COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, O’Brien and Chaney Argued at Lexington, Virginia

MICHAEL A. HULLINGS MEMORANDUM OPINION * BY v. Record No. 0758

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- 3 JUDGE VERNIDA R. CHANEY MAY 16, 2023 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY

Bruce D. Albertson , Judge (Tara M. Senn ; David L. Parker, P.C. , on brief ) , for appellant. Appellant submitting on brief. Susan Hallie Hovey

- Murray, Assistant Attorney General ( Jason S. Miyares , Attorney General, on brief) , for appellee.
Michael A. Hullings appeals the trial court’s order revoking his previously suspended

sentence s . Hullings contends that the trial court abused its discretion in imposing combined

sentence s of 5 years and 30 months , vastly exceed ing the sentencing guidelines

. Finding no abuse of discretion, t his Court affirms the trial court’s judgment.
BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party” in the trial court. McGowan v. Commonwealth , 72 Va. App. 513, 516 (2020) (quoting Gerald v. Commonwea lth , 295 Va. 469, 472 (2018)).

* T his opinion is not designated for publication. See Code § 17.1

- 413. UNPUBLISHED- 2

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In 2013, Hullings pleaded guilty, under the terms of an agreed disposition, to attempted bodily injury of a police officer, child endangerment, brandishing a firearm, destruction of property, possession of a firearm after i nvoluntary commitment, and obstruction of justice. Consistent with the agreed disposition, the trial court sentenced Hullings to a total of 10 years and 48 months ’ incarceration , with 8 years and 48 months suspended. In 2015 and again in 2019,
the trial c ourt revoked Hullings’s suspended sentences due to violations of the terms and conditions of his probation and suspended sentences, and the trial court re

- suspended the sentences, in part.
I n June 2021 , Hullings returned to supervised probation and resumed using drugs almost immediately. In March 2022, Hullings’s probation officer reported that Hullings had repeatedly tested positive for amphetamines or methamphetamine and had admitted using other drugs

. Hulling s disregarded his probation officer’s instruction to enroll in substance abuse counseling. Hullings also failed to pay court costs. 1 When Hullings was arrested on the instant probation
violation charge , he was initially non - compliant with law enforcemen t officers , but he eventually complied

. At the revocation hearing, the probation officer’s major violation report and addendum
were admitted into evidence. The Commonwealth asked the trial court to revoke Hullings’s suspended sentence s and remove him fro m probation. The Commonwealth noted that Hullings had a consistent history of positive drug screens , had tested positive for amphetamines and methamphetamine , and had failed to cooperate with the probation officer or participate in any

treatment. In mitigation, Hullings testified that he suffered from mental health disorders, including bipolar disorder with psychosis, schizoaffective disorder, and anxiety. He also had diabetes.

1 Hullings had made one payment since his release from incarceration.- 3

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Hullings stopped taking his prescription medications for about a mont h and, instead,
self

- medicated with illicit substances. He claimed he now appreciated the importance of taking the
medic ine s his doctor had prescribed. Upon his release from incarceration, Hullings planned to take drug and alcohol classes through the Com munity Services Board . Hullings wanted to change for
the sake of his grandchildren and to care for his elderly grandmother

. During his allocution, Hullings acknowledged that he had committed the probation
violation . He contended that he should receive tr eatment for his mental health illness instead of
incarceration

. Hullings asked the trial court to give him one more chance and to impose a sentence within the recommended sentencing guidelines , between three months and one year of
incarceration.
T he tria l court found that Hullings had violated the terms and conditions of his probation
and suspended sentence s . The trial court noted that this was Hullings’s third revocation since his 2013 convictions for very serious charges. The trial court found that Hullings had shown “significant aggression” towards law enforcement officers who arrested him . After considering the history of the case and the risk Hullin gs presented to the community, the trial court revoked the entirety of Hullings’s suspended sentence s . In A pril 2022 , Hullings filed a motion to reconsider . At the hearing on the motion for reconsideration, Hullings argued that the trial court should no t have imposed the sentence that far
exceeded the sentencing guidelines because the guidelines provided an appropriate sanction. 2 In denying the motion, t he trial court found that this was Hullings’s third technical violation . The trial
court noted that Hullings’s continued non

- compliance with the terms and conditions of his

2 Hullings further argued that the trial court erred in treating his violation as a “special condition” violation when it was appropriate to treat it as a “technical violation.” However, Hullings did not assign error to the trial court ’s decision to treat h is probation violation as either a nontechnical violation or a third technical violation.- 4

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probation , along with his statements to his probation officer, demonstrated that Hullings was a risk to the community.
ANALYSIS “On an appeal of a probation revocation, the trial co urt’s ‘findings of fact and judgment will not be reversed unless there is a clear showing of abuse of discretion.’” Heart v. Commonwealth , 75 Va. App. 453, 460 (2022) (quoting Green v. Commonwealth , 75 Va. App. 69, 76 (2022)). Subject to certain conditio ns, 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). In this case, the trial court had the authority to “impose whatever sentence might have been originally imposed” after finding Hullings in violation of a third technical violation. Code § 19.2

- 306.1(C). Hullings contends that the trial court abus ed its discretion by revoking and imposing the balance of his suspended sentence s. Hullings asserts that the trial judge a rbitrarily decided that the guidelines were inappropriate based on his prior record of failure to comply with probation

. We disagree

. “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.” H owell v. Commonwealth , 274 Va. 737, 740 (2007). Further, the probation violation guidelines, like the standard sentencing guidelines, “are not binding on the trial judge; rather, the guidelines are merely a ‘tool’ to assist the judge in fixing an appropri ate punishment.” Belcher v. Commonwealth , 17 Va. App. 44, 45 (1993). A judge’s
decision not to follow the sentencing guidelines “shall not be reviewable on appeal or the basis of any other post

- conviction relief.” Code § 19.2

- 298.01(F)

. 3 Accordingly, we consider only

3 Although not controlling here, we note that, effective July 1, 2022, Code § 19.2

- 306.2(D) likewise expressly provides that failure to follow the provisions for the revocation guidelines “shall not be reviewable on appeal.”- 5

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whether the sentence imposed represents an abuse of the trial court’s broad sentencing discretion upon revocation of the suspended sentence s . See Clarke v. Commonwealth , 60 Va. App. 190, 199 (2012). Upon review, this Court finds no abuse of the trial court’s discretion. In addition to finding that Hullings was non - complian t w ith the terms and conditions of his probation , the trial court found that Hullings had shown “significant aggression” towards law enforcement officers.
Con sidering the seriousness of the underlying offenses and Hullings’s repeated probation viol ation s , the trial court found that Hullings ’ s continued liberty would be a danger to the community. Considering the facts and circumstances of this case, this Court holds that the trial court did not
abuse its discretion in revoking the balance of Hullings’s previously suspended sentence s . CONCLUSION Finding no abuse of the trial court ’s s entencing discretion, this Court affirms the trial court’s judgment. Affirmed.