probation officer filed an MVR alleging that he violated his 

probation by failing to report to the probation office within three days of his release from 

incarceration, missing two scheduled probation appointments, testing positive for cocaine, fentanyl, 

and methadone, and failing to enroll, as instructed, in a substance abuse treatment program with the 

Chesterfield Community Service Board. In addition, new criminal charges were pending against 

Maxey in Henrico County and Prince George County. The police arrested Maxey for the alleged 

probation violations in August 2022, and a probation revocation hearing was held in October 2022. 

At the October 2022 revocation hearing, Maxey stipulated that he was in violation of his 

probation. Maxey testified about his strong motivation to participate and succeed in the Henrico 

County Drug Court program—for which he had been found eligible in a felony drug case pending 

in Henrico County Circuit Court—and he asked the trial court not to impose an active sentence so 

that he could complete that program. Maxey testified that the CCAP program had ended three 

months early due to program restrictions related to the COVID-19 pandemic. He claimed to have 

no knowledge of the probation officer’s instruction to participate in the Chesterfield Community 

Service Board substance abuse program. He asserted that he tested positive for fentanyl because it 

was administered during his hospitalization for prostate cancer. The trial court expressed disbelief 

in this claim and found that Maxey was “untruthful with the Court.”1 The trial court found Maxey 

in violation of his probation, revoked his suspended sentences of seven years and one month, and 

resuspended three years and one month, thus imposing a four-year sentence of incarceration. 

1 After Maxey testified that fentanyl was administered to him when he was hospitalized 

for prostate cancer, the trial court asked Maxey’s counsel, “does he expect me to believe that?” 

Maxey’s counsel replied, “I don’t think hospital[s] prescribe fentanyl.”
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Maxey moved for modification of his October 2022 revocation sentence, alleging that he 

had documentation to prove that he tested positive for fentanyl because it was prescribed and 

administered by doctors during his hospitalizations. At a hearing on Maxey’s motion, Maxey 

displayed screenshots from a cell phone showing that he was given fentanyl in the hospital on 

August 24, 2021, and May 29, 2022. The trial court denied Maxey’s motion to modify his sentence, 

noting that it was Maxey’s third or subsequent probation violation and that he continued to use 

cocaine. This appeal followed.

ANALYSIS

I.

While conceding that he violated the terms of his probation, Maxey argues that the trial 

court abused its discretion in imposing a four-year sentence of incarceration. Although Maxey does 

not claim that the trial court lacked sufficient cause to revoke his suspended sentences, he contends 

that the trial court abused its discretion by failing to consider his mitigating circumstances, such as 

his motivation to succeed in the Henrico County Drug Court Program. However, the record does 

not support Maxey’s claim that the trial court failed to weigh his mitigation evidence. “Absent a 

statutory requirement to do so, ‘a trial court is not required to give findings of fact and 

conclusions of law.’” Bowman v. Commonwealth, 290 Va. 492, 500 n.8 (2015) (quoting 

Fitzgerald v. Commonwealth, 223 Va. 615, 627 (1982)). “Barring clear evidence to the contrary, 

this Court will not presume that a trial court purposefully ignored mitigating factors in blind 

pursuit of a harsh sentence.” Bassett v. Commonwealth, 13 Va. App. 580, 584 (1992). Maxey’s 

argument fails because there is no clear evidence showing that the trial court ignored his 

mitigation evidence.

The weight given to any mitigating factors presented by the defendant is within the trial 

court’s purview. Keselica v. Commonwealth, 34 Va. App. 31, 36 (2000). Therefore, this Court
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will not disturb the trial court’s judgment based on its assessment of Maxey’s claimed desire to 

participate in the drug court program. Given Maxey’s numerous probation violations, the trial 

court acted within its discretion in imposing a sentence of active incarceration within the 

statutorily-permitted range. See Code § 19.2-306(C) (“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.”).

II.

Maxey maintains that the trial court erred in denying his motion for modification of 

sentence under Code § 19.2-303. A trial court’s authority to suspend or modify an unserved 

portion of a felony sentence is restricted to situations in which the person has not yet been 

transferred to the Department of Corrections or within 60 days of such transfer. See Code 

§ 19.2-303. The statute provides that a court “may . . . suspend or otherwise modify” the 

unserved portion of a felony sentence if “there are circumstances in mitigation of the offense” 

and “it appears compatible with the public interest.” Id.; see Wilson v. Commonwealth,

54 Va. App. 631, 641 (2009). “A mitigating circumstance is ‘a fact or situation that does not 

bear on the question of the defendant’s guilt, but that is considered by the court in imposing 

punishment, esp. in lessening the severity of a sentence.” Wilson, 54 Va. App. at 641 (quoting 

Black’s Law Dictionary 260 (8th ed. 2004)).

Maxey asserts that in support of his motion to modify the revocation sentence, he 

provided evidence that he was administered fentanyl while he was hospitalized—thereby 

corroborating his testimony at the revocation hearing that the trial court found to be untruthful. 

Notwithstanding the evidence that Maxey was administered fentanyl in the hospital, the trial 

court refused to modify the revocation sentence, noting that Maxey had continued to use cocaine 

and had violated probation three or more times. Considering the totality of the facts and 
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circumstances, this Court finds no abuse of discretion in the trial court’s decision to deny 

Maxey’s motion to modify his revocation sentence.

CONCLUSION

For the foregoing reasons, this Court affirms the trial court’s judgment.

Affirmed.