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Sentence modification correctly denied

Where appellant pleaded guilty to aggravated malicious assault and received a life sentence and a $100,000 fine, the trial court correctly determined that he had not proved any mitigating circumstances when it refused to modify his sentence.

Hammer attack

In 2015, appellant attacked Pedroza with a claw hammer at the retail store where Pedroza worked. The blow severed Pedroza’s spinal cord, leaving him paralyzed from the chest down.

Appellant went to New Jersey. “Law enforcement did not apprehend him until two years later. During that time, the appellant moved to Georgia and then Texas, married, had a child, and attended a community college.”

He entered an Alford plea, which the trial court accepted.

Sentencing and appeal

“The sentencing guidelines recommended a sentence ranging from five years and eight months to twelve years and eight months. The appellant asked to be sentenced in accordance with the guidelines[.] …

“He presented a forensic psychological evaluation and a letter from his wife. The psychological report included the opinion of the evaluator that the appellant ‘meets criteria for a diagnosis of autism spectrum disorder [(ASD)].’ The letter from the appellant’s wife described the importance of the appellant to her and their daughter.

“The Commonwealth asked the trial court to deviate upward from the guidelines based on the level of premeditation, violent and horrific nature of the attack, and the devastating effect on Pedroza.

“In addition, the prosecutor emphasized that the appellant ‘start[ed] a new life for himself’ after attacking Pedroza instead of taking responsibility for his actions.

“The trial court imposed a sentence of life in prison and a $100,000 fine, permissible by law.”

Appellant appealed his sentence. While that appeal was pending, he moved for sentence modification under Code § 19.2-303, citing mitigating circumstances.

“The trial court denied the motion, finding that appellant did not prove any mitigating circumstances and did not establish “any nexus between any ASD and the commission of his crime. In short, based on the record before it, the court found no basis to support modification of the sentence.”

A divided Court of Appeals panel ruled that the circuit court abused its discretion. Appellant filed a petition for rehearing. “We granted the petition for rehearing and have now considered this case anew.”


“Nothing in the record here indicates that the trial court failed to consider the evidence of mitigating circumstances. When denying the limited motion to modify the appellant’s sentence, the trial court issued a detailed eight-page order.

“In that lengthy order, it expressly considered the appellant’s sentencing memorandum, the presentence investigation report, the evidence, the argument presented at sentencing, the appellant’s motion for modification, and his memorandum in support of that motion.

“The court noted that the appellant neglected to specify the mitigating circumstances that he believed supported modification of his sentence, something he was required to do under the express language of the statute.

“Nevertheless, the court inferred, based on the appellant’s memorandum, that his argument was that ‘the dispositive circumstance in mitigation of his offense’ was the evidence that he has ASD. The court then addressed that point.

“After examining the appellant’s evidence relating to ASD, the court found that it ‘had minimal probative value.’ In fact, it found that the appellant did not prove that he had ASD at the time of the offense.

“The order noted that upon consideration of the case, the court found ‘as a matter of fact and law that the defendant … failed to prove any circumstance in mitigation of his offense.’ (Emphasis added).

“In reading the order as a whole in light of the applicable standard of review, we conclude that it does not support a finding that the trial court disregarded the other evidence now highlighted by the appellant as mitigating. …

“The trial court’s single statement that the appellant ‘failed to prove any circumstance in mitigation of his offense,’ without more, simply does not demonstrate that it neglected to consider the undisputed evidence of the appellant’s age, his lack of prior criminal convictions, and his argument that he had shown his amenability to rehabilitation. (Emphasis added). …

“The appellant also suggests that the trial court made a factual finding that was plainly wrong because, according to him, the record definitively establishes that he had ASD at the time of the offense. The author of the psychological evaluation entered into evidence opined that the appellant ‘meets the criteria for a diagnosis of’ ASD. ,,,

The court noted that ‘the only manifestation’ that the ‘psychological evaluator observed of ostensible ASD was that the defendant would smile and nod along while she spoke even though he did not fully comprehend what she was saying.’

“After considering these factors, the court opined that it was ‘unsurprising that the evaluator could only diagnose the defendant with ASD “by history” rather than “currently.”’

“The court further noted that the suggestion that he had ASD was ‘undermin[ed]’ by her observation that he made appropriate eye contact and ‘engaged in reciprocal communication that was cooperative,’ behaviors inconsistent with her own description of an autistic individual.

“Based on this reasoning, the court found that the appellant did not establish that he had ASD at the time of the offense. When viewing the record in the light most favorable to the Commonwealth, we conclude that the trial court did not plainly err in making this factual finding.”


Cellucci v. Commonwealth, Record No. 0195-21-4, March 14, 2023. CAV (published opinion) (Decker, Ortiz dissenting, joined by Causey and Callins). Upon a Rehearing En Banc. From the Circuit Court of Loudoun County (Fisher). Catherine French Zagurskie for appellant. Andrew N. Ferguson, Jason S. Miyares, Donald E. Jeffrey III, Erika L. Malley, Rohiniyurie Tashima for appellee.. VLW 023-7-109, 39 pp.

VLW 023-7-109

Virginia Lawyers Weekly