COURT OF APPEALS OF VIRGINIA

Present: Judges Malveaux, Raphael and Callins

ROBERT LOUIS MIDGETT MEMORANDUM OPINION *
v. Record No. 1 791

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- 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 app eal is wholly without merit.” Code § 17.1

- 403(ii)(a); Rule 5A:27(a).
B ACKGROUND 1
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. Mi dgett’s supervised probation began in January 2009. In August 2012, Midgett’s probation officer

* T his 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 b e 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 UNPUBLISHED- 2

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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 p ositive for cocaine. The officer
later amended the m ajor v iolation r eport ( “ MVR ” ), adding that Midgett had been convicted for misdemeanor destruction of property and indicted for three felonies: statutory burglary, possession of burglar y tools, and larceny with the intent to sell or distribute. Midgett ple a d ed guilty to all three felon ies

. By final orders entered March 14, 2013, the trial court sentenced Midgett to 20 years’ incarceration with 17 years and 11 months suspended. The tria l court also
revoked and resuspended Midgett’s remaining sentence of three years and six months for the
2006 conviction. Midgett’s supervision re sumed in May 2017. In July 2017, his probation officer filed a n MVR alleging that Midgett had violated the t erms 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, t he trial court revoked and resuspended all of Midgett’s previously suspended sentences

. In January 2022, Midgett’s probation office r filed an other MVR alleging that Midgett
had once again violated the terms of his supervised probation

. Midgett had plead ed guilty to possessi o n of cocaine, object sexual penetration by force, and strangulation and h ad received a
sentence of 40 years’ incarceration with 19 years suspended. He had also been separately
convicted for trespass, misdemeanor destruction of p roperty, 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 conviction s
. The discretionary sentencing guidelines for the probation violations range d from one year and three months to four
years. The Commonwealth asked t he trial court to impose the entire 20 years and 17 months of- 3

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outstanding time , noting that Midgett had committed a “ very nasty” sexual offense. When th e 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 arou nd 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
expr essed 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 th e [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 sentence s
. It imposed the remaining 20 years and 17
months of Midg ett’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 [ha d ] he use d 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

. T he trial- 4

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court denied the motion to modify but thanked Midgett “for clarifying the record

. ” Midgett appeals.
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.’” 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 o nly 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 ac cordance with the provisions of § 19.2

- 306.1. ” Code § 19.2

- 306(C). And u nder Code § 19.2

- 306.1( B ), the trial court was
authorized to “impose or resuspend any or all of” the previously suspended sentence s
. 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 th ird violation on
the 2006 suspended sentence , it was his second violation on the 2013 sentences . H e 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. T hat it was only the second
violation on the 2013 suspended sentences does not render th e 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 un disputed fact that Midgett committed
a violent sexual assault.
Nor does t he 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- 5

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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 . W hen Midgett asked for lenienc y, 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 ha ving 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”).
C ONCLUSION Given Midgett’s repeated probation violati ons, 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.