Michael Lee Guy v. Commonwealth of Virginia ( 2024 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Malveaux, Friedman and Lorish
UNPUBLISHED
MICHAEL LEE GUY
MEMORANDUM OPINION*
v. Record No. 1218-23-4 PER CURIAM
OCTOBER 29, 2024
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF RAPPAHANNOCK COUNTY
James P. Fisher, Judge
(Anna Cox, Assistant Public Defender, on briefs), for appellant.
(Jason S. Miyares, Attorney General; Liam A. Curry, Assistant
Attorney General, on brief), for appellee.
In June 2023, the Circuit Court of Rappahannock County revoked Michael Lee Guy’s
suspended sentences in their entirety and resuspended all but 16 years and 6 months’
incarceration. Guy now appeals, asserting that the trial court abused its discretion by admitting
testimony about a criminal conviction that was not the basis for the revocation. Additionally, he
contends that the trial court abused its sentencing discretion by placing undue weight on this
testimony. For the following reasons, we affirm the trial court’s judgment.1
*
This opinion is not designated for publication. See Code § 17.1-413(A).
1
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).
BACKGROUND2
In 2006, Guy was convicted of six counts of statutory burglary, three counts of grand
larceny, and two counts of larceny, third or subsequent offense. By final order entered February 8,
2007, the trial court sentenced him to 30 years’ incarceration with 23 years suspended. Guy’s
supervised probation commenced on August 12, 20223; the probation officer filed a major violation
report (MVR) on February 28, 2023, alleging that Guy was arrested for extortion in Culpeper
County on August 23, 2022.4 Guy’s arrest stemmed from the “multiple threats of [death and]
bodily harm” he sent to his wife in February 2022, while he was still serving his underlying
sentence. A Culpeper County jury convicted Guy in January 2023.
On October 11, 2022, while incarcerated for extortion, he was charged with assaulting a law
enforcement officer. In December 2022, the Culpeper General District Court convicted Guy of the
amended charge of misdemeanor assault and battery. The MVR listed the assault and battery
conviction as the basis for Guy’s probation revocation hearing.5
2
“On appeal, ‘[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) (quoting Johnson v. Commonwealth, 296 Va. 266, 274 (2018)). “On an
appeal of a probation revocation, the trial court’s ‘findings of fact and judgment will not be reversed
unless there is a clear showing of abuse of discretion.’” Heart v. Commonwealth, 75 Va. App. 453,
460 (2022) (quoting Green, 75 Va. App. at 76).
3
“The defendant was released from incarceration on August 12, 2022 after service of his
seven year sentence to this jurisdiction as well as his service of sentences imposed in three other
jurisdictions.”
4
The MVR is sealed. To the extent that this opinion mentions facts in the MVR—or in
any other sealed documents—we unseal only those specific facts, finding them relevant to the
decision in this case. The remainder of the previously sealed record remains sealed. See
Chenevert v. Commonwealth, 72 Va. App. 47, 52 n.1 (2020).
5
The MVR also noted that the extortion conviction showed that Guy “was not of good
behavior during his period of incarceration.”
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Guy’s revocation hearing originally was scheduled for May 23, 2023. On that date, a
sentencing revocation report (SRR) was filed under seal. This SRR stated that Guy violated the
terms of his supervised probation by committing a new misdemeanor violation of law. Following a
defense motion to continue, the trial court continued the revocation hearing to June 15, 2023.
At the revocation hearing, Guy conceded that he violated the terms of his supervised
probation. The probation officer testified that Guy’s misdemeanor assault and battery conviction
was the basis for the revocation. The officer also confirmed that Guy was convicted of extortion in
Culpeper County based on messages he sent while he was incarcerated. Guy received a sentence of
“[a]pproximately three years” on the extortion conviction.
Guy’s father-in-law, Julian Moody, testified on behalf of the Commonwealth. When the
Commonwealth asked Moody to describe “the basic facts” of the extortion case, Guy objected on
relevance grounds. The trial court overruled the objection. Moody testified that Guy sent his
wife—Moody’s daughter— threatening messages from prison. Moody did not “repeat the
language” in the messages out of respect for the court but stated that Guy called her “everything in
the book.” Further, Moody asserted that his daughter “live[d] in fear every day” and was a “nervous
wreck” because of Guy’s threats.
The trial court admitted without objection an exhibit introduced by the Commonwealth
containing the text messages Guy sent his wife. The messages showed Guy repeatedly threatening
to harm his wife and her son if she did not answer his phone calls. In one message he stated: “Im
[sic] going to really really hurt you real bad and it wont [sic] stop with you I will really make an
example of” her son, and “pick up the fucking phone or sign your fucking death certificate Im [sic]
not playing I will make it my goal to make sure you know real pain.” He also threatened to cause
“the most horrific pain imaginable,” stated that she was “dead” if she did not pick up the phone in
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the morning, and that her son would “find out just how me[a]n” Guy could be. Guy repeatedly
called her a “bitch” and “whore,” as well as an “asshole” and a “cunt.”
Guy asked the trial court to impose a sentence within the discretionary sentencing guidelines
range of time served to six months.6 He stated that he had been incarcerated from 2006 to 2022,
“nearly the entirety of his adult life.” He worked as a cook for eight years in prison, and “actively
pursu[ed] self[-]improvement the entire time that he was incarcerated” by completing as many
courses as possible. Guy “realize[d]” that he made a “grave” mistake and had “learned a lesson.”
He was “very eager” to see his daughter, granddaughter, and parents, and he wished to divorce his
wife and have no contact with her.
The Commonwealth requested a two-year sentence. It noted that Guy’s underlying
convictions included six counts of statutory burglary, which was “one of the most serious and
violent type of offenses.” The Commonwealth highlighted that, after commencing supervised
probation in August 2022, Guy committed another violent crime; an assault and battery in October
2022. The Commonwealth also argued that the threatening messages Guy sent to his wife from
prison showed what he was “capable of.”
In allocution, Guy “t[ook] responsibility” for his actions and apologized to his wife, her son,
and Moody. He explained that he hoped that they would have “a speedy healing process,” and
pledged to continue “to better” himself.
6
There were two SRRs filed in this case. One report—which was filed under seal—
calculated the discretionary sentencing guidelines range based only on the new misdemeanor
assault and battery conviction. The other report—which was not filed under seal—calculated the
discretionary sentencing guidelines range based on both the misdemeanor assault and battery and
the felony extortion convictions. The guidelines range based on the misdemeanor conviction
was time served to six months, while the range based on the misdemeanor and felony convictions
was eight months to two years. Neither the Commonwealth nor the trial court disputed defense
counsel’s statement that the discretionary guidelines range was time served to six months.
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Before pronouncing sentence, the trial court noted that it had “taken some extra time to look
into” the case “because there [we]re quite a number of documents, and there [we]re a number of
factors” for the trial court to consider. The trial court noted that Guy had a “robust criminal history”
involving “residential burglaries and larcenies, which [we]re very, very serious crimes.” The trial
court was “really concern[ed]” that, after serving a lengthy sentence, Guy both sent death threats to
his wife and committed assault and battery. The trial court characterized Guy’s “litany of threats to
murder” his wife and her son as “very, very serious.”
The trial court stated that it “interpret[ed]” the Commonwealth’s sentencing request to be 2
years’ incarceration for each of the 11 underlying convictions. The trial court declined to “go that
high,” but revoked Guy’s suspended sentences and resuspended all but 1 year and 6 months’
incarceration on each underlying conviction, for a total sentence of 16 years and 6 months. The trial
court explained that the guidelines were inadequate given all the evidence, particularly the
seriousness of the threats. Additionally, the trial court “terminate[d] probation,” concluding that
Guy was not amenable to supervision.7
Guy now appeals, arguing that the trial court abused its discretion by admitting Moody’s
testimony regarding the extortion conviction, and by giving that evidence undue weight in
sentencing.
7
Before the trial court entered the final revocation order, Guy moved for reconsideration.
Defense counsel stated that, after the revocation hearing, the prosecutor clarified that the
Commonwealth’s sentencing request was two years total, rather than two years on each count.
Further, defense counsel asserted that “[e]ven if the felony conviction had been part of the basis of
the violation,” Guy’s sentence would be “eight times the high end” of the discretionary sentencing
guidelines range. The trial court declined to reconsider the sentence.
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ANALYSIS
I. The trial court did not abuse its discretion by allowing the admission of Moody’s
testimony.
“[A] revocation hearing, like the criminal trial that preceded it, . . . involves two phases—
evaluating whether a violation has occurred and, if so, determining an appropriate penalty.”
Jenkins v. Commonwealth, 71 Va. App. 334, 345 (2019). Here, the record reflects that the trial
court admitted Moody’s testimony in the sentencing phase of the revocation hearing. See id. at
347.
“A sentencing hearing before a judge is not a criminal trial.” Smith v. Commonwealth, 52
Va. App. 26, 30 (2008). Under settled jurisprudence, the sentencing judge has “wide discretion
in the sources and types of evidence used to assist him in determining the kind and extent of
punishment to be imposed within limits fixed by law.” Harvey v. Commonwealth, 65 Va. App.
280, 284 (2015) (quoting McClain v. Commonwealth, 189 Va. 847, 860 (1949)). In exercising
its discretion, the trial court “must take into account a wide range of information, including the
defendant’s remorse or lack thereof, in determining ‘a sentence that best effectuates the criminal
justice system’s goals of deterrence (general and specific), incapacitation, retribution and
rehabilitation.’” Baldwin v. Commonwealth, 69 Va. App. 75, 87 (2018) (quoting Smith v.
Commonwealth, 27 Va. App. 357, 363 (1998)).
“In determining the admissibility of evidence at a sentencing hearing, ‘the circumstances
of the individual case will dictate what evidence will be necessary and relevant, and from what
sources it may be drawn.” Meekins v. Commonwealth, 72 Va. App. 61, 68 (2020) (quoting Beck
v. Commonwealth, 253 Va. 373, 384 (1997)). “Such weighing is left to the discretion of the trial
court and will not be disturbed on appeal, absent an abuse of discretion.” Id. (quoting Harvey,
65 Va. App. at 287).
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The extortion conviction was not noted as the basis for revoking Guy’s suspended
sentences. But it is well-established that “evidence of a defendant’s prior criminal convictions is
. . . relevant and admissible” in the sentencing portion of a revocation hearing. Pearson v.
Commonwealth, 37 Va. App. 583, 590 (2002). Guy contends that, because the Commonwealth
already had introduced evidence of the extortion conviction’s existence, Moody’s
“understanding of the facts of the extortion case and its effects on his family [was] irrelevant.”
We disagree. In fashioning an appropriate sentence, it was proper for the trial court to consider
the circumstances of the extortion conviction, including that Guy committed that offense in
prison, that his wife was the victim, and that she remained fearful because of the threats.
Moreover, Guy was not privileged to limit the Commonwealth’s opportunity to present
evidence by stipulating to the criminal activity. See Boone v. Commonwealth, 285 Va. 597, 600
(2013) (“[A]n accused cannot . . . require the Commonwealth to pick and choose among its proofs,
to elect which to present and which to forego.” (alterations in original) (quoting Pittman v.
Commonwealth, 17 Va. App. 33, 35 (1993))); see also Pittman, 17 Va. App. at 35 (“The
Commonwealth . . . is not obliged to enter into an agreement whereby it is precluded from putting
on its evidence simply because the defendant is willing to make a qualified stipulation.” (alteration
in original) (quoting Hudson v. Commonwealth, 9 Va. App. 110, 112 (1989))). Considered in
context, we find no abuse of the trial court’s discretion to admit Moody’s testimony.
II. The trial court did not abuse its discretion by imposing a sentence above the
discretionary sentencing guidelines.
Subject to the provisions of Code § 19.2-306.2, after suspending the execution of
imposition of 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
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revoke the suspension and impose a sentence in accordance with the provisions of § 19.2-306.1.”
Code § 19.2-306(C). If the trial court finds that the defendant “has violated another condition
other than (i) a technical violation or (ii) a good conduct violation that did not result in a criminal
conviction, then the court may revoke the suspension and impose or resuspend any or all of that
period previously suspended.” Code § 19.2-306.1(B).
“We review the trial court’s sentence for abuse of discretion.” Scott v. Commonwealth,
58 Va. App. 35, 46 (2011). Guy contends that the trial court abused its discretion because it gave
“significant weight” to Moody’s testimony, which Guy asserts is “an irrelevant and improper
factor.” See Lawlor v. Commonwealth, 285 Va. 187, 213 (2013). Again, we disagree. The
record does not reflect that the trial court gave significant weight to Moody’s testimony. The
trial court assigned substantial weight to Guy’s “litany of threats to murder” his wife and her son.
It is true that Moody testified about threats that Guy had made to his wife and her son, causing
her to live in fear. But Moody declined to repeat the contents of the threats. Rather, the trial
court admitted, without objection, an exhibit containing the messages verbatim. Thus, any
assessment of the seriousness of the threats would have been based on the exhibit, not Moody’s
testimony.
The trial court did not abuse its discretion by assigning considerable weight to the threats.
Guy’s main argument for a sentence within the range recommended by the discretionary
sentencing guidelines was that he had “learned a lesson” from his lengthy prison term and had
rehabilitated himself. Less than six months before his release date, Guy expressly and repeatedly
threatened to kill his wife and harm her son. The trial court was entitled to consider these threats,
alongside Guy’s “robust criminal history,” in rejecting this proposition and imposing a sentence
above the discretionary sentencing guidelines.
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“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). Guy’s conduct supports a finding 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) (quoting Price v. Commonwealth, 51 Va. App.
443, 448 (2008)). We do not find error in the trial court’s decision not to extend this grace any
further.
CONCLUSION
The trial court did not abuse its discretion by admitting Moody’s testimony in the
sentencing portion of the revocation proceeding or considering that testimony alongside several
other factors in imposing sentence. Accordingly, we affirm the trial court’s judgment.
Affirmed.
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