Melissa Rowe Dillon v. Commonwealth of Virginia ( 2022 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Beales, Fulton and Ortiz
MELISSA ROWE DILLON
MEMORANDUM OPINION*
v. Record No. 1139-21-3 PER CURIAM
OCTOBER 4, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Onzlee Ware, Judge
(Aaron B. Houchens, on brief), for appellant. Appellant submitting
on brief.
(Jason S. Miyares, Attorney General; Susan Brock Wosk, Assistant
Attorney General, on brief), for appellee. Appellee submitting on
brief.
Appellant, Melissa Rowe Dillon, appeals from the decision of the Circuit Court of the City
of Roanoke revoking her previously suspended sentences. Dillon contends that the trial court
abused its discretion in sentencing her to seven years of active incarceration because the sentence
was “excessive” and because the trial court failed to consider expert mitigation evidence. After
reviewing the briefs and record in this case, we affirm the decision of the trial court.
BACKGROUND
“On appeal of the revocation of a suspended sentence, the appellate court reviews the
evidence in the light most favorable to the Commonwealth, [as] the party who prevailed below.”
Jenkins v. Commonwealth, 71 Va. App. 334, 339 n.2 (2019) (citing Jacobs v. Commonwealth, 61
Va. App. 529, 535 (2013)).
*
Pursuant to Code §17.1-413, this opinion is not designated for publication.
In November 2007, the trial court convicted Dillon of three counts of embezzlement, in
violation of Code § 18.2-111. In January 2008, the trial court sentenced her to a total of fifteen
years of imprisonment, with all but twelve months suspended. Her sentences included twelve
years of supervised probation. The trial court also ordered Dillon to pay restitution in the
amount of $552,135.77. After her release from incarceration, Dillon reported to probation and
parole. The conditions of her probation included a promise to “obey all [f]ederal, [s]tate and
local laws and ordinances.”
In October 2020, Dillon’s probation officer reported that the Circuit Court of Roanoke
County had then convicted Dillon of nine more counts of embezzlement and one count of money
laundering.1 The offenses for those charges took place between May 2010 through November 2016
against two small companies for which Dillon worked following her release from serving her
sentence for her original convictions for embezzlement. In connection with those additional
charges, the circuit court sentenced Dillon to a total of fifty years of imprisonment—with forty years
suspended—and an indefinite period of supervision. The circuit court also ordered her to pay
restitution in the amount of $249,349.70. Based on the probation officer’s major violation report,
the trial court issued a rule to show cause.
At the time of the revocation hearing, “fourteen (14) years of revo[c]able time” and
approximately $540,150 in restitution payments remained outstanding in connection with Dillon’s
original charges. The probation officer testified that Dillon had “spoke[n] about pursuing a divorce
and . . . using the money that she got from the divorce to pay towards the restitution in both
1
Dillon’s probation officer also noted that Dillon had appeared before the trial court for
prior revocation hearings to address restitution payments stemming from her original convictions.
According to the probation officer, Dillon was found not to be in violation of her probation at those
prior hearings, but was to “remain under supervision for an indefinite period of time” and “make
payments of $100.00 per month until the restitution [wa]s paid in full, at which point the Court
would release her from probation.”
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matters.” In addition, she had agreed to convey “all of her rights in the equity of the marital estate
or any other real estate including reconve[y]ing a title, if necessary.” The Commonwealth rested
after introducing the probation officer’s testimony and major violation report.
Dillon testified on her own behalf and stipulated that she violated the terms of her
probation. She testified that she had been married to her husband since April 1989, and “[f]rom
the very beginning he had [her] convinced that if [she] left him, then nobody would have [her] and
he would kill [her].” She added that she suffered verbal and physical abuse from her husband “on
a daily basis” and that it “all pertained to money.” She stated that she felt under her husband’s
control and engaged in her criminal activity “to keep . . . him from abusing me.” Dillon’s
thirty-one-year-old daughter testified that she had “witnessed [Dillon’s husband] dragging [Dillon]
out of the house by her hair. He would break things often in front of us to scare us . . . . He tried to
get [Dillon] to swallow her diamond ring. Lots of screaming, yelling; threatening to kill us.”
Dillon’s daughter added that Dillon is “a good person. She made some bad decisions, but it was
because my dad was constantly controlling everything she was doing.”
In addition to oral testimony, Dillon also produced a psychological evaluation report
completed by Dr. Alice L. Twining, a licensed clinical psychologist. According to the report,
Dillon met the criteria for “[a]nxiety, [d]epression, (severe)” and “[p]ost-[t]raumatic [s]tress
[d]isorder” due to her husband’s “serious, chronic abuse, control and coercion.” Dr. Twining
recommended psychotherapy and family therapy to address Dillon’s psychological issues. Lastly,
Dr. Twining noted that “[t]he economic abuse that [Dillon] experienced explains how [her
husband] was involved in the embezzlement” but that she also “accept[ed] responsibility for her
actions and is very remorseful.” Dillon also produced a police report from January 2012
documenting an incident of domestic assault which led to her hospitalization and to husband’s
arrest.
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After considering the evidence, the trial court concluded that Dillon had violated the
conditions of her probation. The trial court revoked a portion of her suspended sentences and
imposed a sentence of seven years of active incarceration. This appeal followed.
ANALYSIS
Dillon argues that “[t]his case presents a situation in which an abused woman re-offended
out of necessity” and that the trial court erred by focusing only “on the new conviction and
impermissibly ignored Appellant’s expert mitigation evidence.” She also maintains that the trial
court wrongly rejected the psychological evaluation report completed by Dr. Twining.
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 be reversed unless there is a clear showing of
abuse of discretion.’” Jacobs, 61 Va. App. at 535 (quoting Davis v. Commonwealth, 12
Va. App. 81, 86 (1991)). “An abuse of discretion occurs only when ‘reasonable jurists’ could
not disagree as to the proper decision.” Thomas v. Commonwealth, 62 Va. App. 104, 111 (2013)
(quoting Brandau v. Brandau, 52 Va. App. 632, 641 (2008)). “This principle necessarily implies
that, for some decisions, conscientious jurists could reach different conclusions based on exactly
the same facts—yet still remain entirely reasonable.” Id. (quoting Hamad v. Hamad, 61
Va. App. 593, 607 (2013)).
The trial court heard the mitigating and aggravating evidence. The trial court considered
Dillon’s history with her husband, as well as Dr. Twining’s report. The trial court also
considered the impact on the community and businesses from which Dillon stole the money.
The trial court reasoned that there was zero chance that Dillon would ever be able to complete
her restitution payments for the approximately $500,000 she originally embezzled. Therefore,
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the trial court explained that it “owe[d] a duty to the citizens and to the company” to sentence
Dillon punitively. The trial court also emphasized that she “made no effort” to find solutions or
change the relationships in her life following the years of abuse she suffered. Ultimately, the
trial court held that Dillon’s mitigation evidence failed to overcome the fact that she continued
the same criminal behavior while working for two other companies following her release from
incarceration after serving the sentence for her original embezzlement convictions—as well as
her documented failure to make meaningful efforts to pay restitution.
The record before the trial court reflected that Dillon had violated the conditions of her
probation when she was convicted of new crimes. “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). By incurring new convictions,
Dillon demonstrated that she 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)). Dillon failed to
make productive use of the grace that had been extended to her by failing to abide by the conditions
of her suspended sentences. Having reviewed the record, we hold that the sentence that the trial
court imposed represents a proper exercise of discretion.
CONCLUSION
For the foregoing reasons, the trial court’s judgment is affirmed.
Affirmed.
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