Octavian Javon Holcomb v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Chief Judge Decker, Judges Malveaux and Causey
OCTAVIAN JAVON HOLCOMB
MEMORANDUM OPINION*
v. Record No. 1328-22-2 PER CURIAM
JUNE 20, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Joseph M. Teefey, Jr., Judge
(Walter B. Harris, Assistant Public Defender II, on brief), for
appellant. Appellant submitting on brief.
(Jason S. Miyares, Attorney General; Leah A. Darron, Senior
Assistant Attorney General, on brief), for appellee. Appellee
submitting on brief.
Octavian Javon Holcomb (“appellant”) appeals from a judgment of the Circuit Court of the
City of Petersburg revoking his previously suspended sentences and imposing an active term of
incarceration of three years. Appellant contends that the circuit court failed to give appropriate
weight to the “mitigating evidence presented” and that it gave “too much weight to the sole reason
for the violation.” After examining the briefs and record in this case, the judgment of the circuit
court is affirmed.
BACKGROUND
In 2014, the circuit court convicted appellant of statutory burglary, grand larceny, and
stealing or converting a lottery ticket or prize with a value of $200 or more and sentenced him to a
total of thirty-five years in prison, with thirty-two years suspended, conditioned upon his successful
*
This opinion is not designated for publication. See Code § 17.1-413.
completion of an indefinite period of supervised probation. In May 2017, appellant’s probation
officer prepared a major violation report (MVR) informing the circuit court that appellant had tested
positive for cocaine, had changed his residence without permission, and had absconded from
probation. Following a hearing, the circuit court found appellant guilty of violating his probation
and sentenced him to “time served.” Appellant was returned to probation.
Appellant’s probation officer prepared a second MVR in September 2017 and reported that
appellant tested positive for cocaine and marijuana, that he failed to report to the “Life after Justice
Re-entry” forum as instructed, that he had changed his residence without permission, and that he
again absconded from probation. Following a hearing, the circuit court found that appellant
violated the terms and conditions of his probation and revoked and resuspended his sentences in
their entirety, conditioned upon his successful completion of the Community Corrections
Alternative Program (“CCAP”).
Appellant’s probation officer prepared a third MVR in December 2019, reporting that while
at CCAP, appellant conspired with his girlfriend to smuggle Suboxone strips into the facility and
that he had failed to obey the rules and regulations of the facility by possessing gambling tickets.
Appellant was removed from the CCAP program in December 2019, and, upon motion of the
Commonwealth’s Attorney, the violation was dismissed. Appellant was returned to probation.
In September 2021, appellant’s probation officer prepared a fourth MVR informing the
circuit court that appellant had tested positive for cocaine, fentanyl, and opiates, that he had failed to
follow his probation officer’s instructions, and that he again absconded from probation. A May
2022 addendum to the fourth MVR reported that appellant obtained a new conviction for petit
larceny in Chesterfield County and that he had pending larceny charges in both the City of Colonial
Heights and Prince George County.
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Following a hearing, the circuit court revoked appellant’s previously suspended sentences
and resuspended all except three years. Appellant was released from supervised probation and
ordered to remain of uniform good behavior for ten years. This appeal followed.
STANDARD OF REVIEW
“Whether to revoke the suspension of a sentence lies within the sound discretion of the trial
court.” Keeling v. Commonwealth, 25 Va. App. 312, 315 (1997). We will not reverse a court’s
decision “unless there is a clear showing of abuse” of that discretion. Jacobs v. Commonwealth, 61
Va. App. 529, 535 (2013) (quoting Davis v. Commonwealth, 12 Va. App. 81, 86 (1991)). “[T]he
abuse of discretion standard requires a reviewing court to show enough deference to a primary
decisionmaker’s judgment that the [reviewing] court does not reverse merely because it would have
come to a different result in the first instance.” Commonwealth v. Thomas, 73 Va. App. 121, 127
(2021) (alterations in original) (quoting Lawlor v. Commonwealth, 285 Va. 187, 212 (2013)).
[A] court abuses its discretion: “when a relevant factor that should
have been given significant weight is not considered; when an
irrelevant or improper factor is considered and given significant
weight; and when all proper factors, and no improper ones, are
considered, but the court, in weighing those factors, commits a clear
error of judgment.”
Lawlor, 285 Va. at 213 (quoting Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va.
346, 352 (2011)). “Only when reasonable jurists could not differ can we say an abuse of discretion
has occurred.” Minh Duy Du v. Commonwealth, 292 Va. 555, 564 (2016) (quoting Grattan v.
Commonwealth, 278 Va. 602, 620 (2009)).
ANALYSIS
Appellant asserts that the circuit court abused its discretion by giving inappropriate weight
to his new conviction for petit larceny and the factors “cited by the Commonwealth,” and he
complains that “[n]o weight was given to the factors cited by the defense.” We disagree with
appellant’s assertions and now affirm the circuit court’s judgment.
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“[I]n any case in which the court has suspended the execution or imposition of sentence, the
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). Indeed, “[i]t is beyond question that ‘[a] court which has ordered a suspension
of sentence undoubtedly has the power to revoke it when the defendant has failed to comply with
the conditions of the suspension.’” Russnak v. Commonwealth, 10 Va. App. 317, 321 (1990)
(second alteration in original) (quoting Griffin v. Cunningham, 205 Va. 349, 354 (1964)). In such
case, the trial court has the power to revoke the suspension of the sentence in whole or in part for
“any cause deemed by it sufficient.” Alsberry v. Commonwealth, 39 Va. App. 314, 320 (2002)
(quoting Davis, 12 Va. App. at 86). We will not reverse a trial court’s sentencing decision in the
absence of an abuse of its “judicial discretion, the exercise of which ‘implies conscientious
judgment, not arbitrary action.’” Id. (quoting Hamilton v. Commonwealth, 217 Va. 325, 327
(1976)).
The four MVRs and the addendum in this case proved that appellant repeatedly violated the
terms and conditions of his probation by continuing to use illegal substances such as cocaine,
fentanyl, opiates, and marijuana, that he repeatedly failed to follow his probation officer’s
instructions, that he regularly absconded from probation, and that he often failed to enroll in or
complete suggested remedial programs. Further, appellant was discharged from CCAP for violating
their policies and for conspiring to smuggle Suboxone into the facility. Additionally, at the time of
the final probation violation hearing in July 2022, appellant had obtained a new conviction for petit
larceny and he had pending misdemeanor and felony larceny charges in two separate jurisdictions.
On these facts, the Commonwealth’s assertion that appellant appeared to want to “be able to do
what he wants,” without being “bothered” by the constraints of probation, was not unreasonable and
clearly warranted its request for the imposition of “serious time.”
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Appellant’s claim that the circuit court failed to consider mitigating evidence is not
supported by the record. In fact, he did not present any mitigating evidence at the hearing. Rather,
appellant merely informed the circuit court that he had applied for a program of “Real Life” as well
as to the Leesburg Health Center, but then he admitted that since the five-year limit on his
supervised probation had expired, the circuit court could not extend his probation to ensure
successful completion of those programs. Appellant therefore asked the circuit court to impose an
active period of incarceration toward the low end of his sentencing guidelines, which carried a range
of punishment from one year at the low end to four years at the high end. The circuit court imposed
a three-year sentence. We do not find an abuse of discretion when a sentencing judge follows the
sentencing guidelines, which are by their very nature “intended to assist the court in fixing an
appropriate sentence.” Jett v. Commonwealth, 34 Va. App. 252, 256 (2001).
It is firmly established that “[i]f a sentence imposed is within the statutory limits fixed by the
legislature, the assumption is that the sentence will not be disturbed on appeal, and any contention
that punishment was excessive will be ‘without merit.’” Bassett v. Commonwealth, 13 Va. App.
580, 582 (1992) (quoting Satterwhite v. Commonwealth, 201 Va. 478, 483 (1960)). “The legislature
did not enact statutes authorizing suspension of all or a portion of a sentence ‘without regard to the
subsequent behavior of the defendant.’” Burnham v. Commonwealth, 298 Va. 109, 115 (2019)
(quoting Marshall v. Commonwealth, 202 Va. 217, 220 (1960)). “There would be no point to
suspending a portion of a sentence if that suspension carried no consequences.” Id. Moreover,
whereas the circuit court was required to consider appellant’s mitigating evidence (had he presented
any), it was not required to give it controlling effect. Reid v. Commonwealth, 256 Va. 561, 569
(1998). “Barring clear evidence to the contrary, this Court will not presume that a trial court
purposefully ignored mitigating factors in blind pursuit of a harsh sentence.” Bassett, 13 Va. App.
at 584.
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The circuit court, in fashioning appellant’s sentence for violating his probation, did not
improperly consider the relevant factors or give improper weight to any of the factors before it.
Thus, we find no abuse of discretion and will not disturb its ruling on appeal.
CONCLUSION
For the foregoing reasons, the circuit court’s judgment is affirmed.
Affirmed.
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