Richard Kevin Riddick v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Humphreys, Huff and Lorish
RICHARD KEVIN RIDDICK
MEMORANDUM OPINION*
v. Record No. 0961-22-1 PER CURIAM
FEBRUARY 21, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
John W. Brown, Judge1
(Kelsey Bulger, Senior Appellate Attorney; Virginia Indigent
Defense Commission, on brief), for appellant.
(Jason S. Miyares, Attorney General; Susan Hallie Hovey-Murray,
Assistant Attorney General, on brief), for appellee.
Richard Kevin Riddick appeals the trial court’s judgment revoking his probation and
suspended sentence. Specifically, he argues that the trial court erred in finding him in violation
of Conditions 6 and 11 of his probation.2 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). Consequently, we affirm the trial court’s
judgment.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Judge Marjorie A. Taylor Arrington presided over the revocation hearing in April 2022.
Judge John W. Brown presided over the revocation and sentencing hearing in June 2022.
2
Riddick does not challenge the trial court’s determination that he violated probation
Condition 1 by committing a new criminal offense.
BACKGROUND3
In 2010, following Riddick’s convictions for possessing burglarious tools and petit
larceny, third offense, the trial court sentenced Riddick to 10 years’ imprisonment with 6 years
and 18 months suspended. The trial court also imposed 10 years of supervised probation to
follow Riddick’s release. The trial court found Riddick in violation of his probation in July 2013
based on Riddick’s new conviction for petit larceny, third offense, and in May 2014 based on
Riddick’s new conviction for concealment. Following the second violation, the trial court
revoked Riddick’s suspended sentence and resuspended 5 years and 12 months.
Riddick resumed his supervised probation in November 2016 while he was living in
Portsmouth. “Due to [his] compliance and clean urine screens,” his probation officer placed him
on “the Shadow Track self[-]report system” in September 2018. Riddick then moved to Suffolk
and reported his new address to probation. While in the Shadow Track program, Riddick was
required to call his probation officer monthly, which he did until December 2019. In April 2020,
however, his probation officer filed a major violation report (“MVR”) alleging that Riddick had
not made contact with probation since December 2019. Accordingly, probation removed
Riddick from the Shadow Track system in February 2020 and returned his supervision to
Chesapeake, the district where he was originally sentenced.
Riddick’s probation officer initially tried to contact Riddick by telephone; when those
efforts proved unsuccessful, she asked Riddick’s mother to request that Riddick contact
probation. Riddick’s mother later reported that she asked Riddick to call probation, as requested.
In March 2020, probation mailed a letter to Riddick’s last known address in Suffolk instructing
him to report in person to the probation office later that month. Riddick did not report or make
3
Under settled principles, we state the facts in the light most favorable to the
Commonwealth, the prevailing party below. Gerald v. Commonwealth, 295 Va. 469, 472
(2018).
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any other contact. The MVR therefore alleged that Riddick violated Condition 6 of his
probation—which required Riddick to follow his probation officer’s instructions—and Condition
11—which prohibited Riddick from absconding from supervision. The trial court issued a capias
for Riddick’s arrest in April 2020, which was not executed until February 2022.
In April 2022, Riddick’s probation officer filed an addendum to the MVR, alleging that
Riddick was arrested in February 2022 for possession of Schedule I or II drugs, in violation of
Condition 1 of his probation.
The trial court held a revocation hearing a few days later to address the alleged violations
of Conditions 6 and 11.4 Riddick pleaded not guilty to violating those conditions. His probation
officer testified consistent with the facts described above. She also explained that probation did
not attempt home contacts with probationers in March 2020 due to the COVID-19 pandemic.
Riddick testified that he stopped calling probation because he lost his phone, “lost all
communication,” contracted COVID-19, and “was never told where to go after the pandemic
hit.” He further testified that his Suffolk address, which was his last known address to probation,
was condemned in 2021 and that he stayed in a homeless shelter for several months before
moving back to his old address in Portsmouth. He did not report his change of address to
probation because he did not know whether to report to Portsmouth or Chesapeake and “was
waiting on somebody to let him know.” He claimed that he never received the letter sent to the
Suffolk address but insisted that probation should have tried contacting him at the Portsmouth
address or his mother’s address and that, if his mother had talked to probation, “she would have
let him know.” During argument, Riddick, through counsel, admitted that “he changed addresses
without permission” but asked the trial court “to consider dismissing the Condition 11
4
The parties did not explicitly argue whether the amendments to Code § 19.2-306(C) and
codification of Code § 19.2-306.1 applied to Riddick’s revocation hearing. Probation prepared
guidelines using the amendments to the statutory scheme governing revocation proceedings.
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absconding.” He did not ask the court to dismiss the Condition 6 violation. In allocution,
Riddick again claimed, “I’m not guilty, but I just . . . didn’t know how to get in contact with
[probation].” After expressing some exasperation with Riddick’s explanations,5 the trial court
found Riddick in violation of Conditions 6 and 11 but continued the case for sentencing due to
Riddick’s pending charge.
Riddick was convicted of the drug charge in May 2022. Accordingly, at the revocation
and sentencing hearing held in June 2022, he admitted to violating Condition 1 of his probation.
After explaining that it “d[id not] buy for a minute the story that [Riddick] got mixed up” and
that for “26 months in a row [Riddick] decided not to call in or . . . make the effort to let
[probation] know that [he] w[as] under some confusion as to whether [he] needed to report,” the
trial court revoked Riddick’s sentence and resuspended 3 years and 12 months, leaving an active
sentence of 2 years’ imprisonment. Riddick appeals.
ANALYSIS
Riddick argues on appeal that the trial court erred by finding him in violation of
Conditions 6 and 11 of his probation.6 “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
5
For example, the trial court summarized Riddick’s testimony:
All [probation] had to do was to send it to—which address? He
gave so many. . . . His mother’s address, which is somewhere,
they should have known to send it to his mother’s address. I’m
saying that sarcastically, but he really does believe that they should
have just sent it to his mother’s address. You believe that?
After defense counsel’s argument, the trial court stated, “Mr. Riddick, you have a lot of
excuses.”
6
Although Riddick contested both violations, during closing argument he asked the trial
court only to dismiss the Condition 11 violation. Nonetheless, we address Riddick’s arguments
as to both charges.
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v. Commonwealth, 75 Va. App. 69, 76 (2022) (quoting Jacobs v. Commonwealth, 61 Va. App.
529, 535 (2013)). 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). “If the
court, after hearing, finds good cause to believe that the defendant has violated the terms of
suspension, then the court may revoke the suspension and impose a sentence in accordance with
the provisions of § 19.2-306.1.” Code § 19.2-306(C). If the basis of the violation is that the
defendant committed a new criminal offense, the court may “impose or resuspend any or all of
that period previously suspended.” Code § 19.2-306.1(B).7
There is no basis to overturn the trial court’s judgment. Riddick argues that “the trial
court should have considered whether Riddick’s failure to comply with conditions [6] and [11]
was a willful one.” The record clearly shows that the trial court did so and found Riddick’s
conduct willful. At the April hearing, the trial court repeatedly expressed incredulity at what the
court termed Riddick’s “excuses.” At the June hearing, the trial court explained that it “d[id not]
buy for a minute the story that [Riddick] got mixed up.” The court particularly emphasized that
Riddick made no effort to contact probation or alleviate his alleged confusion for over two years.
Although the trial court did not explicitly use the word “willful,” its reasoning is clear and not an
abuse of discretion.8
7
The General Assembly amended Code § 19.2-306(C) and codified Code § 19.2-306.1,
effective July 1, 2021. 2021 Va. Acts Spec. Sess. I ch. 538. The Commonwealth appears to
have agreed to proceed under the new statutory scheme for purposes of Riddick’s revocation
proceeding. See Heart v. Commonwealth, 75 Va. App. 453, 463-64 (2022) (finding consent to
proceed under the amendments where the probation officer prepared guidelines relying on the
amendments and the Commonwealth did not object to application of the amendments). In any
event, because Riddick committed a new criminal offense, whether the old or new law applies
has no effect on the outcome of this appeal.
8
Moreover, trial courts are not required to state factual findings or legal conclusions
unless required to by statute. Bowman v. Commonwealth, 290 Va. 492, 500 n.8 (2015). “The
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Riddick’s reliance on Duff v. Commonwealth, 16 Va. App. 293 (1993), is unavailing. In
Duff, this Court held that the circuit court erred by revoking the defendant’s suspended sentence
for failure to pay restitution where the evidence showed that the defendant lacked the financial
ability to pay the restitution. Id. at 297-99. The evidence in this case, by contrast, did not
demonstrate that it was impossible for Riddick to comply with his probation terms, only that he
made no effort to do so. Accordingly, we find no abuse of discretion in the trial court’s decision
to revoke Riddick’s suspended sentence.9
CONCLUSION
For the foregoing reasons, we affirm the trial court’s judgment.
Affirmed.
trial court is presumed to know and correctly apply the law” absent contrary evidence. Rainey v.
Rainey, 74 Va. App. 359, 377 (2022).
9
In any event, the trial court could have revoked Riddick’s suspended sentence based on
his admitted violation of Condition 1, and Riddick does not challenge the length of his sentence
on appeal. Accordingly, any error by the trial court would be harmless.
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