Sonny James Kelly v. Commonwealth of Virginia ( 2019 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Malveaux and Senior Judge Frank
Argued at Hampton, Virginia
UNPUBLISHED
SONNY JAMES KELLY
MEMORANDUM OPINION* BY
v. Record No. 0620-18-1 JUDGE ROBERT P. FRANK
SEPTEMBER 24, 2019
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ACCOMACK COUNTY
W. Revell Lewis, III, Judge
Afshin Farashahi for appellant.
Brittany A. Dunn-Pirio, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Appellant was convicted in a bench trial of receiving stolen property. The trial court
sentenced him to five years in prison, with two years and seven months suspended, and placed
him on supervised probation for five years.1 On appeal, appellant challenges the requirement
imposed as a condition of his suspended sentence that he be of good behavior for the rest of his
life upon his release from incarceration.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Appellant was sentenced at the same hearing on a conviction for threatening to burn a
building and a revocation of 2008 suspended sentences. He challenged in separate appeals the
sentences imposed for threatening to burn a building (Kelly v. Commonwealth, No. 1075-18-1)
and the revocation (Kelly v. Commonwealth, No. 1076-18-1).
BACKGROUND
The facts relevant to this appeal are uncontroverted.2 Appellant’s presentence report
revealed that he had a lengthy criminal record beginning in the late 1980s, and including five
grand larcenies and two burglary offenses. Appellant had been on parole or probation numerous
times but never successfully completed probation or parole. Instead, all of his prior probations
or paroles were revoked because he “reoffends, absconds, or does both.” He committed the
instant offense while he was on bond for another offense. At the time of the sentencing hearing,
appellant owed Accomack County $22,000 in court costs and fines.
Appellant argued that he had a history of alcoholism and asked the trial court to sentence
him at the “low end” of the guidelines, which was fifteen months. The Commonwealth argued
that appellant “refused to accept responsibility” because, while awaiting trial, appellant sent the
victims two letters, claiming that he did not know the property was stolen and asking them to
drop the charges.
The trial court sentenced appellant to five years’ incarceration with two years and seven
months suspended. The court ordered that appellant “shall be of good behavior for [the] REST
OF HIS LIFE” following his “release from confinement.” The court also imposed five years of
supervised probation.
This appeal follows.
2
The facts of the offense are that the theft of furniture, appliances, and other household
items, valued at approximately $1,700, was discovered by the owners of the property on January
31, 2017, and some of the stolen items were found at appellant’s residence. Appellant initially
claimed that he bought the items from his uncle for $400 on January 29, 2017, but later admitted
that he knew they were stolen.
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ANALYSIS
We review conditions of probation imposed by a trial court as part of the sentencing
determination for an abuse of discretion. See Du v. Commonwealth, 292 Va. 555, 563-64
(2016); Martin v. Commonwealth, 274 Va. 733, 735 (2007).
On appeal, appellant asserts that requiring good behavior for life is an unreasonable
condition that makes his sentence illegal. While acknowledging he did not raise this issue
below, he seeks review under the “ends of justice exception” to Rule 5A:18.3
The purpose of Rule 5A:18 is “to alert the trial judge to possible error so that the judge
may consider the issue intelligently and take any corrective actions necessary to avoid
unnecessary appeals, reversals and mistrials.” Martin v. Commonwealth, 13 Va. App. 524, 530
(1992) (en banc). “In addition, a specific, contemporaneous objection gives the opposing party
the opportunity to meet the objection at that stage of the proceeding.” Fountain v.
Commonwealth, 64 Va. App. 51, 56 (2014) (quoting Weidman v. Babcock, 241 Va. 40, 44
(1991)).
“‘The ends of justice exception is narrow and is to be used sparingly’ and applies only in
the extraordinary situation where a miscarriage of justice has occurred.” Holt v. Commonwealth,
66 Va. App. 199, 209 (2016) (en banc) (quoting Redman v. Commonwealth, 25 Va. App. 215,
220-21 (1997)); accord Wandemberg v. Commonwealth, 70 Va. App. 124, 137 (2019). “[T]o
show that a miscarriage of justice has occurred, thereby invoking the ends of justice exception,
3
Rule 5A:18 states:
No ruling of the trial court or the Virginia Workers’ Compensation
Commission will be considered as a basis for reversal unless an
objection was stated with reasonable certainty at the time of the
ruling, except for good cause or to enable the Court of Appeals to
attain the ends of justice. A mere statement that the judgment or
award is contrary to the law and the evidence is not sufficient to
preserve the issue for appellate review.
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the appellant must demonstrate that he or she was convicted for conduct that was not a criminal
offense or the record must affirmatively prove that an element of the offense did not occur.”
Holt, 66 Va. App. at 210 (quoting Redman, 25 Va. App. at 221-22).
Whether the ends-of-justice exception to Rule 5A:18 applies requires this Court to
determine first if the alleged error occurred and, if so, would “a grave injustice” occur if the
exception were not applied. Williams v. Commonwealth, 294 Va. 25, 27-28 (2017) (published
order) (quoting Commonwealth v. Bass, 292 Va. 19, 27 (2016)). The exception need not be
applied if the alleged error is merely that the condition imposed was not reasonable in light of the
circumstances of the case. See Brittle v. Commonwealth, 54 Va. App. 505, 520 (2009)
(declining to apply the ends-of-justice exception when a sentence was “not excessive on its
face”).
Appellant contends the “miscarriage of justice” is that the trial court had no authority to
impose the lifetime good behavior condition. A trial court may suspend the imposition of a
sentence, in whole or in part, “under such conditions as the court shall determine.” Code
§ 19.2-303. Additionally, the court “may fix the period of suspension for a reasonable time,
having due regard to the gravity of the offense, without regard to the maximum period for which
the defendant might have been sentenced.” Code § 19.2-303.1. Because appellant did not object
before the trial court to the condition placed on his suspended sentence, and made no motion
within twenty-one days of sentencing to vacate the provision, appellant “cannot prevail on appeal
unless the trial court either lacked jurisdiction or imposed a sentence greater than that authorized
by law.” Simmers v. Commonwealth, 11 Va. App. 375, 377 (1990).
“Absent an alleged statutory or constitutional violation, ‘[t]he sole statutory limitation
placed upon a trial court’s discretion in its determination of such conditions is one of
reasonableness.’” Du, 292 Va. at 563 (quoting Anderson v. Commonwealth, 256 Va. 580, 585
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(1998)). “Probation conditions must be reasonable in light of the nature of the offense, the
[appellant’s] background, and the surrounding circumstances.” Murry v. Commonwealth, 288
Va. 117, 122 (2014).
This Court’s opinion in Simmers is helpful in analyzing “reasonableness.” Simmers was
convicted of leaving the scene of an accident and driving under the influence. See 11 Va. App.
at 376. Driving while intoxicated, he accelerated “well over the speed limit,” ran through a stop
sign, and struck another vehicle in the intersection. Id. at 378. The two occupants of that vehicle
were ejected through the front windshield, and one occupant subsequently died. Id. Simmers
had an extensive record of driving offenses. Id. at 379. The trial court, as part of the sentence,
prohibited Simmers from driving for twenty years. Id. at 376. We held that based on Simmers’
past driving record, the impact of the victim’s death on her family members, and the gravity of
the offense, the twenty-year ban on driving was not unreasonable. Id. at 379.
Here, appellant had a lengthy criminal record. He had been on probation numerous
times, but never successfully completed probation, and all of his prior probations had been
revoked because he re-offended and/or absconded. The present offense was committed while he
was on bond for another offense. While awaiting trial, he sent letters to the victims asking them
to drop the charges, thus interfering with the orderly administration of justice.
Appellant’s history of ignoring court orders and disobeying probation officers indicated
continuing criminal wrongdoing and no amenability to rehabilitation. Based on his history and
attitude, it was not unreasonable for the trial court to impose a lifetime requirement of good
behavior. Therefore, there was no manifest injustice, and the ends of justice exception does not
apply.
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CONCLUSION
Because appellant failed to preserve his claim at trial and there are no grounds for
applying the ends of justice exception to Rule 5A:18, we affirm the decision of the trial court.
Affirmed.
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