Steven Tyler McCracken v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Senior Judges Annunziata, Frank and Petty
STEVEN TYLER McCRACKEN
MEMORANDUM OPINION*
v. Record No. 0001-22-3 PER CURIAM
JULY 12, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
C. Randall Lowe, Judge
(Kimberly C. Haugh; Kimberly C. Haugh, P.C., on brief), for
appellant.
(Jason S. Miyares, Attorney General; Virginia B. Theisen, Senior
Assistant Attorney General, on briefs), for appellee.
Counsel for Steven Tyler McCracken filed a brief on his behalf accompanied by a motion
for leave to withdraw in accordance with Anders v. California, 386 U.S. 738, 744 (1967).
McCracken also filed a pro se supplement to his counsel’s Anders brief. After examining the
briefs and record in this case, we affirm the circuit court’s judgment. We unanimously hold that
oral argument is unnecessary because “the appeal is wholly without merit.” Code §
17.1-403(ii)(a); Rule 5A:27(a).
BACKGROUND
In February 2012, McCracken pled guilty in the Circuit Court of Washington County to four
counts of manufacturing methamphetamine. The circuit court entered a final order on March 30,
2012, sentencing him to a total of sixty years’ incarceration with fifty-seven years suspended. In
August 2017, McCracken pled guilty in the same court to one count each of possessing
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
methamphetamine and unauthorized use of a motor vehicle, five counts of obtaining money by false
pretenses, and three counts of uttering. The circuit court entered a final order on August 9, 2017,
sentencing him to a total of forty-one years’ incarceration with thirty-nine years and three months
suspended. Separately, rather than revoking the suspended sentence imposed for McCracken’s
2012 convictions, on August 10, 2017, the court imposed an indefinite period of probation and
ordered him to enter and complete the Community Corrections Alternative Program upon his
release from custody.
In June 2020, a probation officer filed a major violation report alleging that McCracken had
violated the conditions of his suspension by failing to report an arrest in Bristol, Tennessee for
possessing a firearm and driving with a suspended license, by changing his residential address
without informing the probation officer, and by absconding from supervision because his
whereabouts were then unknown. A December 2020 supplemental report alleged that McCracken
also had been arrested in Knoxville, Tennessee on charges of impersonation, possession of
methamphetamine, and possession of drug paraphernalia. Three additional supplemental reports in
2021 alleged that McCracken failed to report to his probation officer in June 2020 as required and
that McCracken had been convicted of driving while his license was revoked, assault and battery on
a family member, and unlawful wounding.
Following several continuances, the circuit court held a revocation hearing on May 20,
2021. In a final order entered September 29, 2021, the court revoked five years of McCracken’s
previously suspended sentences. McCracken filed a pro se motion to modify his revocation
sentence, which the court denied. McCracken appeals.
ANALYSIS
In a single assignment of error, McCracken’s Anders brief asserts that the circuit court
abused its discretion by revoking five years of McCracken’s suspended sentence. In his pro se
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supplemental brief, McCracken raises four additional assignments of error, asserting that his
attorney rendered ineffective assistance of counsel, that the probation officer committed fraud
upon the court by perjuring himself at the revocation hearing, that the Commonwealth engaged
in prosecutorial misconduct by making prejudicial statements at the hearing, and that the court
admitted hearsay evidence. He also argues that the statutory changes the General Assembly
enacted by amending Code §§ 19.2-303 and -306 and creating Code § 19.2-306.1, effective July
1, 2021, see 2021 Va. Acts Spec. Sess. I ch. 538, should apply because his revocation order was
not entered until September 29, 2021.
“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. Commonwealth, 61
Va. App. 529, 535 (2013) (quoting Davis v. Commonwealth, 12 Va. App. 81, 86 (1991)). “That
standard means that the circuit court judge’s ‘ruling will not be reversed simply because an
appellate court disagrees.’” Id. (quoting Thomas v. Commonwealth, 44 Va. App. 741, 753,
adopted upon reh’g en banc, 45 Va. App. 811 (2005)). It also “necessarily implies that, for some
decisions, conscientious jurists could reach different conclusions based on exactly the same
facts—yet still remain entirely reasonable.” Thomas v. Commonwealth, 62 Va. App. 104, 111
(2013) (quoting Hamad v. Hamad, 61 Va. App. 593, 607 (2013)). We consider “[t]he
evidence . . . in the light most favorable to the Commonwealth, as the prevailing party below.”
Jacobs, 61 Va. App. at 535.
The probation officer’s 2021 supplemental reports each alleged that McCracken had been
convicted of new criminal offenses during the suspension period. “A new conviction certainly
constitutes good cause to revoke the suspension of a previously imposed sentence.” Booker v.
Commonwealth, 61 Va. App. 323, 338 (2012). Under the operative terms of the revocation
statute in effect when the circuit court considered McCracken’s violation, once it found that he
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had violated the terms of the suspension, the circuit court was obligated to revoke the suspended
sentences and they were in “full force and effect.” Code § 19.2 306(C)(ii).1 The court was
permitted—but not required—to resuspend all or part of the sentences. Id.; Alsberry v.
Commonwealth, 39 Va. App. 314, 320 (2002).
We are unable to determine the basis of the circuit court’s decision, however, because the
record on appeal does not contain a timely-filed transcript of the revocation hearing.2 The
court’s written order states only that it “heard statements on behalf of the Commonwealth and
statements on behalf of” McCracken. The revocation order does not summarize the evidence
presented at the hearing, nor do the revocation sentencing guidelines indicate what violations the
trial court found. Accordingly, the transcript of the hearing is indispensable to review the basis
of the circuit court’s ruling. See Smith v. Commonwealth, 32 Va. App. 766, 772 (2000); Turner
v. Commonwealth, 2 Va. App. 96, 99-100 (1986).
McCracken failed to ensure that the record contains a timely-filed transcript, or written
statement of facts in lieu of a transcript, necessary to permit us to resolve the assignment of error
in his Anders brief. Rule 5A:8(b)(4)(ii). Therefore, we cannot address the merits of that
assignment of error. Id. Similarly, we cannot consider three of the assignments of error he raises
in his pro se supplemental brief. Without a timely-filed transcript of the revocation hearing, we
do not know what the probation officer testified to at the hearing, or whether the testimony was
1
Code § 19.2-306(C) was amended effective July 1, 2021, and no longer requires the trial
court to revoke the sentence. 2021 Va. Acts Spec. Sess. I ch. 538. The previous version of the
statute applies, however, when the revocation proceeding began before July 1, 2021. Green v.
Commonwealth, ___Va. App. ___, ___ & n.4 (June 14, 2022). In this case, although the circuit
court did not enter the revocation order until September 29, 2021, the revocation hearing
occurred on May 20, 2021, so the amendment effective July 1, 2021 did not apply.
2
The circuit court entered its final order on September 29, 2021. Under Rule 5A:8(a), a
transcript must be “filed in the office of the clerk of the trial court no later than 60 days after
entry of the final judgment.” McCracken filed the transcript of the revocation hearing on
December 16, 2021.
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false and constituted fraud upon the court. We do not know what statements the Commonwealth
made at the hearing, so we are unable to assess whether they were prejudicial. We do not know
what evidence the circuit court admitted, so we cannot evaluate whether any of it was
inadmissible hearsay. See Jenkins v. Commonwealth, 71 Va. App. 334, 344-45 (2019) (setting
out factors for the admission of testimonial hearsay in a revocation hearing). We cannot address
any of these assignments of error because there is no timely-filed transcript. Rule 5A:8(b)(4)(ii).
The absence of a timely-filed transcript does not affect one of the assignments of error
McCracken raises in his pro se supplemental brief, but we still cannot reach it: his claim of
ineffective assistance of counsel. “[C]laims of ineffective assistance of counsel . . . are not
reviewable on direct appeal, but must be raised in a petition for a writ of habeas corpus after
exhaustion of all appellate remedies.” McGinnis v. Commonwealth, 296 Va. 489, 495 n.1 (2018)
(citing Sigmon v. Dir., Dep’t of Corrs., 285 Va. 506, 533 (2013)); accord Keener v.
Commonwealth, 71 Va. App. 279, 297 (2019). Thus, the claim presented in this assignment of
error is not properly before us for review.
Finally, as noted above, the amendment to Code § 19.2-306 effective July 1, 2021 does
not apply in this case, because the revocation proceeding began before the effective date of the
amendment. Green v. Commonwealth, ___ Va. ___, ___ & n.4 (June 14, 2022). Accordingly,
McCracken’s final assignment of error is without merit.
CONCLUSION
For the foregoing reasons, the circuit court’s judgment is affirmed. We deny counsel’s
motion for leave to withdraw. See Anders, 386 U.S. at 744. This Court’s records reflect that
Kimberly C. Haugh, Esquire, is counsel of record in this matter
Affirmed.
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