Aispuro v. Commonwealth, Record No. 0269-09-1 (Va. App. 3/16/2010)

• Decision Date: 16 March 2010
• Docket Number: Record No. 0269-09-1.
• Parties: JOSE RAMON AISPURO, v. COMMONWEALTH OF VIRGINIA.
• Court: Virginia Court of Appeals

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JOSE RAMON AISPURO, v. COMMONWEALTH OF VIRGINIA.

Record No. 0269-09-1.

Court of Appeals of Virginia, Chesapeake.

March 16, 2010.

Appeal from the Circuit Court of the City of Virginia Beach, Patricia L. West, Judge.

Moody E. Stallings, Jr. (Jonathan L. Stone; Stallings & Bischoff, P.C., on brief), for appellant.

Kathleen B. Martin, Senior Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.

Present: Judges Kelsey, Haley and Senior Judge Bumgardner.

MEMORANDUM OPINION^*

JUDGE JAMES W. HALEY, JR.

I.

Upon his plea of guilty, Jose Ramon Aispuro ("Aispuro") was convicted in the trial court of felony child neglect in violation of Code § 18.2-371.1(A). He received a sentence of ten years imprisonment with all but three years suspended. On appeal, he argues that the sentencing judge erred by abandoning her neutral, judicial role, showing a clear bias against him and performing a prosecutorial function. We disagree with Aispuro, and we affirm his sentence.

II. Facts

Aispuro was indicted in the trial court on one count of felony child neglect in violation of Code § 18.2-371.1(A) and one count of aggravated malicious wounding in violation of Code § 18.2-51.2(A). Pursuant to an agreement with the attorney for the Commonwealth, the trial court entered an order of nolle prosequi as to the aggravated malicious wounding charge. Aispuro entered a guilty plea to the remaining charge, which authorizes a punishment range of between two years and ten years imprisonment and a fine of not more than $100,000. Code §§ 18.2-371.1(A), 18.2-10(d) (punishment range for Class 4 felony). There was no agreement between the parties as to the punishment Aispuro would receive.

At a guilty plea hearing on July 9, 2008, Aispuro told the court he understood the applicable range of punishment. The only evidence introduced at this hearing was a written stipulation between the parties of what the Commonwealth's evidence would have been if the case had gone to trial. According to the stipulation, Aispuro was at home, asleep, on February 1, 2008 when Aispuro's wife woke him up and told him she needed to leave their residence to go to the store. On that day, Aispuro's wife was taking care of M.C., a twelve-month-old child, and M.C.'s older sister, A.C.

The stipulation further states that Aispuro later told the police that he picked up M.C. when she was crying. While Aispuro was walking across the floor of Aispuro's daughter's bedroom, he tripped over A.C. who had apparently moved to a position behind him when he was not looking. Aispuro explained to the police that both he and M.C. fell to the floor and he landed on top of her. When he picked her up, she was not moving and he panicked and shook her. Aispuro then called 911.

Also according to the stipulation, M.C. had surgery on the same day, during which doctors removed a portion of her brain to relieve swelling. Dr. Michelle Clayton, a child abuse pediatrician, stated that she reviewed M.C.'s medical records and, in her opinion, M.C.'s injuries were consistent with: "Inflicted Traumatic Brain Injury, formerly known as Shaken Baby Syndrome, and inconsistent with Defendant's version of events. [Dr. Clayton] would testify that it would take an extremely violent shaking to cause the injuries and subdural hematomas [M.C.] suffered. Dr. Clayton found a knuckle sized bruise on [M.C.]'s forehead." Also according to the stipulation: "[M.C.] is re-learning how to use the left side of her body and the full extent of her developmental delay is unknown."

The pre-sentence report includes additional information regarding the inconsistency between Aispuro's versions of events mentioned in the parties' stipulation:

It should be noted that initially when the suspect Mr. Jose Aispuro was contacted first by Dr. Clayton and Lisa Wall he advised that he fell on top of the child by accident and that he fell on top of the child with all of his weight, and that was the only incident that had taken place prior to the child being somewhat irresponsive. When the suspect was advised that the injury that the victim sustained was probably not due to the individual falling on top of the victim, the suspect altered his story to include aggressive shaking. The suspect then started saying maybe he shook the baby too hard because he panicked after the child fell and he appeared to be trying to make up his story as he went. It should also be noted that during the initial interview with Lisa Wall, which I was present the suspect had stated that the child was not crying and later on after I told the suspect during my interview that I had talked to some other witnesses. He did advise the child was crying and he was trying to console the child and that's why he picked the child up.

Aispuro appeared in the circuit court again on September 9, 2008 before a different judge, Patricia West. The defense called one witness, M.C.'s mother, G.C., who testified that she had not wanted charges brought against Aispuro and that M.C. was "doing great. She's recovering very, very good." G.C. further testified that her daughter was seeing occupational and speech therapists and that the therapists were teaching M.C. to be aware of her left arm. G.C. agreed that she did not exactly know the full consequences of her daughter's injuries. Nor did she know whether M.C. would ever be able to attend regular schools. A former Child Protective Services worker also testified that Aispuro had completed anger management and individual counseling, and had, otherwise, done everything requested of him. At the Septembe 9 hearing, the court stated THE COURT: Well, my issue is that I think I need more information — I would like to have more information in a long form presentence report. I think I'm going to have to know more. I think I would like to have reports from his psychologist who he continues to see. I'm not going to brush this under the rug.

MR. STALLINGS: Judge nobody's asking you to brush it under the rug. We realize how serious it is.

THE COURT: This is very serious, and a short form presentence report just isn't appropriate. I'm going to need a lot more information. I appreciate you having the social workers here today because that helped; but I think if you don't want to have his therapist here, you at least need a letter and get the Commonwealth's agreement that the letter would come in. It might be a good idea to have his therapist here.

* * * * * * *

MR. STALLINGS: I don't really recall judge. I know that Judge O'Brien took the plea and probably was asked would a short form do and he probably said, yes, fine; but if this court's not comfortable sentencing him on a short form, then that's the end of it.

THE COURT: I want to know — All I know about him right now is that something happened one night where he hurt a child very severely.

* * * * * * *

I care about knowing the good about him as well as — right now all I have is this —

MR. STALLINGS: Judge, that's fine because I mean this — this whole notion that he snapped that the Commonwealth threw out and then you picked upon it concerns me a great deal because there's absolutely no evidence of that except what the CHKD person says in there something must have happened, so I think you are exactly right. If you want to know more about him, if he's ever snapped in the past, is anything in his background, then I think that's what we should do; and I will have his counselor here.

THE COURT: And if — If you want to get Doctor Clayton here, you can cross-examine her. That might not be a bad idea either.

MR. STALLINGS: I've done that before. It's really kind of pointless. She's never seen a child that wasn't abused.

THE COURT: Well, because the ones that she hasn't — that weren't abused didn't come into court.

MR. POWERS: She has an extensive report if the court would like to see the report.

THE COURT: That would have to be by agreement with Mr. Stallings.

MR. STALLINGS: No, I don't agree at all. I agree with what's in the presentence report.

MR. POWERS: If he would like to subpoena her, he can. I'm not going to waste her time and the fees that routinely get cut down to have her come here on something that's already been pled to. The stipulation is as the stipulation is. He signed off on it. Her findings are in the stipulation. That's the evidence we have before the court.

THE COURT: I think you might want her here. I want her here. How's that? I want her here. I want his therapist here. I want a long form presentence report.

MR. STALLINGS: Yes, ma'am.

THE COURT: I need to know as much as I can know to make a ruling for sentencing in this case; and I'm sorry if the Navy has got to wait, but I don't do something as serious as this without having full information.

(Emphasis added).

The court then continued Aispuro's sentencing hearing so that the probation office could prepare a long form pre-sentence report, and so that Dr. Clayton could be present to testify. Between the September 9 hearing and Aispuro's final sentencing hearing, Aispuro moved to withdraw his guilty plea. There was a hearing on Aispuro's motion on December 10, during which counsel for Aispuro informed the judge that Aispuro had entered his guilty plea in part because of counsel's belief that Dr. Clayton would not testify, that he believed Dr. Clayton would provide irrelevant testimony regarding the aggravated malicious wounding charge dismissed by the Commonwealth pursuant to the plea agreement, and that he would not have advised Aispuro to enter a guilty plea had he known that the trial court would insist on hearing from Dr. Clayton. The trial court explained that the reason she wanted Dr. Clayton to testify was that she wanted more information about M.C.'s injuries. The attorney for the Commonwealth then informed the court that Dr. Clayton was not the physician who provided regular medical care to M.C. Dr. Clayton only examined M.C.'s medical records and offered an opinion as to whether...