Ricky Lee Motley v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Beales, Ortiz and Causey
RICKY LEE MOTLEY
MEMORANDUM OPINION*
v. Record No. 0872-22-3 PER CURIAM
JANUARY 31, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
Stacey W. Moreau, Judge
(Gregory T. Casker, on brief), for appellant.
(Jason S. Miyares, Attorney General; Craig W. Stallard, Senior
Assistant Attorney General, on brief), for appellee.
Ricky Lee Motley appeals from the judgment of the trial court revoking his previously
suspended sentences and imposing two years and ten months of active incarceration. He asserts
that the trial court’s sentencing decision constituted an abuse of discretion because it failed to
consider his “efforts to maintain a home and his health while suffering from cancer.” After
examining the briefs and the record in this case, we find that the evidence demonstrates that the
trial court considered evidence that Motley made efforts to comport with the terms of his
suspension but ultimately concluded that he violated several of the terms of his suspension
warranting reinstatement of his sentences. The trial court did not abuse its discretion, and as
such we affirm the trial court’s judgment. Furthermore, 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).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND
“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.’” Jacobs v. Commonwealth, 61
Va. App. 529, 535 (2013) (quoting Davis v. Commonwealth, 12 Va. App. 81, 86 (1991)). “The
evidence is considered in the light most favorable to the Commonwealth, as the prevailing party
below.” Id.On November 2, 2011, the trial court convicted Motley of three counts of forgery, three
counts of uttering a forged check, and three counts of petit larceny. The trial court sentenced
him to fifteen years and thirty-six months of incarceration, with all but three years suspended.
Motley was released from incarceration in August 2014 and reported to probation but by March
2015, he had reoffended. In addition, according to his probation and parole officer, Motley “had
absconded from supervision” such that his whereabouts were unknown to his probation officer.
Consequently, the trial court revoked and resuspended a portion of Motley’s sentences. Upon his
release in 2017, Motley was convicted of grand larceny and driving on a revoked license. The
trial court again revoked and resuspended a portion of Motley’s sentences. In January 2021, the
trial court found that Motley had violated his probation by using cocaine. It again revoked his
previously suspended sentences of ten years and forty-four months and resuspended all of his
sentences except the twenty-seven days served.
On March 23, 2021, Motley returned to supervised probation. Beginning May 2021, his
probation officer could not reach him by phone. In August 2021, Motley missed an appointment
with his probation officer. When his probation officer finally spoke to him in September 2021,
Motley stated that he was on his way to the hospital. Motley’s probation officer instructed him
to call when he was released from the hospital, but Motley never communicated with the
probation office. In October 2021, Motley moved out of his apartment without notifying the
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probation office and did not provide a forwarding address. After his probation officer confirmed
that Motley was not hospitalized, incarcerated, or dead, he filed a major violation report on
November 29, 2021, alleging Motley failed to follow his probation and parole officer’s
instruction (Condition 6), had failed to obtain his probation and parole officer’s permission to
change his residence (Condition 10), and had absconded from supervision such that his
whereabouts were unknown (Condition 11).
At the revocation hearing, Motley admitted that he had violated the terms of the
suspension and asked that the trial court impose a sentence at the “low end” of the sentencing
guidelines or that he be held locally. Motley admitted that “nothing [had] changed” concerning
his cancer condition since his release in January 2021. He testified that his girlfriend had been
evicted from her apartment, but admitted that he was responsible for staying in touch with his
probation officer. At the conclusion of the evidence, Motley stressed that he was not offering
evidence of his poor health as an “excuse” for his violations, but rather to provide the trial court
with “some background as to . . . his current health.” He noted that before he was hospitalized
he was “doing okay” with reporting.
The trial court found it “unbelievable” that Motley was before the court for a fourth
probation violation. The court found that Motley moved without permission, absconded, was
untruthful and could not follow instructions. The trial court emphasized that Motley had been
sentenced to time served for his last violation in consideration of his medical issues, despite the
sentencing guidelines recommending up to two years of incarceration. The trial court found that
Motley had not been “following through with probation . . . for years.” The court found Motley
in violation, revoked the balance of his previously suspended sentences, resuspended seven
years, four months, and three days, and imposed two years and ten months of active
incarceration. Motley appeals the revocation of his previously suspended sentences.
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ANALYSIS
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).1 Upon “find[ing] good cause
to believe that the defendant has violated the terms of suspension,” the trial court has authority to
“revoke the suspension and impose a sentence in accordance with the provisions of
§ 19.2-306.1.” Code § 19.2-306(C). “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.’”
Jacobs, 61 Va. App. at 535 (quoting Davis, 12 Va. App. at 86).
Motley does not dispute that the trial court had sufficient cause to find him in violation of
the conditions of his suspended sentences. Instead, he maintains that the sentence the trial court
imposed was excessive because it “ignore[d] [his] efforts and labors to comply with the
conditions of his probation despite being evicted from his place of residence for no fault of his
own and being actively treated for serious physical conditions; namely, cancer, COPD and
asthma.” Motley asserts that the trial court’s sentence failed to consider that he was “trying to
deal with a debilitating and deadly disease.” We find no abuse of the trial court’s sentencing
discretion.
The record demonstrates that Motley had previously absconded from supervision in 2015.
At his most recent revocation hearing in 2022, the court found Motley violated his probation
again by absconding from supervision for a second time. Under Code § 19.2-306.1(C), a first
technical violation based on Code § 19.2-306.1(A)(x), failing to maintain contact with the
probation officer, shall be considered a second technical violation, and any subsequent technical
1
Code § 19.2-306(A) was amended effective July 1, 2021, but Motley does not argue that
the statutory amendment governs his case.
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violation also based on subsection (A)(x) shall be considered a third or subsequent technical
violation. Accordingly, the trial court was entitled to revoke his previously suspended sentences
and to “impose or resuspend any or all of that period previously suspended.” Code
§ 19.2-306.1(B); see also Code § 19.2-306.1(C) (“The court may impose whatever sentence
might have been originally imposed for a third or subsequent technical violation.”). In deciding
what part, if any, of those sentences to resuspend, it was within the trial court’s purview to weigh
any mitigating factors Motley presented, including his poor health. See Keselica v.
Commonwealth, 34 Va. App. 31, 36 (2000). The record demonstrated that Motley’s adjustment
to supervised probation had been poor. Motley reoffended within months of his most recent
release and, despite receiving lenient treatment on his prior violations, he committed a new
offense, as well as absconding from supervision. When he appeared before the trial court, he had
three prior probation violations.
“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). Motley’s disregard of the terms of his suspended sentences supports a finding that he was
not amenable to rehabilitation. “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)).
Motley did not make productive use of the trial’s courts repeated acts of grace; instead, he
continued to commit offenses. “For probation to have a real deterrent effect on recidivism, real
consequences must follow a probationer’s willful violation of the conditions of probation.” Price,
51 Va. App. at 449. After reviewing the record in this case, we conclude that the sentence the trial
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court imposed represented such real consequences and was a proper exercise of judicial discretion.
See Alsberry v. Commonwealth, 39 Va. App. 314, 321-22 (2002) (finding 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
Accordingly, we affirm the trial court’s judgment.
Affirmed.
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