Barry Samuel Camden v. Commonwealth of Virginia ( 2022 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Russell, Chaney and Callins
UNPUBLISHED
BARRY SAMUEL CAMDEN
MEMORANDUM OPINION *
v. Record No. 1056-21-3 PER CURIAM
MAY 24, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
Malfourd W. Trumbo, Judge Designate
(Scott E. Gardner, on brief), for appellant.
(Jason S. Miyares, Attorney General; Mason D. Williams, Assistant
Attorney General, on brief), for appellee. Appellee submitting on
brief.
Barry Samuel Camden appeals from the decision of the Circuit Court of Botetourt County
revoking his previously suspended sentence and imposing a one year and six-month active sentence.
He contends that the trial court abused its discretion by imposing a sentence one year above the
sentencing guidelines without explanation or cause. 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). We affirm the decision of the trial court.
BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party [below].” Poole v. Commonwealth,
73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)).
Accordingly, we discard any of appellant’s conflicting evidence, regard as true all credible evidence
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
favorable to the Commonwealth, and grant the Commonwealth all inferences that may reasonably
be drawn from that evidence. Gerald, 295 Va. at 473.
On June 11, 2015, the trial court convicted appellant of voluntary manslaughter and on
September 29, 2015, sentenced him to ten years’ incarceration with six years suspended. Appellant
was released from incarceration on August 13, 2018.
On April 8, 2021, appellant’s probation officer filed a major violation report detailing
appellant’s non-compliance with probation. The report stated that appellant had been charged with
multiple offenses, including two counts of misdemeanor assault and battery, threatening phone calls,
and extortion. The extortion charge was later amended, and appellant was convicted of using
profane language over a public airway. Finally, the report noted that appellant had not made
consistent restitution payments.
On June 10, 2021, the probation officer filed an addendum to the major violation report
advising that appellant was charged with new offenses: two counts of assault and battery of a
family member, using profane language over a public airway, and two counts of violating a
protective order. A second addendum filed on August 16, 2021, reported that appellant had been
convicted of all the charges articulated in the first addendum. Additionally, the addendum indicated
that one count of failure to obey a court order was pending.
Probation and Parole Officer Jeanine Keffer testified at the August 30, 2021 revocation
hearing that appellant had been released on parole in August 2018. After a year, he was placed on a
shadow track because he had adjusted positively to probation. He was returned to Officer Keffer’s
office, however, because he had been arrested for and ultimately was convicted of assault and
battery. Additionally, appellant had not made consistent payments toward restitution or court costs.
With the violation of the terms of the suspended sentence established, the Commonwealth
argued at sentencing that the trial court should impose the remainder of appellant’s suspended
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sentence. The Commonwealth emphasized that appellant had several violent convictions in his past
and, while on probation for voluntary manslaughter, was convicted of three additional violent
offenses. The Commonwealth argued that because appellant had received the maximum penalty on
two of those new convictions, his behavior suggested he is not a good candidate for probation.
Appellant acknowledged that he was in violation of his probation because he had new convictions,
but argued that the trial court should sentence him within the guidelines1 because they already had
taken his convictions into account both before 2015 and while on probation.
In allocution, appellant apologized for “saying vile language on the phone” and claimed that
the two assault charges never happened. He further stated that his attorney explained it was in his
best interest to take a plea deal regarding the assault charges.
After hearing argument from counsel, the trial court found appellant in violation of the terms
and conditions of his suspended sentence. The trial court revoked the suspended sentence, imposed
one year and six months of his previously suspended sentence, and placed appellant on indefinite
supervised probation following his release. In the sentencing revocation report, the trial court noted
it departed from the sentencing guidelines because there was a “short period from release to
subsequent [assault and battery] conviction.” This appeal followed.
ANALYSIS
Appellant argues that, after it found him in violation of his probation, the trial court abused
its discretion by imposing the one year and six-month active sentence. 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 v.
1
The guidelines suggested sentencing appellant from time served to six months.
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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.“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). “The court may again suspend all or
any part of this sentence for a period up to the statutory maximum period for which the defendant
might originally have been sentenced to be imprisoned, less any time already served, and may place
the defendant upon terms and conditions or probation.” Id.
Appellant does not argue that the trial court had insufficient cause to revoke his suspended
sentence. Rather, he argues that “sentencing [him] to serve one year and six months incarceration is
too harsh.” He asserts that the trial court abused its discretion when it imposed a sentence that is a
full year above the suggested guidelines without articulating a reason. He further argues that his
sentence “is excessive for a violation of probation, where the violation is a result of misdemeanor
convictions wherein [he] received maximum sentences of twelve months for each assault and
suspended time on minor charges.”
As relevant to appellant’s claim, Code § 19.2-306.1(B) provides that
[i]f the court finds the basis of a violation of the terms and
conditions of a suspended sentence or probation is that the
defendant was convicted of a criminal offense that was committed
after the date of the suspension, . . . then the court may revoke the
suspension and impose or resuspend any or all of that period
previously suspended.
The record demonstrates that appellant had incurred new criminal convictions during the suspension
period. Thus, it was within the trial court’s discretion to “impose or resuspend any or all” of the
previously-suspended sentence. It was equally within the trial court’s purview to weigh any
mitigating factors appellant presented. See Keselica v. Commonwealth, 34 Va. App. 31, 36 (2000).
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In addition, the active sentence imposed represented less than a third of the remaining six years of
suspended time that was available to the trial court. Accordingly, the sentence did not exceed the
statutory maximum, and therefore, did not constitute an abuse of discretion. See Du v.
Commonwealth, 292 Va. 555, 564-65 (2016) (explaining that a trial court acts within its discretion
when it imposes a sentence within the statutory range, thus foreclosing further appellate review).
Furthermore, contrary to appellant’s suggestion, the trial court was not obligated to explain
the specific weight it afforded to each piece of evidence. “Absent a statutory requirement to do so,
‘a trial court is not required to give findings of fact and conclusions of law.’” Bowman v.
Commonwealth, 290 Va. 492, 500 n.8 (2015) (quoting Fitzgerald v. Commonwealth, 223 Va. 615,
627 (1982)). Even so, the record reveals that the trial court here did articulate a reason for its
upward departure from the range proposed by the sentencing guidelines: it noted that there was a
“short period from release to subsequent [assault and battery] conviction.”2
“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 continuing to disregard the terms of his suspended sentence, appellant
demonstrated 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) (internal quotation marks omitted) (quoting Price v. Commonwealth, 51
Va. App. 443, 448 (2008)). Appellant failed to make productive use of the grace that had been
2
Regardless, “[t]he failure to follow any or all of the provisions of [Code § 19.2-298.01]
or the failure to follow any or all of the provisions of [Code § 19.2-298.01] in the prescribed
manner shall not be reviewable on appeal or the basis of any other post-conviction relief.” Code
§ 19.2-298.01(F).
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extended to him and continued to engage in criminal conduct during the suspension period.
Accordingly, we hold that the sentence the trial court imposed represents a proper exercise of
discretion. See Alsberry v. Commonwealth, 39 Va. App. 314, 321-22 (2002) (finding no abuse of
discretion when the trial court imposed 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”).
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. (quoting Hutto v. Davis, 454 U.S. 370,
372 (1982) (per curiam)).
CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed.
Affirmed.
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