William Douglas Linkenhoker, Jr. v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, O’Brien and Chaney
UNPUBLISHED
WILLIAM DOUGLAS LINKENHOKER, JR.
MEMORANDUM OPINION*
v. Record No. 0983-22-3 PER CURIAM
JANUARY 31, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BEDFORD COUNTY
James W. Updike, Jr., Judge
(Matthew L. Pack; M. Pack Law, PLLC, on brief), for appellant.
Appellant submitting on brief.
(Jason S. Miyares, Attorney General; Robin M. Nagel, Assistant
Attorney General, on brief), for appellee. Appellee submitting on
brief.
Following his guilty pleas, the court convicted William Douglas Linkenhoker, Jr. of
possession of a Schedule II controlled substance with the intent to distribute, possession of a firearm
while possessing a Schedule II controlled substance, and possession of a firearm by a nonviolent
felon. The court also found that Linkenhoker had violated the conditions of a previously suspended
sentence based, in part, on the new convictions. On appeal, Linkenhoker argues that the court
abused its discretion by sentencing him to a total of ten years and six months’ incarceration with six
years suspended for the new offenses and probation violation. After examining the briefs and
record, the panel unanimously holds that the issue has been authoritatively decided and the appeal is
wholly without merit. Code § 17.1-403(ii).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND
On appeal, we recite the facts “in the ‘light most favorable’ to the Commonwealth, the
prevailing party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022)
(quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). In doing so, we “discard the evidence
of the accused in conflict with that of the Commonwealth, and regard as true all the credible
evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.” Cady, 300
Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).
In September 2018, the court convicted Linkenhoker of possession of a Schedule II
controlled substance, possession of a Schedule II controlled substance while possessing a firearm,
and possession of a firearm by a nonviolent felon. In December 2018, the court sentenced him to a
total of five years’ incarceration with four years and nine months suspended, conditioned on good
behavior, abstaining from controlled substances, payment of court costs, and the successful
completion of two years’ supervised probation.
Linkenhoker began supervised probation in March 2019. In August 2019, he was charged
with possession of a Schedule II controlled substance with the intent to distribute, possession of a
Schedule II controlled substance while possessing a firearm, and possession of a firearm within ten
years of being convicted of a nonviolent felony. In addition, the probation officer reported that
Linkenhoker had tested positive for amphetamines or marijuana nine times and had failed to report
for testing three times. The court issued a capias for Linkenhoker’s arrest. Linkenhoker was
arrested and released on bond on December 6, 2019.
On May 19, 2020, Linkenhoker stipulated that he had violated the conditions of his
previously suspended sentence, and the court continued the matter pending resolution of the new
criminal charges. In September 2021, Linkenhoker pleaded guilty to possession of a Schedule II
controlled substance with the intent to distribute, possession of a firearm while possessing a
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Schedule II controlled substance, and possession of a firearm by a nonviolent felon.1 The court
accepted the pleas, finding they were freely and voluntarily entered.
The Commonwealth proffered that on August 2, 2019, police executed a search warrant at
Linkenhoker’s home. During the search, Linkenhoker admitted that police would find “an eight ball
of methamphetamine in an outbuilding.” Police found six grams of methamphetamine “in and
around” the home, digital scales, and packaging material. They also seized five firearms, including
one handgun in a bedroom near Linkenhoker’s identification.
Based on Linkenhoker’s pleas and the proffered evidence, the court convicted him of
possession of a Schedule II controlled substance with the intent to distribute, possession of a firearm
while possessing a Schedule II controlled substance, and possession of a firearm by a nonviolent
felon. The court continued the matter and the probation violation case for a joint sentencing hearing
and ordered Linkenhoker be evaluated for eligibility for treatment through the Community
Corrections Alternative Program (CCAP).
At the sentencing hearing, Charles Gibson, Linkenhoker’s probation officer, testified that
CCAP is designed for offenders who need more “intensive treatment . . . than what probation has
given them.” CCAP initially rejected Linkenhoker after concluding that he was at a “low risk” of
reoffending, but after speaking to Gibson, CCAP determined he would be a good candidate. Gibson
confirmed that a sentence of “CCAP in lieu of active incarceration” would be “within the guidelines
for the probation violation.” If the court ordered Linkenhoker to CCAP, the program would
evaluate his “drug problem” and determine how long he would have to participate in the program.
Linkenhoker’s wife, Debbie, testified that she and Linkenhoker had sole custody of their
grandson, and Linkenhoker was their “sole provider.” Linkenhoker also suffered from epilepsy and
1
In exchange for his pleas, the Commonwealth amended the charge alleging possession
of a firearm within ten years of being convicted of a nonviolent felony to merely possession of a
firearm by a nonviolent felon.
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had been prescribed an “opioid medication” to manage his symptoms and pain. Debbie stated that
Linkenhoker “develop[ed] an issue” with his medication, leading to his addiction to “other drugs,”
and she believed that CCAP could provide helpful treatment and instruction on “how not to want to
use again.” The child’s guardian ad litem submitted a letter to the court recommending that the
child remain in the home despite Linkenhoker’s criminal cases.
Linkenhoker asked the court to sentence him to an “appropriate” period of incarceration
“suspended after successful completion” of CCAP. Such a sentence would allow him to continue
working and caring for his grandson whereas “multiple years in the penitentiary” would “take away
from the child.” He also argued that he had been a “law abiding citizen” since March 2020. The
Commonwealth responded that this was Linkenhoker’s seventh felony sentencing event, and his
most recent offenses were identical to his prior offenses. It argued that the court should not give
weight to CCAP’s determination because its initial assessment was that Linkenhoker had a low risk
of reoffending despite his criminal history. The Commonwealth asked the court to sentence
Linkenhoker near “the middle of the sentencing guidelines”2 and “forego CCAP.”
In allocution, Linkenhoker stated that his priorities had changed since he obtained custody
of his grandson. He loved his grandson, had quit smoking for him, and claimed that he now lived in
“a different world.” He asked the court to allow him to “continue” supporting his grandson.
The court denied Linkenhoker’s request to be sentenced to CCAP and imposed a total of ten
years’ incarceration with six years suspended for the new criminal offenses. The court also revoked
and imposed six months of the suspended sentence on the probation violation. The court recognized
Linkenhoker’s desire to support his grandson and applauded his decision to quit smoking. The
court also found that Linkenhoker’s extensive criminal history included several firearm offenses
2
The discretionary sentencing guidelines recommended a sentencing range of five years,
eight months’ incarceration to nine years, three months, with a midpoint of seven years, seven
months.
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dating to 1996. The court determined that Linkenhoker had not “learn[ed]” from his “mistakes” but
had instead committed the same criminal offenses.
Linkenhoker argues that the court abused its discretion by “not properly weighing the
sentencing guidelines” and failing to sentence him to CCAP. He maintains that the sentencing
guidelines “should have been given significant weight” and the court should have been required to
explain “on the record” why it did not permit him to enter CCAP. Linkenhoker acknowledges that
under existing “case law” the court was not required to send him to CCAP and could exceed the
sentencing guidelines. Nevertheless, he maintains that there is a “good faith argument” for
extending, modifying, or reversing that case law.
ANALYSIS
“The sentencing guidelines are advisory only and do not require trial courts to impose
specific sentences.” Runyon v. Commonwealth, 29 Va. App. 573, 577-78 (1999). Accordingly, a
judge’s failure 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). Instead, “[w]e review the trial
court’s sentence for abuse of discretion.” Scott v. Commonwealth, 58 Va. App. 35, 46 (2011).
“[W]hen a statute prescribes a maximum imprisonment penalty and the sentence does not exceed
that maximum, the sentence will not be overturned as being an abuse of discretion.” Minh Duy
Du v. Commonwealth, 292 Va. 555, 564 (2016) (quoting Alston v. Commonwealth, 274 Va. 759,
771-72 (2007)). “[O]nce it is determined that a sentence is within the limitations set forth in the
statute under which it is imposed, appellate review is at an end.” Thomason v. Commonwealth,
69 Va. App. 89, 99 (2018) (quoting Minh Duy Du, 292 Va. at 565). Linkenhoker’s sentences
were within the sentencing ranges set by the legislature. See Code §§ 18.2-248, 18.2-308.2(A),
18.2-308.4.
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Regarding Linkenhoker’s probation violation, after suspending a sentence, a 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). Moreover, under the revocation statute in effect when the court considered
Linkenhoker’s violation,3 once it found that he had violated the terms of the suspension, the
court had to revoke the suspended sentence and it was in “full force and effect.” Code
§ 19.2-306(C)(ii). The court was permitted—but not required—to resuspend all or part of the
sentence. Alsberry v. Commonwealth, 39 Va. App. 314, 320 (2002). Thus, the court did not
abuse its discretion by imposing six months of Linkenhoker’s previously suspended sentence.
In fashioning a sentence, it was within the court’s purview to weigh any mitigating factors
Linkenhoker presented, including his custody of his grandson and desire to participate in CCAP so
he could continue supporting his grandson. See Keselica v. Commonwealth, 34 Va. App. 31, 36
(2000). Balanced against those factors, however, was his extensive criminal history, which included
seven felony sentencing events and repetitive firearm offenses dating to 1996. Moreover, “[t]here is
no general requirement that trial courts must state for the record the reasons underlying their
decisions,” and Linkenhoker provides no authority to support his proposition that the court should
have done so in this case. Shannon v. Commonwealth, 289 Va. 203, 206 (2015).
“Criminal sentencing decisions are among the most difficult judgment calls trial judges
face.” Minh Duy Du, 292 Va. at 563. “Because this task is so difficult, it must rest heavily on
judges closest to the facts of the case—those hearing and seeing the witnesses, taking into
account their verbal and nonverbal communication, and placing all of it in the context of the
3
Although Code § 19.2-306(C) was amended effective July 1, 2021, Linkenhoker does
not argue that the statutory amendment applied in his case. Moreover, even under the new
statutory framework the court has discretion to impose the balance of a previously suspended
sentence when, as here, a probationer commits a new offense during the suspension period. See
2021 Va. Acts Spec. Sess. I ch. 538; Code § 19.2-306.1(B).
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entire case.” Id. After considering all the circumstances, the court imposed the sentence that it
deemed appropriate. Linkenhoker’s “sentence was within the statutory range, and our task is
complete.” Thomason, 69 Va. App. at 99.4
CONCLUSION
For these reasons, the circuit court’s judgment is affirmed.
Affirmed.
4
We reject Linkenhoker’s invitation to overturn established case law. “‘[W]e are bound
by decisions of the Supreme Court of Virginia and are without authority to overrule’ them.” Vay
v. Commonwealth, 67 Va. App. 236, 258 n.6 (2017) (quoting Roane v. Roane, 12 Va. App. 989,
993 (1991)). Additionally, under the doctrine of interpanel accord, “a decision of a panel of the
Court of Appeals becomes a predicate for application of the doctrine of stare decisis until
overruled by a decision of the Court of Appeals sitting en banc or by a decision of [the Supreme]
Court.” Brown v. Commonwealth, 68 Va. App. 44, 51 n.1 (2017) (quoting Johnson v.
Commonwealth, 252 Va. 425, 430 (1996)). “This principle applies not merely to the literal
holding of the case, but also to its ratio decidendi—the essential rationale in the case that
determines the judgment.” Hutton v. Commonwealth, 66 Va. App. 714, 724 n.5 (2016) (quoting
Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 73-74 (2003)).
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