Cellucci v. Commonwealth
| Docket Number | Record No. 0195-21-4 |
| Decision Date | 14 March 2023 |
| Citation | 77 Va.App. 36,884 S.E.2d 242 |
| Parties | Bradford T. CELLUCCI v. COMMONWEALTH of Virginia |
| Court | Virginia Court of Appeals |
Catherine French Zagurskie, Chief Appellate Counsel (Virginia Indigent Defense Commission, on briefs), for appellant.
Andrew N. Ferguson, Solicitor General (Jason S. Miyares, Attorney General; Donald E. Jeffrey, III, Senior Assistant Attorney General; Erika L. Malley, Principal Deputy Solicitor General; Rohiniyurie Tashima, John Marshall Fellow, on brief), for appellee.
Present: Chief Judge Decker, Judges Humphreys, Beales, Huff, O'Brien, AtLee, Malveaux, Athey, Fulton, Ortiz, Causey, Friedman, Chaney, Raphael, Lorish, Callins and White
OPINION BY CHIEF JUDGE MARLA GRAFF DECKER
Bradford T. Cellucci was convicted of aggravated malicious wounding in violation of Code § 18.2-51.2. The trial court denied the appellant's motion to modify his sentence pursuant to Code § 19.2-303. On appeal, a divided panel of this Court reversed that decision. Cellucci v. Commonwealth , No. 0195-21-4, 2022 WL 1547990 . The Court subsequently granted the Commonwealth's petition for rehearing en banc, stayed the mandate, and reinstated the appeal on the docket. Upon rehearing en banc, we hold that the trial court did not abuse its discretion and affirm the judgment.
BACKGROUND 1
The appellant's underlying conviction arose from his premeditated attack on Bryan Pedroza. In 2015, the appellant went to the retail store where the victim worked during his shift and waited approximately twenty minutes for Pedroza to approach him. When Pedroza took him to the fitting rooms, the appellant struck him from behind with a claw hammer, severing his spinal cord. The attack left Pedroza permanently paralyzed. At the time, the appellant was 23 years old, and the victim was 18.
After the attack, the appellant left Virginia and 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.
Following his arrest, the appellant was charged with aggravated malicious wounding. He entered a guilty plea pursuant to Alford v. North Carolina , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).2 The trial court accepted the plea and found the appellant guilty.
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, explaining that he felt compelled to commit the offense after his girlfriend told him that Pedroza had raped her. 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.3 See Code §§ 18.2-10, -51.2. It based the upward departure from the sentencing guidelines on the level of premeditation and the severity of the victim's injury.
The appellant sought review of his sentence on appeal in this Court, arguing that it was an abuse of discretion. Citing Minh Duy Du v. Commonwealth , 292 Va. 555, 790 S.E.2d 493 (2016), the Court denied the petition for appeal. Cellucci v. Commonwealth , No. 1088-20-4 (Va. Ct. App. Apr. 9, 2021) (order). The appellant sought a hearing by a three-judge writ panel and, after that was denied, petitioned for appeal in the Supreme Court of Virginia. That Court refused his petition.
While his petition for appeal was pending in this Court, the appellant made a motion in the trial court to modify his sentence pursuant to Code § 19.2-303. He argued that "there are circumstances in mitigation of the offense." The appellant referenced his "[s]entencing [m]emorandum, the pre-sentencing report, and evidence and argument at [his] sentencing hearing." In support of his motion, he also filed a five-page memorandum contending that his sentence violated the Eighth Amendment and Due Process Clause of the Federal and State Constitutions.
The trial court denied the motion, concluding that the appellant did not prove any circumstances mitigating the offense. The court specifically found that the appellant did not establish that he had ASD. In addition, the court held that regardless, the appellant did not allege 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.
On appeal, a divided panel of this Court concluded that the trial court abused its discretion by denying the appellant's motion for modification. Cellucci v. Commonwealth , No. 0195-21-4, 2022 WL 1547990 . The panel majority reasoned that the trial court erroneously concluded that no mitigating circumstances existed and, therefore, failed to consider all the evidence in mitigation. Id. , slip op. at 12. We granted the petition for rehearing and have now considered this case anew. See Holt v. Commonwealth , 66 Va. App. 199, 206, 783 S.E.2d 546 (2016).
ANALYSIS
The appellant argues that the trial court abused its discretion by denying his motion under Code § 19.2-303 for modification of his sentence. He contends that the court erred by failing to consider his evidence of mitigating circumstances and by ruling that he did not prove any mitigation. The appellant additionally suggests that, contrary to the trial court's finding, he proved he had ASD at the time of the offense. After reviewing the record and the relevant law, we conclude that the trial court appropriately considered the evidence of mitigating circumstances. The court acted within its purview in finding that the evidence did not establish mitigating circumstances as contemplated by law. Further, the court was not plainly wrong in finding that the appellant did not prove that he had ASD at the time of the offense.4
An appellate court applies the abuse of discretion standard of review to both a trial court's sentencing decision and its denial of a motion under Code § 19.2-303 to modify that sentence. See Rawls v. Commonwealth , 272 Va. 334, 351, 634 S.E.2d 697 (2006) ; Suhay v. Commonwealth , 75 Va. App. 143, 156, 875 S.E.2d 82 (2022). "This bell-shaped curve of reasonability governing our appellate review rests on the venerable belief that the judge closest to the contest is the judge best able to discern where the equities lie." Minh Duy Du , 292 Va. at 564, 790 S.E.2d 493 (quoting Sauder v. Ferguson , 289 Va. 449, 459, 771 S.E.2d 664 (2015) ). "Only when reasonable jurists could not differ can we say an abuse of discretion has occurred." Commonwealth v. Swann , 290 Va. 194, 197, 776 S.E.2d 265 (2015) (quoting Grattan v. Commonwealth , 278 Va. 602, 620, 685 S.E.2d 634 (2009) ). A trial court abuses its discretion by failing to consider a significant relevant factor, giving significant weight to an irrelevant or improper factor, committing a clear error of judgment, or making a mistake of law. See Minh Duy Du , 292 Va. at 564-65, 790 S.E.2d 493 ; Lawlor v. Commonwealth , 285 Va. 187, 213, 738 S.E.2d 847 (2013).
Factual questions underlying a discretionary determination are within the purview of the trial court. Correll v. Commonwealth , 232 Va. 454, 468, 352 S.E.2d 352 (1987) ; Suhay , 75 Va. App. at 158-59, 875 S.E.2d 82. An appellate court "review[s] factfinding with the highest degree of ... deference." Caldwell v. Commonwealth , 298 Va. 517, 526, 840 S.E.2d 343 (2020) (quoting Vasquez v. Commonwealth , 291 Va. 232, 236, 248, 781 S.E.2d 920 (2016) ). As a result, "we ‘presume the judgment of the trial court to be correct’ and reverse only if the ... decision is ‘plainly wrong or without evidence to support it.’ " Kelly v. Commonwealth , 41 Va. App. 250, 257, 584 S.E.2d 444 (2003) (en banc) (quoting Davis v. Commonwealth , 39 Va. App. 96, 99, 570 S.E.2d 875 (2002) ).
This well-established analytical framework along with the statutory backdrop guides our decision in this case. A trial court's authority to suspend or modify an unserved portion of a felony sentence is restricted to situations in which the person has not yet been transferred to the Department of Corrections or within 60 days of such transfer. Code § 19.2-303. The statute provides that a court "may ... suspend or otherwise modify" the unserved portion of a felony sentence if "there are circumstances in mitigation of the offense" and "it appears compatible with the public interest." Id. The statute simply gives a trial court the discretion to suspend or modify a sentence if certain threshold circumstances are established.5 See generally Stafford Cnty. v. D.R. Horton, Inc. , 299 Va. 567, 576, 856 S.E.2d 197 (2021) (). These parameters make clear that a trial court's discretion under Code § 19.2-303 to modify a sentence is more limited than the authority it exercises in imposing the original sentence.6 See generally Minh Duy Du , 292 Va. at 563-64, 790 S.E.2d 493 ().
Consideration of a motion to modify a sentence under this statute is not a new sentencing event. See Code § 19.2-303. Instead, such a motion is viewed in conjunction with the sentencing proceeding that came before it. See generally Minh Duy Du , 292 Va. at 562, 790 S.E.2d 493 (...
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