Allen Scott Wimer v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Malveaux, Raphael and Callins
ALLEN SCOTT WIMER
MEMORANDUM OPINION*
v. Record No. 1959-22-3 PER CURIAM
AUGUST 29, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WAYNESBORO
Paul A. Dryer, Judge
(Brett P. Blobaum, Senior Appellate Attorney; Virginia Indigent
Defense Commission, on briefs), for appellant.
(Jason S. Miyares, Attorney General; Angelique Rogers, Assistant
Attorney General, on brief), for appellee.
Allen Scott Wimer appeals an order of the Circuit Court of the City of Waynesboro
revoking his previously suspended sentences. On appeal, Wimer contends that the trial court
abused its discretion in sentencing him to a total of 8 years and 295 days’ active incarceration. 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).
BACKGROUND
“[W]e ‘view the evidence received at [a] revocation hearing in the light most favorable to
the Commonwealth, as the prevailing party, including all reasonable and legitimate inferences
that may properly be drawn from it.’” Green v. Commonwealth, 75 Va. App. 69, 76 (2022)
(second alteration in original) (quoting Johnson v. Commonwealth, 296 Va. 266, 274 (2018)).
“[T]he trial court’s ‘findings of fact and judgment will not be reversed unless there is a clear
*
This opinion is not designated for publication. See Code § 17.1-413(A).
showing of abuse of discretion.’” Jacobs v. Commonwealth, 61 Va. App. 529, 535 (2013)
(quoting Davis v. Commonwealth, 12 Va. App. 81, 86 (1991)).
In 2014, Wimer entered guilty pleas to two counts of possessing child pornography and two
counts of reproducing child pornography. The trial court sentenced Wimer to five years’
incarceration on each count, to run consecutively. The trial court suspended four years on each of
the possession counts and suspended three years and three months on each of the reproduction
counts. The trial court ordered Wimer to five years of supervised probation following his release
from incarceration. The trial court also ordered Wimer, upon release, to register with the Virginia
Department of State Police Sex Offender and Crimes Against Minors Registry, to follow all rules
and regulations the registry imposed, and to not have access to a computer at any time without
supervision. Wimer was placed on supervised release in 2018.
In 2020, Wimer’s probation officer submitted a major violation report alleging that Wimer
failed to follow the special instructions by possessing sexually explicit materials, having contact
with minors, and using a computer without supervision. In December 2020, the trial court found
Wimer guilty of four counts of violating his probation. On the first count, the trial court revoked the
four years of Wimer’s suspended sentence and resuspended all but 70 days. The trial court took no
further action on the remaining sentences.
In 2021, Wimer’s probation officer submitted another major violation report, again alleging
that Wimer failed to follow the special instructions by possessing sexually explicit materials and
using a computer without supervision. The trial court found Wimer guilty of four counts of
violating his probation. The trial court revoked the 3-year-and-295-day sentence and resuspended
all but one year of incarceration. On the remaining counts, the trial court revoked and resuspended
the entire sentences.
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Wimer was released from imprisonment in March 2022. In August 2022, Wimer’s
probation officer submitted a third major violation report alleging that Wimer failed to report to his
orientation appointment and failed to submit to two sexual history polygraph examinations as
required by Wimer’s sex offender treatment provider. Wimer’s probation officer removed Wimer
from group sex offender treatment therapy because Wimer reported “uncontrollable thoughts and
fantasies about young girls” and became “aroused when the other group members discuss[ed] their
crimes.” Wimer’s sex offender treatment provider reported that Wimer “was struggling in
individual treatment due to lack of engagement, constantly yawning, and zoning out.” Wimer
reported to his sex offender treatment provider that “he was still struggling with deviant sexual
fantasies of minor girls and masturbating to memories and thoughts of previous victims.”
Wimer reported to his sexual history polygraph appointment but was “unprepared,” as he
failed to complete his paperwork. Wimer informed the polygraph examiner that he “worked really
hard on his paperwork, but then stated it was incomplete beca[us]e he became too aroused by
thinking about previous victims and sexual encounters to fill it out.” Wimer was then given a
“maintenance polygraph,” but “was unable to sit still in his chair for the polygraph examiner to
hook up the equipment,” and the examiner terminated the test. Wimer’s sex offender treatment
provider terminated Wimer from treatment “for refusing to submit to these polygraphs and poor
participation in therapy.” The sex offender treatment provider met with Wimer and asked questions
that the polygraph examiner would have posed to Wimer. Wimer admitted that he had a Nintendo
Switch that could access the internet, but denied using it for that purpose. Wimer “denied any
purposeful contact with minors, but reported regular incidental contact with minors that he did not
previously address.” Wimer further stated that he masturbated to thoughts of young girls “only
once a week or so,” but his sex offender treatment provider “advised she had no way of verifying
this information because he refused to complete his polygraph tests.”
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The trial court conducted a revocation hearing on November 30, 2022, during which Wimer
conceded that he had violated probation. During the hearing, Wimer’s probation officer noted that
although Wimer was on probation for child pornography, rather than offending a child, Wimer “had
numerous hands-on child victims.” The probation officer testified that this made Wimer “especially
dangerous, given the context of the violation and the issues that he was presenting while on
probation.” At the close of the evidence, the Commonwealth asked the trial court to revoke all of
Wimer’s suspended sentences, resuspend 10 years and 6 months, and impose an active sentence of
2 years and 295 days. The Commonwealth emphasized “grave concerns about . . . Wimer being
returned to the community” based on his failure to complete his sex offender treatment program.
Wimer’s counsel asked the trial court to revoke and resuspend all but 18 months. Wimer’s counsel
argued that Wimer’s ADHD made it difficult for him to sit for a polygraph exam. Wimer’s counsel
also argued that the disclosures Wimer made during his therapy sessions were a “part of him
following through with the obligations to participate in the treatment.” During his allocution,
Wimer informed the trial court of his anxiety and depression, and he expressed willingness to
continue in treatment.
The trial court found Wimer guilty of violating probation. In pronouncing sentence, the trial
court stated that it considered the major violation report, witness testimony, counsels’ arguments,
and Wimer’s allocution. The trial court stated that it was “convinced that every day that [Wimer
was] on the street that [he was] a danger to this community.” The trial court stated that it was
inclined to revoke all of Wimer’s suspended sentences, but it found this would leave Wimer without
supervision upon release and that supervision was a “necessary element” for him. The trial court
revoked the entirety of Wimer’s previously suspended sentences and imposed an active sentence of
8 years and 295 days’ imprisonment. Wimer appeals.
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ANALYSIS
On appeal, Wimer challenges the trial court’s imposition of an 8-year-and-295-day active
sentence, arguing that the trial court abused its discretion by failing to properly weigh his
mitigating circumstances, such as his own “prior victimization and his acknowledgment of the
issues he clearly struggled with and against.”
Sentencing decisions, “if within the lawful boundaries of applicable sentencing statutes
and constitutional limitations—are vested in the sound discretion of trial judges, not appellate
judges.” Minh Duy Du v. Commonwealth, 292 Va. 555, 563 (2016). “On appeal, a revocation
decision ‘will not be reversed unless there is a clear showing of abuse of discretion.’” Price v.
Commonwealth, 51 Va. App. 443, 448 (2008) (quoting Davis, 12 Va. App. at 86). “In evaluating
whether a trial court abused its discretion . . . ‘we do not substitute our judgment for that of the
trial court. Rather, we consider only whether the record fairly supports the trial court’s action.’”
Grattan v. Commonwealth, 278 Va. 602, 620 (2009) (quoting Beck v. Commonwealth, 253 Va.
373, 385 (1997)). When making a sentencing decision, “[i]t is within the trial court’s purview to
weigh any mitigating factors presented by the defendant.” Keselica v. Commonwealth, 34
Va. App. 31, 36 (2000).
Here, the trial court expressly stated during Wimer’s revocation hearing that it considered
Wimer’s testimony and argument regarding his mitigating circumstances in the case. However,
balanced against that consideration was Wimer’s past sexual victimization of children, Wimer’s
failure to meaningfully participate in sex offender treatment during his probation, and Wimer’s
continued expression of sexual desire towards children. In light of the trial court’s finding that
Wimer presented a danger to the community, we find no abuse of discretion in the trial court’s
decision to impose an 8-year-and-295-day active sentence on Wimer for violating his probation.
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In his reply brief, Wimer argues for the first time that the trial court erred in imposing an
8-year-and-295-day active sentence because his probation violation was a second technical
violation under Code § 19.2-306.1. This Court, however, will only consider arguments made in
the opening brief. See Rule 5A:20; Palmer v. Atl. Coast Pipeline, LLC, 293 Va. 573, 580 (2017)
(refusing to consider an argument raised for the first time in the reply brief). To the extent
Wimer alleges that his sentence is void ab initio, “a challenge that an order is void ab initio . . .
may be raised only in a valid direct or collateral proceeding where the voidness of the order is
properly at issue.” Bonanno v. Quinn, 299 Va. 722, 736-37 (2021). Here, Wimer failed to argue
that his probation violation was a second technical violation under Code § 19.2-306.1 in the trial
court or in his opening brief on appeal. As such, the Commonwealth did not have the
opportunity to respond to Wimer’s new arguments in the reply brief. Since the voidness of the
trial court’s order is not properly at issue in this matter, we decline to consider the new
arguments Wimer raises in the reply brief.
CONCLUSION
For the foregoing reasons, we affirm the trial court’s judgment. We remand the matter to
the trial court for the sole purpose of correcting a clerical error in the revocation sentencing order.1
Affirmed and remanded.
1
Although the “sentence summary” at the end of the revocation sentencing order
indicates that the trial court sentenced Wimer to 2 years and 295 days’ active incarceration, the
body of the order reflects that the trial court sentenced Wimer to 8 years and 295 days’ active
incarceration. We remand to the trial court for the limited purpose of correcting this
inconsistency in the final revocation sentencing order. See Code § 8.01-428(B) (governing the
correction of clerical errors by the trial court).
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