Virginia Lawyers Weekly VA Lawyers Weekly
Civil Practice
“Wesseh argues that the circuit court erred in dismissing her appeal and finding that it did not have jurisdiction over the matter. We find that Wesseh failed to preserve her arguments for appeal. … Wesseh has failed to file a transcript of the January 14, 2022 hearing on Lyft’s motion to dismiss. Additionally, although Wesseh filed a written statement of facts in lieu of a transcript, it was not properly made a part of the record on appeal. …
“Wesseh timely filed her written statement of facts in lieu of a transcript, but she did not include the requisite notice to Lyft, Inc. and Legesse that the statement would be presented to the trial judge ‘no earlier than 15 days nor later than 20 days’ after its filing. Rule 5A:8(c)(1).”
Sanchez-Gutierrez v. Commonwealth, Record No. 1410-21-3, Sept. 27, 2022. CAV (per curiam) From the Circuit Court Prince William County (Weimer). James M. Johnson for appellant. Edward W. Bailey for appellee Woldeare Gay Legesse. Christian F. Tucker for appellee Lyft, Inc. VLW 022-7-420, 4 pp. Unpublished memorandum per curiam opinion.
Criminal
“Appellant argues that the trial court erred in denying the motion to reconsider his sentence without a hearing. Code § 19.2-303 contains no requirement that a trial court hold a hearing upon a motion for reconsideration or modification of sentence. Upon these facts and circumstances, we find no abuse of discretion in the trial court’s decision to deny appellant’s motion for reconsideration of sentence.”
Little v. Commonwealth, Record No. 1326-21-1, Aug. 16, 2022. CAV (per curiam) From the Circuit Court of the City of Norfolk (Lannetti). Kristin Paulding for appellant. Jason S. Miyares, Rebecca M. Garcia for appellee. VLW 022-7-323, 9 pp. Unpublished memorandum per curiam opinion.
Criminal
Appellant’s two-year active sentence for grand larceny, attempted malicious wounding of a law enforcement officer, hit and run with damage to attended property, and felony eluding was above the guidelines range but within the statutory limits. “‘[T]he recommended sentencing ranges contained in these discretionary guidelines are not binding on the trial judge but, rather, are mere tools to be used by the judge in fixing an appropriate sentence within the limitations established by the statute governing punishment for the particular crime. … Thus, a judge’s failure to follow the sentencing guidelines ‘shall not be reviewable on appeal or the basis of any other post-conviction relief.’
Butler v. Commonwealth, Record No. 1274-21-1, Aug. 16, 2022. CAV (per curiam) From the Circuit Court of the City of Virginia Beach (Lewis). Scott C. Alleman for appellant. Jason S. Miyares, Leah A. Darron for appellee. VLW 022-7-327, 6 pp. Unpublished memorandum per curiam opinion.
Criminal
“Porter asserts that the evidence was insufficient to support his convictions because the testimony of the witnesses identifying him as the perpetrator was inherently incredible. We disagree. … Porter lived with Ferebee and Morgan until shortly before the offenses, and they were both familiar with his appearance. Ferebee stated that the lights were on inside her bedroom when Porter entered and she saw him at close range and heard him speak; further, when she called 911, she specifically identified him as her assailant.
“Ferebee identified Porter a second time when she saw Porter outside her home after the police arrived. Morgan testified that she ‘tussled’ with Porter for several minutes to protect her daughter and, like Ferebee, she noticed that Porter was carrying a black gun. Consistent with Ferebee’s account, Morgan also stated that Porter struck her daughter in the head with the gun after he pushed open a bedroom door. At trial, both Ferebee and Morgan identified Porter again as the perpetrator, with Morgan stressing that she was certain in her identification.”
Porter v. Commonwealth, Record No. 1132-21-1, Aug. 16, 2022. CAV (per curiam) From the Circuit Court of the City of Norfolk (Halls). Trevor Jared Robinson for appellant. Jason S. Miyares, Sharon M. Carr for appellee. VLW 022-7-329, 6 pp. Unpublished memorandum per curiam opinion.
Criminal
“Sanchez-Gutierrez argues on appeal that the trial court abused its discretion when it sentenced him to eight years and six months’ incarceration following his probation violation. … The record demonstrates that Sanchez-Gutierrez incurred new criminal convictions for violent crimes, strangulation and assault and battery, just twelve days after release from incarceration for his underlying conviction of arson of an occupied dwelling.”
Sanchez-Gutierrez v. Commonwealth, Record No. 1410-21-3, Sept. 27, 2022. CAV (per curiam) From the Circuit Court Rockingham County (Albertson). David R. Martin for appellant. Jason S. Miyares, Matthew P. Dullaghan for appellee. VLW 022-7-410, 5 pp. Unpublished memorandum per curiam opinion.
Criminal
Adkins appeals his four-year active sentence for a probation violation. “Adkins concedes that he did not raise this issue in the trial court but asks us to consider his argument under the ends of justice exception to Rule 5A:18. … Adkins argues that his sentence violates the Eighth Amendment because it is disproportionate to his probation violation. It is well established that we will not engage in a proportionality review in cases that do not involve life sentences without the possibility of parole.”
Adkins v. Commonwealth, Record No. 0481-22-2, Sept. 27, 2022. CAV (per curiam) From the Circuit Court of Prince George County (Saunders Jr.). Terry R. Driskill for appellant. Jason S. Miyares, Liam A. Curry for appellee. VLW 022-7-422, 5 pp. Unpublished memorandum per curiam opinion.
Criminal
“Deputy Dunford found Bishop alone in the kitchen area of the camper within arm’s reach of methamphetamine lying in plain view on the kitchen table. The court also noted that one of the bags of methamphetamine was lying directly on top of Bishop’s cell phone.
“The evidence therefore was sufficient to prove that Bishop constructively possessed the methamphetamine because he was aware of its presence and character and it was under his dominion and control. …
“[T]he evidence establishes that the methamphetamine in plain view was packaged for distribution. Two plastic bags each contained less than one-and-a-quarter grams of methamphetamine and were found alongside more than ten grams of methamphetamine, suggesting that the larger amount was to be divided up into smaller quantities.
“A reasonable fact finder could infer from this evidence that Bishop intended to distribute the methamphetamine.
“Although Bishop argues that this circumstantial evidence does not exclude the possibility that he was in the camper to buy methamphetamine for personal use, that hypothesis of innocence is unsupported by the evidence. The circuit court expressly rejected it as unreasonable at trial, and that decision was not plainly wrong or unsupported by the record. One bag of methamphetamine was found on top of Bishop’s phone while he was the only person inside the camper.”
Bishop v. Commonwealth, Record No. 1057-21-2, Aug. 16, 2022. CAV (per curiam) From the Circuit Court of Amelia County (Cella Jr.). David G. Moss for appellant. Leah A. Darron for appellee. VLW 022-7-331, 5 pp. Unpublished memorandum per curiam opinion.
Criminal
Life sentence for a forcible sodomy conviction affirmed
“The record demonstrates that the trial court considered Ajanel-Sanic’s childhood and background as recounted in the presentence report. The court also considered the probation officer’s recommendations for post-release supervision.
“Balanced against those circumstances, however, was Ajanel-Sanic’s repeated and egregious sexual abuse of L.V. when she was so young. Moreover, Ajanel-Sanic refused to accept responsibility for his offenses, instead steadfastly insisting that L.V. had initiated the sexual contact. Given Ajanel-Sanic’s lack of remorse and refusal to accept responsibility, the record fairly ‘supports the trial court’s’ conclusion that there was no ‘assurance’ that Ajanel-Sanic would not reoffend.”
Further, the sentence imposed does not exceed the statutory maximum.
Ajanel-Sanic v. Commonwealth, Record No. 0445-22-4, Sept. 27, 2022. CAV (per curiam) From the Circuit Court of Arlington County (Dimatteo). Mark S. Thrash for appellant. Lindsay M. Brooker, Jason S. Miyares for appellee. VLW 022-7-423, 4 pp. Unpublished memorandum per curiam opinion.
Criminal
Walker has waived his argument that his plea-based convictions of malicious wounding and a firearm offense were not voluntarily made. Further, his eight-year active sentence was not an abuse of discretion.
“Walker acknowledges that he did not move to withdraw his guilty pleas or otherwise preserve his argument for appellate review but asks that we address it under the ‘good cause’ and ‘ends of justice’ exceptions to Rule 5A:18. … ‘Good cause’ relates to the reason why an objection was not stated at the time of the ruling. …
“The Court may only invoke the ‘good cause’ exception where an appellant did not have the opportunity to object to a ruling in the trial court; however, when an appellant ‘had the opportunity to object but elected not to do so,’ the exception does not apply. …
“The trial court accepted Walker’s guilty pleas on September 1, 2021, and entered final judgment on December 6, 2021. Thus, Walker had nearly four months to move to withdraw his guilty pleas but failed to do so. … Accordingly, the good cause exception does not apply because there was ample opportunity for Walker to alert the trial court of the relief he sought. …
“Whether to apply the ends of justice exception involves two questions: ‘(1) whether there is error as contended by the appellant; and (2) whether the failure to apply the ends of justice provision would result in a grave injustice.’” There were no defects in Walker’s guilty pleas. The record shows his pleas were “intelligent and voluntary.”
As to Walker’s sentence, “the trial court did not have the discretion to order Walker’s three-year mandatory minimum sentence for use of a firearm in the commission of a felony to ‘run’ concurrently with his malicious wounding sentence.”
Walker v. Commonwealth, Record No. 1297-21-1, Oct. 4, 2022. CAV (per curiam, Athey concurring) From the Circuit Court of the City of Newport News (Mills). Charles E. Haden for appellant. Leanna C. Minix, Jason S. Miyares for appellee. VLW 022-7-430, 15 pp. Unpublished memorandum per curiam opinion.
Criminal
“Williams contends that the trial court erred in imposing an active sentence of two years of incarceration for his failure to appear conviction. The gravamen of his argument is that the trial court failed to modify the low end of the discretionary sentencing guidelines range to account for his alleged acceptance of responsibility for the offense.
“The Commonwealth responds that Williams’s argument concerning a modification of the sentencing guidelines range was waived when appellant failed to ask for that relief in the trial court.
“Moreover, the Commonwealth maintains that his argument is without merit because the sentencing guidelines are discretionary and the sentence imposed was within the statutory range of punishment. …
“It is unnecessary to decide the waiver issue in this case[.] … Williams’s ‘argument is without merit because the guidelines provided by Code § 19.2-298.01 are discretionary, rather than mandatory.’ …
“The record reflects that the trial court considered the guidelines in this case. The trial judge stated his reasons for the sentence from the bench and provided a written explanation for the sentence imposed.
“The sentence imposed ‘was within the statutory range, and our task is complete.’”
Williams v. Commonwealth, Record No. 1232-21-3, Oct. 4, 2022. CAV (per curiam) From the Circuit Court of the City of Danville (Reynolds). Erik L. Sapp for appellant. Mason D. Williams, Jason S. Miyares for appellee. VLW 022-7-431, 4 pp. Unpublished memorandum per curiam opinion.
Criminal
“Jackson argues that the trial court committed reversible error in revoking his suspended sentences in their entirety. …
“Jackson stipulated that he had violated the conditions of his suspended sentences. Thus, the trial court had sufficient cause to revoke the suspended sentences. … In considering whether to resuspend some or all of the revoked sentences, it was within the trial court’s purview to weigh any mitigating factors Jackson presented, including any responsibility he assumed when he stipulated to violating the terms of his suspended sentences. …
“Balanced against the mitigating circumstances, however, were Jackson’s criminal history and his dishonesty with his probation officer. Considering Jackson’s repeated violations and the mere seven-month duration between his release from civil commitment and his violation, the trial court reasonably concluded that Jackson was not amenable to rehabilitation.
Jackson v. Commonwealth, Record No. 1163-21-1, Oct. 4, 2022. CAV (per curiam) From the Circuit Court of the City of Virginia Beach (Lewis). Diane P. Toscano for appellant. Matthew J. Beyrau, Jason S. Miyares for appellee. VLW 022-7-433, 7 pp. Unpublished memorandum per curiam opinion.
Criminal
“[T]he trial court concluded that Dillon had violated the conditions of her probation. The trial court revoked a portion of her suspended sentences and imposed a sentence of seven years of active incarceration. …
“The trial court heard the mitigating and aggravating evidence. The trial court considered Dillon’s history with her husband, as well as Dr. Twining’s report. The trial court also considered the impact on the community and businesses from which Dillon stole the money.
“The trial court reasoned that there was zero chance that Dillon would ever be able to complete her restitution payments for the approximately $500,000 she originally embezzled. Therefore, the trial court explained that it ‘owe[d] a duty to the citizens and to the company’ to sentence Dillon punitively.
“The trial court also emphasized that she ‘made no effort’ to find solutions or change the relationships in her life following the years of abuse she suffered.
“Ultimately, the trial court held that Dillon’s mitigation evidence failed to overcome the fact that she continued the same criminal behavior while working for two other companies following her release from incarceration after serving the sentence for her original embezzlement convictions – as well as her documented failure to make meaningful efforts to pay restitution. …
“By incurring new convictions, Dillon demonstrated that she was not amenable to rehabilitation. …[W]e hold that the sentence that the trial court imposed represents a proper exercise of discretion.”
Dillon v. Commonwealth, Record No. 1139-21-3, Oct. 4, 2022. CAV (per curiam) From the Circuit Court of the City of Roanoke (Ware). Aaron B. Houchens for appellant. Susan Brock Wosk, Jason S. Miyares for appellee. VLW 022-7-434, 5 pp. Unpublished memorandum per curiam opinion.
