Decisions affirmed — Va. Court of Appeals (Unpublished)

Affirmed per curiam

Criminal

Appellant has forfeited his argument that the trial court should have prepared sentencing guidelines and reviewed them at his revocation hearing; he did not raise this issue before he appealed. Further, requiring him to serve the balance of a 50-year sentence when he illegally reentered the country (which was a probation violation) was not “unconscionable and unenforceable.”

Rivas-Marquez v. Commonwealth, Record No. 0944-21-2, June 21, 2022. CAV (per curiam) From the Circuit Court of Spotsylvania County (Ellis). Nathanael W. Buczek for appellant. Jason S. Miyares, Matthew J. Beyrau for appellee. VLW 022-7-214, 7 pp. Unpublished memorandum per curiam opinion.

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Criminal

Appellant’s total 20-year sentence for breaking and entering, and for larceny, was within the guidelines and thus not an abuse of discretion.

Jenkins v. Commonwealth, Record No. 1088-21-4, June 28, 2022. CAV (per curiam) From the Circuit Court of Rappahannock County (Fisher). David W. Walls for appellant. Jason S. Miyares, Justin B. Hill for appellee. VLW 022-7-224, 8 pp. Unpublished memorandum per curiam opinion.

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Criminal

The court did not abuse its discretion by imposing a two-year active sentence after appellant conceded that he violated the terms of his supervised probation. Appellant challenges the active sentence’s length but the court had the statutory authority to “to revoke the previously suspended two-year sentence and not resuspend any of that time.”

Valentine v. Commonwealth, Record No. 0666-21-1, June 28, 2022. CAV (per curiam) From the Circuit Court of the City of Portsmouth (Melvin). W. McMillan Powers for appellant. Jason S. Miyares, Rosemary V. Bourne for appellee. VLW 022-7-229, 5 pp. Unpublished memorandum per curiam opinion.

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Criminal

The trial court did not abuse its discretion “by admitting a written appellate opinion regarding appellant’s previous manslaughter conviction as well as direct testimony from a victim of a previously adjudicated crime.” Further, the court properly weighed all of the evidence presented, including appellant’s mitigating evidence, before sentencing appellant above the guidelines after he was convicted of assaultive crimes and firearm offenses.

Davis v. Commonwealth, Record No. 0077-22-4, June 28, 2022. CAV (per curiam) From the Circuit Court of Stafford County (Willis). James Joseph Ilijevich for appellant. Jason S. Miyares, Leanna C. Minix for appellee. VLW 022-7-231, 11 pp. Unpublished memorandum per curiam opinion.

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Criminal

A 90-day sentence for violating a condition of appellant’s suspended sentence is affirmed. “The appellant’s disregard of the terms of his suspended sentence supports the court’s finding that he was not amenable to rehabilitation. In addition, his lapse into further criminal behavior demonstrated that he failed to take advantage of the grace extended to him.”

Commonwealth v. Thorpe, Record No. 1206-21-2, July 5, 2022. CAV (per curiam) From the Circuit Court of the City of Petersburg (Teefey). Aaron M. Vandenbrook for appellant. Jason S. Miyares, Tanner M. Russo for appellee. VLW 022-7-234, 6 pp. Unpublished memorandum per curiam opinion.

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Criminal

Appellant’s nolo plea to aggravated sexual battery, abduction and indecent liberties precludes his argument that there was insufficient evidence. His nolo plea waived all defenses except jurisdictional ones.

Minor v. Commonwealth, Record No. 1159-21-2, July 5, 2022. CAV (per curiam) From the Circuit Court of the City of Richmond (Snukals). Maureen L. White for appellant. Jason S. Miyares, Timothy J. Huffstutter for appellee. VLW 022-7-235, 5 pp. Unpublished memorandum per curiam opinion.

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Criminal

Appellant was the subject of six show-cause hearings regarding probation violations. “[T]he trial court considered and rejected Johnson’s mitigating arguments regarding his family circumstances and why he failed to register as a sex offender.” A three-year active sentence is affirmed.

Johnson v. Commonwealth, Record No. 1150-21-1, July 5, 2022. CAV (per curiam) From the Circuit Court of the City of Chesapeake (MacDonald). Jennifer T. Stanton for appellant. Jason S. Miyares, Tanner M. Russo for appellee. VLW 022-7-236, 5 pp. Unpublished memorandum per curiam opinion.

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Criminal

The record is inadequate to show that the appellant preserved his argument whether there was insufficient evidence to convict him of strangling his girlfriend. The ends of justice exception to Rule 5A:18 does not help appellant because he presented no evidence that an element of the offense did not occur.

Winston v. Commonwealth, Record No. 1126-21-2, July 5, 2022. CAV (per curiam) From the Circuit Court of Chesterfield County (Johnson). Kyle Anderson for appellant. Jason S. Miyares, Tanner M. Russo for appellee. VLW 022-7-237, 9 pp. Unpublished memorandum per curiam opinion.

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Criminal

Appellant claims double jeopardy bars her current indictment for assaulting a police officer because the same charge was dismissed in November 2020, and that dismissal should have been with prejudice. “Appellant’s argument turns on statements she claims were made at the November 2020 hearing. A transcript of this hearing, however, has not been made part of this record for our consideration.”

Baine v. Commonwealth, Record No. 1034-21-2, July 5, 2022. CAV (per curiam) From the Circuit Court of Henrico County (Harris). Joshua Farmer for appellant. Jason S. Miyares, Lucille M. Wall for appellee. VLW 022-7-238, 5 pp. Unpublished memorandum per curiam opinion.

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Criminal

Appellant concedes that his sentences for theft and firearm offenses are within the statutory guidelines but argues they should be reviewed for proportionality. However, such review is not undertaken when a sentence does not exceed the guidelines’ recommendations.

Gholson v. Commonwealth, Record No. 1017-21-2, July 5, 2022. CAV (per curiam) From the Circuit Court of Chesterfield County (Johnson). Todd M. Ritter for appellant. Jason S. Miyares, Sharon M. Carr for appellee. VLW 022-7-239, 7 pp. Unpublished memorandum per curiam opinion.

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Criminal

Appellant appeals his conviction of assaulting a corrections officer. There was sufficient evidence that appellant pulled a guard into his cell and hit him on the head. His claim of ineffective assistance of counsel cannot be made on direct appeal. It must be raised in a habeas corpus proceeding.

Reid v. Commonwealth, Record No. 0948-21-2, July 5, 2022. CAV (per curiam) From the Circuit Court of Prince George County (Balfour). Amanda Nicole Mann for appellant. Jason S. Miyares, Rebecca M. Garcia for appellee. VLW 022-7-240, 11 pp. Unpublished memorandum per curiam opinion.

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Criminal

Appellant’s 30-year active sentence for rape is affirmed. The above-guidelines sentence was justified by “the facts of the case, the presentence report and K.L.’s victim impact testimony.”

Black v. Commonwealth, Record No. 0927-21-2, July 5, 2022. CAV (per curiam) From the Circuit Court of King George County (Hewitt). Patricia Alice Bolen for appellant. Jason S. Miyares, William A. Hamilton for appellee. VLW 022-7-241, 6 pp. Unpublished memorandum per curiam opinion.

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Criminal

Appellant claimed she received ineffective assistance of counsel. She argues that she was wrongful convinced to plead no contest to robbery and drug charges, and that counsel should have moved to withdraw her plea. Ineffective assistance claims must be made in a habeas corpus proceeding and not on direct appeal. Her claim that the court should have ordered a competence evaluation fails because she did not provide a transcript or a statement of facts for the sentencing hearing.

Bugg v. Commonwealth, Record No. 0859-21-2, July 5, 2022. CAV (per curiam) From the Circuit Court of the City of Richmond (Hairston). Michael B. Gunlicks for appellant. Jason S. Miyares, Robin M. Nagel for appellee. VLW 022-7-242, 6 pp. Unpublished memorandum per curiam opinion.

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Criminal

Appellant’s five-year sentence for heroin distribution was not an abuse of discretion. “[T]he trial court considered the mitigating circumstances appellant cites on appeal, including his addiction. Balanced against that evidence, however, was appellant’s extensive criminal history, including multiple convictions for drug distribution. After considering all the circumstances, the trial court imposed the sentence that it deemed appropriate. That sentence ‘does not exceed [the statutory] maximum,’ and our task is complete.”

Perry v. Commonwealth, Record No. 0823-21-1, July 5, 2022. CAV (per curiam) From the Circuit Court of Southampton County (Eason). Ashby L. Pope for appellant. Jason S. Miyares, Leanna C. Minix for appellee. VLW 022-7-243, 9 pp. Unpublished memorandum per curiam opinion.

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Criminal

Appellant’s sentences for second-degree murder, aggravated wounding, and child abuse and neglect were within the guidelines. “[T]he court considered the sentencing guidelines, the circumstances of the offenses, and appellant’s history and characteristics – including his mental health. … We do not assess the appropriate application of any aggravating or mitigating factors supporting a trial court’s sentencing decision. It is within the trial court’s purview to weigh any mitigating factors appellant presented. Appellant’s sentence was ‘within the statutory range, and our task is complete.’”

Natale v. Commonwealth, Record No. 0789-21-4, July 5, 2022. CAV (per curiam) From the Circuit Court of Frederick County (Eldridge). David L. Hensley, Ryan L. Nuzzo for appellant. Jason S. Miyares, Tanner M. Russo for appellee. VLW 022-7-244, 8 pp. Unpublished memorandum per curiam opinion.

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Criminal

A five-year active sentence after appellant’s sixth probation violation was not an abuse of discretion. The court “carefully considered” appellant’s mitigating evidence but also took into account that he had incurred new criminal convictions between his fifth and sixth violations. “In announcing the sentence, the trial court explained that a five-year active sentence for this sixth violation still represented ‘less than one-third of the time before the Court that it could’ve revoked.’”

Foltz v. Commonwealth, Record No. 0779-21-4, July 5, 2022. CAV (per curiam) From the Circuit Court of Page County (Eldridge) Richard G. Morgan for appellant. Jason S. Miyares, John Beamer for appellee. VLW 022-7-245, 5 pp. Unpublished memorandum per curiam opinion.

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