Clarence Junior Thomas v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole
Argued at Richmond, Virginia
CLARENCE JUNIOR THOMAS
MEMORANDUM OPINION * BY
v. Record No. 1690-96-2 CHIEF JUDGE NORMAN K. MOON
APRIL 22, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
James E. Kulp, Judge
(H. Pratt Cook, III, on briefs), for
appellant. Appellant submitting on brief.
(James S. Gilmore, III, Attorney General;
Eugene Murphy, Assistant Attorney General, on
brief), for appellee. Appellee submitting on
brief.
Clarence Junior Thomas appeals his sentence for operating a
motor vehicle after having been declared an habitual offender.
Thomas argues that the trial court coerced his waiver of his
presentence report and that consequently, it is in the best
interests of justice to remand his case for re-sentencing.
Holding that Thomas failed to properly preserve this issue for
appeal and that the ends of justice nor good cause shown justify
waiver of the Rule 5A:18 bar, we affirm.
On April 9, 1996, Thomas pled guilty to operating a motor
vehicle after having been declared an habitual offender (second
offense). At the conclusion of his trial, Thomas requested that
a presentence report be completed. The report was ordered, and
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Thomas was released on bond with a return date of June 11, 1996.
On June 4, 1996, Probation Officer Patricia A. Shaw, in a
letter to the trial judge, stated:
This Officer was assigned to complete the
Presentence Report on April 16, 1996, and a
social history questionnaire was mailed to
the subject's residence on that same date.
Although several attempts were made to reach
the subject, this Officer did not have any
contact with the subject until May 21, 1996.
The subject telephoned the district office
and an appointment was scheduled that day,
for any time except between 12:00 and 1:00.
The subject arrived at the district office at
12:00 and did not have the social history
questionnaire completed. He was told he
could remain at the district office to
complete the questionnaire and this Officer
would see him after 1:00, but he was not able
to wait. This Officer was going to be in
training for the remainder of the week, so
the subject was given an appointment for May
28, 1996, and was told to bring in the
completed questionnaire. On May 28, 1996,
the subject did report to the district
office, however, he had only filled out the
first three (3) pages of the questionnaire.
Some information was obtained from the
subject and the remaining portion of the
questionnaire was returned to the subject,
with instructions to complete the same and
return prior to his sentencing date.
Requests for verifications were sent out, but
none have been returned to date, thus the
Presentence Report will not be completed as
ordered.
On June 11, 1996, Thomas appeared for sentencing but after
learning that his presentence report had not been filed, he
requested the court grant a continuance until such time as the
report could be completed. After reviewing Shaw's letter, the
court stated that "[t]he letter seems to indicate that it's the
fault of the defendant [that the report wasn't completed],
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doesn't it?" Thomas' counsel proffered that many of Thomas'
relatives had been out of town which caused some difficulty in
completing the questionnaire and that as of the time of the
hearing, Shaw had all the information required to complete the
report. The following exchange then occurred between the Court
and Thomas' counsel:
The Court: All right, Mr. Cook, I'm willing to
continue the matter for the
presentence report, but I'm going
to revoke Mr. Thomas' bond.
Mr. Cook: Your Honor, may I have a second to
talk to Mr. Thomas to see if he
would like to proceed?
The Court: All right, because this matter
occurred in November and this
matter is going to be over. We're
not putting it off any further.
Mr. Cook: Yes, Judge. May I have an
opportunity to talk to him to see
if he would like to proceed today
on sentencing?
The Court: All right.
Mr. Cook: Your Honor, in light of that, Mr.
Thomas would like to proceed with
sentencing.
Thomas' assertion that the trial court coerced his waiver of
the presentence report is raised for the first time on appeal.
At no time during the sentencing hearing was the trial judge
asked to vacate Thomas' sentence because of a coerced waiver of
the presentence report nor was any other indication made to the
trial court that Thomas waived under duress. Rule 5A:18 provides
that "[n]o ruling of the trial court . . . will be considered as
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a basis for reversal unless the objection was stated together
with the grounds therefor at the time of the ruling . . . ."
McQuinn v. Commonwealth, 20 Va. App. 753, 755, 460 S.E.2d 624,
626 (1995) (en banc). Having failed to properly raise the issue
at trial, Rule 5A:18 bars Thomas from raising this argument now
except for good cause shown or to meet the ends of justice.
The record establishes that Thomas was made aware of his
unequivocal right to have a presentence report completed and
submitted to the court prior to his being sentenced. He was also
made aware that the sentencing guidelines had been completed and
that a recommendation of thirteen months, a period only slightly
greater than the one year minimum, had been made. Thomas was
informed that the trial judge and the Commonwealth were willing
to proceed with only the guidelines if Thomas was willing to
waive the presentence report.
"Waiver is the intentional relinquishment of a known right
with both knowledge of its existence and intention to relinquish
it." Sink v. Commonwealth, 13 Va. App. 544, 547, 413 S.E.2d 658,
660 (1992). Here, Thomas waived his right to a presentence
report after being informed that it was the court's intention to
revoke his bond in the event that the court granted Thomas'
request for a continuance. It is undisputed on the record that
Thomas was aware of his right and that he had the necessary
intent when he waived that right. That Thomas was required to
decide if he wished to waive his presentence report does not
amount to coercion, even where the trial court announced that it
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would revoke bond in the event that the continuance was granted.
"Although a defendant may have a right, even of constitutional
dimensions, to follow whichever course he chooses, the
Constitution does not by that token always forbid requiring him
to choose." Crampton v. Ohio, 402 U.S. 183 (1971), sentence
vacated, 408 U.S. 941 (1972). Had Thomas decided to await the
presentence report, the trial court's decision to revoke Thomas'
bond on that basis would have been subject to immediate appeal.
Because the record does not show any obvious miscarriage of
justice, neither the ends of justice nor good cause permit waiver
of the Rule 5A:18 bar. Commonwealth v. Mounce, 4 Va. App. 433,
436, 357 S.E.2d 742, 744 (1987). Accordingly, we do not reach
the only issue raised by Thomas on brief and affirm.
Affirmed.
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