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Active sentence approved for probation violator

Virginia Lawyers Weekly//December 8, 2022

Active sentence approved for probation violator

Virginia Lawyers Weekly//December 8, 2022

A four-time probation violator’s four-year active sentence was not an abuse of the trial court’s discretion.

Claim not preserved

“Opara argues that Code § 19.2-306.1 prohibited the trial court from sentencing him to an active sentence greater than fourteen days because his fourth probation violation constituted his second ‘technical’ violation under the statute.

“Opara contends that his 2017 probation violation was his only previous “technical” violation and that his other previous probation violations do not constitute ‘technical’ violations under Code § 19.2-306.1. Opara failed to preserve this argument for appeal. …

“Opara contends that he preserved his argument based on his ‘arguments to the [c]ourt prior to imposing his sentence.’ The record reflects, however, that Opara presented no argument as to the number or nature of his previous probation violations before the trial court’s determination that he had violated his probation for the fourth time.

“Moreover, even if the argument made by Opara during his allocution was timely, it is markedly different from the one he now advances on appeal. During his allocution, Opara argued that his fourth probation violation was his ‘first’ and vaguely argued that ‘one act cannot constitute a subsequent violation.’

“This argument does not mention his previous probation violations or how such violations should be construed under Code § 19.2-306.1, and in fact denies the existence of such previous violations. …

“For these reasons, the arguments made by Opara during the revocation hearing were not timely and did not preserve the argument he advances on appeal.”

Reconsideration

“Opara further claims that his motion to reconsider preserved his argument on appeal. In doing so, Opara specifically points to the letter attached to the motion which characterizes his sentence as an ‘unusual lengthy sentence for [a] technical violation.’

“Opara’s claim that his sentence was ‘unusual’ not only failed to argue that his sentence was legally incorrect, but also failed to alert the trial court as to the nature of the argument he now advances on appeal.

“Indeed, his motion was expressly ‘based on the worldwide pandemic caused by COVID-19.’ Accordingly, Opara’s motion to reconsider failed to preserve his argument.

Ends of justice

“Although Opara did not preserve his argument for appeal, he insists that this Court should consider his argument under Rule 5A:18’s ends of justice exception. …

“Opara contends that the ‘trial court’s error caused a grave injustice’ because his ‘criminal sentence [is] over 100 times that permissible by law.’

“In doing so, Opara conflates his underlying sentences, for which seven years and six months remained to be served at the time of the revocation hearing, with the trial court’s revocation of his probation.

“‘Probation is not part of a sentence, but rather an act of grace on the part of the circuit court conditioned upon a defendant’s compliance with reasonable terms and conditions.’ …

“Accordingly, the mere revocation of Opara’s probation does not establish a grave injustice warranting the application of Rule 5A:18’s ends of justice exception. Opara’s request that we consider his argument is therefore based on the merits of his appeal, which is not enough to warrant the application of the ends of justice exception.”

Active sentence

“Opara argues that the trial court abused its discretion by imposing a four-year active prison sentence for a minor violation. … The record shows that Opara violated the terms of his probation during the suspension period. Thus, it was within the trial court’s discretion to ‘impose or resuspend any or all’ of the suspended sentences.”

Affirmed.

Opara v. Commonwealth, Record No. 1350-21-1, Oct. 25, 2022. CAV (Malveaux). From the Circuit Court of the City of Chesapeake (Arrington). Meghan Shapiro for appellant. Matthew P. Dullaghan, Jason S. Miyares for appellee. VLW 022-7-478, 8 pp.

VLW 022-7-478

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