Gant v. Commonwealth

• Decision Date: 19 April 2022
• Docket Number: 0480-21-2
• Parties: TRAVIS JAMES GANT v. COMMONWEALTH OF VIRGINIA
• Court: Virginia Court of Appeals

TRAVIS JAMES GANT v. COMMONWEALTH OF VIRGINIA

No. 0480-21-2

Court of Appeals of Virginia

April 19, 2022

FROM THE CIRCUIT COURT OF AMELIA COUNTY Joseph M. Teefey, Jr. Judge

Ruth E. Nathanson (GreeneHurlocker, PLC, on briefs), for appellant.

Justin B. Hill, Assistant Attorney General (Mark R. Herring ^[1] Attorney General, on brief), for appellee.

Present: Judges Huff, Lorish and Callins Argued at Richmond Virginia

MEMORANDUM OPINION ^[*]

LISA M. LORISH, JUDGE

Travis James Gant argues that the Amelia County Circuit Court erred by denying his request for a presentence report before sentencing him upon his guilty plea. We conclude that the court needed to order a presentence report under Code § 19.2-299(A)(ii) unless Gant waived the preparation of a report, or unless he had a plea agreement. Because neither exception applied, we reverse and remand for a new sentencing.

I. BACKGROUND ^[2]

Gant pled guilty to felony eluding of police on October 27, 2020, during a hearing before Judge Paul W. Cella. At the beginning of that hearing, the prosecutor announced that "we have reached an agreement in this case"-that Gant would "ple[a]d guilty to the felony eluding, and I will be nol prossing the two misdemeanor charges" and "[w]e've also reached an agreement on disposition of the felony matter." There was nothing written to document this oral agreement. Before accepting Gant's guilty plea, Judge Cella engaged Gant in a guilty plea colloquy, confirming that his plea was knowing, voluntary, and intelligent. During that colloquy, Judge Cella asked what the "sentencing recommendation" was, and the attorney for the Commonwealth responded that "the recommendation if he pleads guilty will be probation for one year, no active jail time."

Judge Cella responded by asking if sentencing guidelines had been prepared, and Gant's counsel conveyed that they had not been. Gant's counsel then said, "I think he has one reckless driving on his record." Both attorneys agreed that they thought the guidelines would "come back probation and no incarceration." Judge Cella then asked counsel to "submit Guidelines so that we can have them for the file, because the Supreme Court audits the files to see if we have Guidelines." There was no mention of a presentence report at any time.

Judge Cella then finished the plea colloquy, found Gant guilty, and imposed the agreed sentence. Judge Cella again reminded counsel to obtain the guidelines for the file. At this point, Gant's counsel apologized and informed the court, "I do believe [Gant] had one obstruction charge, that was a long time ago." Judge Cella confirmed with counsel that this prior offense was still a misdemeanor, making the present conviction his first felony, and then remarked, "I understand. This is one of those cases where being convicted of a felony is probably some punishment in and of itself. That's the decision."

A corresponding trial and sentencing order was entered the next day. This order documented the defendant's plea and that the court found the defendant guilty of the felony eluding charge. The order then stated that "[t]he presentence report is waived by the Court, by the defendant after consultation with counsel, and by the attorney for the Commonwealth" and that "[p]ursuant to provisions of Virginia Code § 19.2-298.01, the Court has considered and reviewed the applicable discretional sentencing guidelines and the guidelines worksheets."

After the hearing, a probation officer completed the guidelines calculation which recommended a sentence range of seven months to one year of incarceration with a midpoint of ten months. A few days after that, Judge Cella entered an order rescinding his prior order, stating that the prior order was "based on erroneous information that was represented to the Court" and that "this case shall be scheduled for a new sentencing hearing."

The new sentencing hearing was originally set for December 22, 2020, but Gant never received notice of that hearing.

The next hearing took place on April 1, 2021, before Judge Joseph M. Teefey.^[3] At the very beginning of the hearing, Gant's counsel explained to the court the history and posture of the case and that (after the original sentencing) the guidelines came back with a different recommendation than the parties had anticipated. Gant's counsel then requested a presentence report "for the purpose of just doing a background investigation and putting him in a better light before the Court." Judge Teefey responded that "[Gant] waived that because he waived a presentence report when it was initially put into place." Gant then spoke up himself and said, "I never got a presentence report," and Gant's counsel explained again that "we had originally waived that because we had thought the guidelines were going to be probation, no incarceration" and that "[w]e didn't realize it was going to call for active incarceration which it does now." Judge Teefey responded that "you probably should have made that motion a long time ago when this thing was put back on the docket" and that "at the last minute you walk into court and you ask for a presentence report when you waived it before, the Court deems it was waived."

Then, the court went on to sentence Gant. It reviewed the guidelines and stated, "we're talking about a sentence range of seven months to one year, midpoint ten months." The Commonwealth then advocated for a sentence at the high end of the guidelines. Gant's counsel continued to ask for a sentence of probation. No one mentioned a plea agreement. Judge Teefey then explained that the sentencing guidelines put him "in a category where it looks like you need to serve an active sentence," and sentenced Gant to the midpoint of the guidelines: ten months of active incarceration, with two years and two months of a three-year sentence suspended. This Court granted Gant's petition for appeal.^[4]

II. ANALYSIS

Gant assigns error to the circuit court's refusal to grant his request for a presentence report pursuant to Code § 19.2-299(A), which he alleges denied him a fair sentencing hearing. When an appellant argues that a trial court "misapplied a statutory exception . . . the argument presents a mixed question of law and fact, which we review de novo on appeal." Hodges v. Commonwealth, 64 Va.App. 687, 693 (2015).

The Commonwealth argues that Gant procedurally defaulted his assignment of error by failing to argue to the trial court that he had an "absolute right" to a presentence report.^[5] But Rule 5A:18 "does not prohibit reliance on statutes or cases not presented to the trial court to support, on appeal, a position otherwise adequately presented at trial." Lash v. County of Henrico, 14 Va.App. 926, 929 (1992) (quoting R. Martineau, Modern Appellate Practice § 3.8 (1983)).

"Nor does [Rule 5A:18] prevent this Court, on its own initiative, from relying on statutory or judicial authority that was not presented to the trial court or referred to in the briefs submitted by the parties." Id. As we explain below, absent any plea agreement or waiver, Gant was entitled to a presentence report under Code § 19.2-299(A). There was no plea agreement in place at the April 2021 hearing, so when Gant requested a presentence report at the beginning of that hearing, the trial court understood that the issue boiled down to waiver. Gant's counsel preserved the issue of whether any waiver had occurred by arguing that any prior waiver took place when the parties had a plea agreement, but that circumstances had changed by the April 2021 hearing. Therefore, whether Gant was entitled to a presentence report was "adequately presented" to the court.^[6]

Turning to the statute at the center of this case, Code § 19.2-299(A) sets out the circumstances when a court may order a presentence investigation report, and when a court must order a presentence report. Code § 19.2-299(A). A report is mandatory when a defendant is adjudged guilty of any of the felony offenses listed in subsection (iii). Id. Where instead a defendant is found guilty of one of the offenses listed in subsection (i), the court "may, or on motion of the defendant shall" order a report. Id. Finally, for all other felonies,

the court may [order a report] when there is a plea agreement between the defendant and the Commonwealth and shall [order a report], unless waived by the defendant and the attorney for the Commonwealth, when the defendant pleads guilty or nolo contendere without a plea agreement or is found guilty by the court after a plea of nolo contendere.

Id.

Thus, for the broad category of felonies that are not specifically listed in (i) or (iii), the statute requires a presentence report unless there is a plea agreement, or the defendant and the attorney for the Commonwealth both waive preparation of the report. When there is a plea agreement, or when the parties both waive a presentence report, the court retains the discretion to order a presentence report but is not required to do so. Before 1999, the statute did not distinguish between cases with plea agreements and cases without plea agreements. Instead, the statute required a presentence investigation report after a felony conviction whenever the defendant requested one. See Code § 19.2-299(A) (1983) ("the court may, or on the motion of the defendant shall . . .").

Gant relies on several of our prior cases to argue that he has an "absolute right" to have a presentence investigation and report prepared prior to his sentencing. Indeed, we explained that "[a] defendant convicted of a felony has an absolute right to have a presentence investigation and report prepared upon his request and submitted to the court prior to the pronouncement of sentence." Duncan v. Commonwealth, 2 Va.App 342, 345-46 (...