COURT OF APPEALS OF VIRGINIA

Present: Judges Malveaux, Raphael and Callins

ROBERT LOUIS MIDGETT

MEMORANDUM OPINION*

v. Record No. 1791-22-1 PER CURIAM

AUGUST 8, 2023

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK

Matthew A. Glassman, Judge

(Kelsey Bulger, Senior Appellate Attorney; Virginia Indigent 

Defense Commission, on brief), for appellant.

(Jason S. Miyares, Attorney General; David A. Mick, Assistant 

Attorney General, on brief), for appellee.

Robert Louis Midgett challenges the sentence the trial court imposed upon the revocation 

of his previously suspended sentences. After examining the briefs and record, we affirm the trial 

court’s judgment. We unanimously hold that oral argument is unnecessary because “the appeal 

is wholly without merit.” Code § 17.1-403(ii)(a); Rule 5A:27(a).

BACKGROUND1

In 2006, following his conviction for assaulting a law-enforcement officer, Midgett was 

sentenced to five years’ incarceration with three years and six months suspended. Midgett’s 

supervised probation began in January 2009. In August 2012, Midgett’s probation officer 

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

1

“On appeal, ‘[w]e “view the evidence received at [a] revocation hearing in the light 

most favorable to the Commonwealth, as the prevailing party, including all reasonable and 

legitimate inferences that may properly be drawn from it.”’” Green v. Commonwealth, 75 

Va. App. 69, 76 (2022) (alterations in original) (quoting Johnson v. Commonwealth, 296 Va. 266, 

274 (2018)). 

UNPUBLISHED
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alleged that Midgett had violated the terms of his supervised probation by failing to maintain 

regular employment, failing to report as directed, and testing positive for cocaine. The officer 

later amended the major violation report (“MVR”), adding that Midgett had been convicted for

misdemeanor destruction of property and indicted for three felonies: statutory burglary, 

possession of burglary tools, and larceny with the intent to sell or distribute. Midgett pleaded

guilty to all three felonies. By final orders entered March 14, 2013, the trial court sentenced 

Midgett to 20 years’ incarceration with 17 years and 11 months suspended. The trial court also

revoked and resuspended Midgett’s remaining sentence of three years and six months for the 

2006 conviction. 

Midgett’s supervision resumed in May 2017. In July 2017, his probation officer filed an

MVR alleging that Midgett had violated the terms of his supervised probation by failing to attend 

substance-abuse support meetings, leaving his community residential program without 

permission, and using alcohol and cocaine several times. By orders entered November 2, 2017

and January 17, 2018, the trial court revoked and resuspended all of Midgett’s previously 

suspended sentences. 

In January 2022, Midgett’s probation officer filed another MVR alleging that Midgett 

had once again violated the terms of his supervised probation. Midgett had pleaded guilty to 

possession of cocaine, object sexual penetration by force, and strangulation and had received a 

sentence of 40 years’ incarceration with 19 years suspended. He had also been separately 

convicted for trespass, misdemeanor destruction of property, and driving without a license. 

At his revocation hearing, Midgett admitted to the probation violations, and the trial court 

revoked his remaining suspended sentences on the 2006 and 2013 convictions. The discretionary 

sentencing guidelines for the probation violations ranged from one year and three months to four 

years. The Commonwealth asked the trial court to impose the entire 20 years and 17 months of 
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outstanding time, noting that Midgett had committed a “very nasty” sexual offense. When the 

trial court asked if the sexual offense was a “forcible rape,” the Commonwealth described the 

offense as “object [sexual] penetration by penis,” a “companion” to the strangulation offense,

and a “forcible sexual assault.” 

Midgett asked the trial court to impose a sentence within the guidelines range. He noted 

that the victim of the object sexual penetration was his “girlfriend,” rather than “a stranger.” 

And “he was not on his meds around the time of the incident.” He also asked the trial court to 

consider the length of his sentences, including a 15-year sentence on one charge. Midgett 

apologized to the trial court, admitted to “mak[ing] some mistakes,” and asked for leniency. He 

expressed his desire to “get back out there and get back in the ministry and get back with [his] 

life going the way it should be going.” 

The trial court stated that Midgett “could have avoided any further incarceration if [he 

had] obeyed the conditions that the [trial c]ourt had put on” him. The court said it had “no 

reason to believe that [Midgett] would comply with any conditions of probation” if it

resuspended any portion of the remaining sentences. It imposed the remaining 20 years and 17 

months of Midgett’s suspended sentences and explained that it was “deviating from the 

[discretionary sentencing] guidelines” because it was a “third violation” that contained new 

convictions, one of which was “a violent sexual assault.” 

Midgett timely moved to suspend and modify the revocation sentences. He sought to 

clarify that he had not been “convicted of rape nor [had] he used his penis as an instrumentality” 

in the object-sexual-penetration offense. At the motion hearing, the trial court stated that in 

imposing Midgett’s sentence, it considered that Midgett was before the court on a third probation 

violation arising from a “violent sexual assault.” It noted that Midgett “digitally penetrated the 

victim,” which was still “a violent sexual assault based on the facts” of the offense. The trial 
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court denied the motion to modify but thanked Midgett “for clarifying the record.” Midgett 

appeals.

ANALYSIS

“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.’” Green v. Commonwealth, 75 

Va. App. 69, 76 (2022) (quoting Jacobs v. Commonwealth, 61 Va. App. 529, 535 (2013)). This 

Court will find an abuse of discretion only when “reasonable jurists could not differ.” Hicks v. 

Commonwealth, 71 Va. App. 255, 275 (2019).

Having found that Midgett violated the terms of his supervised probation, the trial court 

could revoke his suspended sentences and “impose a sentence in accordance with the provisions 

of § 19.2-306.1.” Code § 19.2-306(C). And under Code § 19.2-306.1(B), the trial court was 

authorized to “impose or resuspend any or all of” the previously suspended sentences.

Midgett argues that the trial court abused its discretion by improperly emphasizing that 

this was Midgett’s third probation violation. He notes that while this was his third violation on 

the 2006 suspended sentence, it was his second violation on the 2013 sentences. He also argues 

that the trial court failed to give appropriate weight to his mitigating evidence. 

We find no abuse of discretion. As Midgett acknowledges, the trial court correctly stated 

that this was Midgett’s third violation on the 2006 conviction. That it was only the second 

violation on the 2013 suspended sentences does not render the trial court’s reasoning improper,

given Midgett’s repeated failures to abide by the requirements of supervised probation. And the 

trial court considered other factors as well, including the undisputed fact that Midgett committed 

a violent sexual assault.

Nor does the record support Midgett’s contention that the trial court erred by “fail[ing] to 

attach any weight to Midgett’s mitigation evidence.” It was within the trial court’s purview to 
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weigh any mitigating factors Midgett presented. Keselica v. Commonwealth, 34 Va. App. 31, 36 

(2000). And “[b]arring 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). The trial court heard Midgett’s mitigating 

evidence. When Midgett asked for leniency, the court responded that it had no information 

before it “to believe that [Midgett] would comply with any conditions of probation.” 

“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). “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)). Midgett’s reoffending after having received 

multiple acts of grace supports the trial court’s conclusion that another such act of grace was 

unwarranted. See, e.g., Alsberry v. Commonwealth, 39 Va. App. 314, 321-22 (2009) (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”).

CONCLUSION

Given Midgett’s repeated probation violations, including a violent sexual assault, we 

cannot say that the trial court abused its discretion when it revoked the remainder of Midgett’s 

previously suspended sentences.

Affirmed.