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Sentencing issue not raised in trial court

Virginia Lawyers Weekly//February 17, 2020

Sentencing issue not raised in trial court

Virginia Lawyers Weekly//February 17, 2020

Where appellant argues that the trial court, when imposing sentence, improperly considered his failure to accept a deferred disposition of this domestic assault case in the JDR court, appellant has waived the issue because he did not raise it in the trial court.


The juvenile and domestic relations district court found there was sufficient evidence to convict appellant of domestic assault. Appellant initially accept the JDR court’s offer of a deferred disposition but later withdrew his assent and asked the court to find him guilty so he could appeal to the circuit court. The JDR court obliged, sentenced him to six months in jail and ordered a $2,500 fine.

In the circuit court, appellant, with standby counsel, represented himself at a jury trial. When appellant mentioned in closing argument that the JDR court had offered him a deferred disposition, the circuit court sustained the commonwealth’s objection. The jury found him guilty and recommended a seven-month sentence. Appellant asked, and the court ordered, that sentencing be continued to the next day.

Standby counsel addressed the court and asked that the finding of guilt be deferred. The commonwealth objected. The court, in sustaining the objection, noted that appellant had renounced the deferred disposition offered by the JDR court. Appellant did not object. Nor did he object when the court imposed a seven-month sentence, with one month deferred, conditioned on a successful 12-month probation. Appellant did not file a motion to reconsider.


“Appellant argues on appeal that the circuit court erred by considered the rejected deferred disposition offered by the JDR court. Rule 5A:18 provides that ‘[n]o ruling of the trial court … will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling[.]’

“Accordingly, we cannot address appellant’s argument that the trial court impermissibly considered the proceedings in the JDR court unless appellant raised such an objection in the trial court. A review of the record on appeal reveals that he failed to do so.

“The written statement of facts reveals that, in the trial court, appellant requested a deferred disposition and that the Commonwealth argued that he should not receive one because he had refused that outcome in the JDR court.

“In sum, appellant gave a reason why the trial court should grant him a deferred disposition and the Commonwealth gave a reason why it should not. Although the trial court ultimately agreed with the Commonwealth’s reason, there is no indication that appellant ever argued, as he does on appeal, that the trial court should not even consider that reason.

“The record simply does not demonstrate that appellant objected to the trial court considering what had occurred in the JDR court or otherwise brought the issue to the trial court’s attention.

“Appellant’s failure to comply with Rule 5A:18 is fatal to his claim on appeal.”


Abalos v. Commonwealth, Record No. 0724-19-4, Jan. 28, 2020. CAV (Russell) from Rappahannock Cir. Ct. (Parker). Ryan David Ruzic for appellant, Liam A. Curry for appellee. VLW 020-7-015, 7 pp. Unpublished.

VLW 020-7-015

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