COURT OF APPEALS OF VIRGINIA

Present: Judges O’Brien, Lorish and Senior Judge Annunziata 

DUSTIN W. FOLTZ, S/K/A

DUSTIN WILLIAM FOLTZ

MEMORANDUM OPINION*

v. Record No. 0779-21-4 PER CURIAM

JULY 5, 2022

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PAGE COUNTY

Clark A. Ritchie, Judge

(Richard G. Morgan, on brief), for appellant. Appellant submitting 

on brief. 

(Jason S. Miyares, Attorney General; John Beamer, Assistant 

Attorney General, on brief), for appellee.

The appellant, Dustin William Foltz, argues that the circuit court abused its discretion by 

revoking his suspended sentences and sentencing him to five years of active incarceration. 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). 

For the reasons set forth below, we affirm the decision of the trial court.

BACKGROUND1

The trial court convicted Foltz of unlawful wounding in 2008 and sentenced him to five 

years’ imprisonment with four years and ten months suspended and three years of supervised 

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 

1

“On appeal of the revocation of a suspended sentence, the appellate court reviews the 

evidence in the light most favorable to the Commonwealth, the party who prevailed below.” 

Jenkins v. Commonwealth, 71 Va. App. 334, 339 n.2 (2019) (quoting Jacobs v. Commonwealth, 61

Va. App. 529, 535 (2013)).

UNPUBLISHED 
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probation. In 2010, Foltz was convicted for driving while intoxicated, third or subsequent offense. 

The trial court revoked his previously suspended sentence and imposed a sentence of five years’ 

imprisonment with four years and five months suspended and three years of supervised probation. 

Next, in 2015, Foltz appeared before the trial court for his second probation revocation 

hearing. The trial court found him in violation of his probation, revoked his suspended sentences, 

and resuspended seven years and nine months. In 2016, Foltz was convicted for driving while 

intoxicated, third or subsequent offense within five years, unauthorized use of a motor vehicle, hit 

and run, and operating a motor vehicle after forfeiture of license. The trial court again revoked his

previously suspended sentences and sentenced him to a total of fifteen years and twelve months’ 

imprisonment with fourteen years and twelve months suspended and four years of supervised 

probation. 

Foltz returned to the trial court in 2019 for his fourth revocation hearing. The trial court 

found him in violation of probation, revoked his previously suspended sentences, and resuspended 

twenty years and six months. Foltz appeared for a fifth probation revocation hearing in 2020. The 

trial court found him in violation of probation and revoked the entirety of his suspended sentences

and resuspended all except for time served. He was placed on three years supervised probation. 

The ongoing conditions of Foltz’s probation included a promise to “obey all [f]ederal, [s]tate and 

local laws and ordinances.” 

In September 2020, Foltz’s probation officer reported to the trial court that Foltz had been 

arrested for possession of a firearm by a violent felon.2 After issuing a capias, the trial court 

conducted appellant’s sixth revocation hearing on June 2, 2021, which is the subject of this appeal. 

2 Foltz subsequently pled guilty to this offense, and the trial court sentenced him to five 

years’ imprisonment with three years suspended and three years of supervised probation. 
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At the revocation hearing, the chaplain for the Page County jail testified on behalf of Foltz, 

stating that he had hired Foltz to work on his farm following Foltz’s release from incarceration. 

According to the chaplain, Foltz’s work ethic was “one of the best [he had] ever seen.” The 

chaplain denied ever feeling “unease” with Foltz working on his farm with the chaplain’s wife 

present, despite Foltz’s prior conviction for unlawful wounding. The chaplain stated that he never 

found evidence of Foltz abusing drugs or alcohol while working on the farm. The chaplain also 

testified that he “definitely would” hire Foltz to return to work on his farm and that incarceration did 

Foltz “no good, he needs to be out working.” 

Foltz also testified at the revocation hearing. He acknowledged his prior convictions, as 

well as his new conviction, and stated that he was now “just trying to be a better person all the way 

around, doing what I need to do, work maintain, you know and just do what needs to be done.” He

denied using alcohol or drugs while on probation. As part of his punishment for a past revocation, 

Foltz attended Community Corrections Alternative Program (CCAP) but was unable to complete 

the program due to a medical condition causing seizures. As of the date of the revocation hearing, 

Foltz was still ineligible for CCAP due to his ongoing medical condition. 

After considering the evidence and the parties’ arguments, the trial court found Foltz in 

violation of his probation, revoked the suspension of his remaining time, and resuspended all but 

five years of his sentence. This appeal followed.

ANALYSIS

Foltz argues that the trial court abused its discretion when it sentenced him to a total of five 

years’ incarceration following his sixth probation violation. 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 revocation appeals, the trial court’s ‘findings of fact and judgment will not 
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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)). 

An abuse of discretion . . . can occur in three principal ways: when a 

relevant factor that should have been given significant weight is not

considered; when an irrelevant or improper factor is considered and 

given significant weight; and when all proper factors, and no 

improper ones, are considered, but the court, in weighing those 

factors, commits a clear error of judgment. 

Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 352 (2011).

Foltz acknowledged that he has had numerous probation violations since his first conviction 

for unlawful wounding in 2008. Nevertheless, he argues that the trial court’s decision to impose a 

five-year active sentence “was an arbitrary abuse of the [t]rial court’s discretion in consideration of 

the testimonial evidence before it.” 

Far from being arbitrary, the court reviewed in detail Foltz’s thirteen-year history with the 

court, summarizing each of his prior probation violations. In particular, the court explained that 

during Foltz’s fifth probation violation hearing the court had stated: 

you gotta just make sure you focus so hard on not violating your 

probation again because it looks like it would be your fourth or fifth 

violation if you came back and you have a lot of time over your 

head. . . . Please, please focus this time, no one wants to see you 

have to serve that time but you know the options are running out. 

The trial court also carefully considered the mitigating evidence Foltz provided, noting that he had 

done a good job with CCAP, and took time to understand why Foltz was no longer able to 

participate in CCAP. The trial court explained his CCAP ineligibility was “not [his] fault” and that 

“I just want to know in fairness to this man . . . what the options are on the table.” The court noted 

that Foltz “can be very productive” and that he has “an extraordinarily high work ethic which is to 

be commended.” 

Ultimately, the court weighed the mitigating and aggravating evidence, which included that 

Foltz had incurred new criminal convictions. In announcing the sentence, the trial court explained 
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that a five-year active sentence for this sixth violation still represented “less than one-third of the 

time before the Court that it could’ve revoked.” The weight to assign to any mitigating factors 

appellant presented was within the trial court’s purview. See Keselica v. Commonwealth, 34 

Va. App. 31, 36 (2000). We cannot say that the trial court abused its discretion in imposing a 

five-year sentence. 

Moreover, to the extent that appellant argues that his sentence was disproportionate, this 

Court declines to engage in a proportionality review in cases that do not involve life sentences 

without the possibility of parole. Cole v. Commonwealth, 58 Va. App. 642, 653-54 (2011). We 

noted in Cole that the Supreme Court of the United States “has never found a non-life ‘sentence 

for a term of years within the limits authorized by statute to be, by itself, a cruel and unusual 

punishment’ in violation of the Eighth Amendment.” Id. at 653 (quoting Hutto v. Davis, 454 

U.S. 370, 372 (1982) (per curiam)). Cf. Vasquez v. Commonwealth, 291 Va. 232, 243 (2016) 

(rejecting Eighth Amendment challenge to 133-year active sentence because the sentence was 

imposed for “eighteen separate crimes”).

CONCLUSION

For the foregoing reasons, the trial court’s decision is affirmed.

Affirmed.