Kelley v. Commonwealth
| Decision Date | 12 July 2022 |
| Docket Number | 1313-21-1 |
| Parties | JUSTIN MICHAEL KELLEY v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE John W. Brown Judge
(Meghan Shapiro, Senior Assistant Public Defender, Virginia Indigent Defense Commission, on briefs), for appellant.
(Jason S. Miyares, Attorney General; Rebecca M. Garcia, Assistant Attorney General, on brief), for appellee.
Present: Judges Huff, O'Brien and Russell [*]
Justin Michael Kelley (appellant) appeals from the decision of the trial court revoking his previously suspended sentences. Appellant contends that his four-year active sentence is "arbitrary." Appellant also alleges that the trial court lacked jurisdiction to revoke his suspended sentences because the period of suspension and supervision for the underlying convictions had expired. After examining the briefs and record in this case, the panel unanimously holds that oral argument is unnecessary because "the appeal is wholly without merit." Code §17.1-403(ii)(a); Rule 5A:27(a). We affirm the decision of the trial court.
"On appeal of the revocation of a suspended sentence, the appellate court reviews the evidence in the light most favorable to the Commonwealth, the party who prevailed below." Jenkins v. Commonwealth, 71 Va.App. 334, 339 n.2 (2019) (quoting Jacobs v. Commonwealth, 61 Va.App. 529, 535 (2013)).
In 2009, the trial court sentenced appellant to four years' imprisonment, with four years suspended, following his conviction for possession of marijuana with intent to distribute. The trial court also imposed conditions of three years of supervised probation and three years of good behavior.
In 2010, appellant pleaded guilty to two counts of grand larceny and one count of larceny with intent to distribute. The trial court sentenced appellant to five years' imprisonment with four years suspended on the first count of grand larceny, five years' imprisonment with four years and six months suspended on the second count of grand larceny, and two years' imprisonment with two years suspended on the larceny with intent to distribute count. The trial court imposed probation "[f]or an indeterminate period, a minimum of four (4) years supervised, to be released thereafter in the discretion of the Probation Officer upon successful completion of the terms of probation." (Emphasis in original).
During a hearing on the same day, appellant pleaded guilty to violating the terms of his probation from his 2009 conviction. The trial court revoked the previously suspended four years' imprisonment and resuspended three years and six months. The trial court conditioned the suspended sentence "on the same conditions as contained in the previous sentencing order," and extended the good behavior period for one year.
In 2019, appellant pleaded guilty to two counts of aggravated possession of drugs in Ohio. Due to these convictions, appellant's probation officer requested a capias, which the trial court issued on May 1, 2019. Appellant stipulated that he violated Condition 1 of his probation. The trial court revoked appellant's previously suspended sentences totaling thirteen years and twelve months and resuspended the entire amount.[1] The trial court sentenced appellant to five years' probation and imposed "the same conditions as contained in the previous sentencing order."
In 2021, the probation officer filed a major violation report, alleging appellant violated a number of the conditions of his probation, and requested that the trial court issue a capias. The probation officer stated that appellant did not report by phone as required, failed to provide a valid phone number or address, and absconded from supervision. The probation officer submitted an addendum, stating that appellant violated his probation for new convictions of driving on a suspended license, contempt of court, and failing to obey a traffic signal. The probation officer also reported that appellant had twenty probation violations and a larceny of a firearm charge pending in two separate jurisdictions, and twenty-three pending charges in the City of Portsmouth General District Court. The probation officer submitted two subsequent addendums, reporting that appellant had been convicted of petit larceny, grand larceny, and probation violation and still had revocation hearings pending in another jurisdiction.
At the revocation hearing on October 12, 2021, appellant stipulated to violating conditions of his probation, as alleged by the probation officer. Stephanie McConnaughey, appellant's girlfriend, testified that appellant began exhibiting signs of substance abuse at the end of 2020 and he wanted to seek treatment. McConnaughey informed the trial court that she had identified several treatment options for appellant upon his release from imprisonment. The trial court also accepted a proffer that appellant had a job "waiting for him" with his previous employer.
The discretionary sentencing guidelines set a recommended sentencing range of eight months to two years' imprisonment. The Commonwealth advocated for a sentence less than the two years recommended maximum, but more than the eight-month minimum. The Commonwealth provided the trial court with appellant's criminal history, showing twenty-eight felony convictions. Appellant requested a sentence at the low end or in the middle of the sentencing guidelines range, "given that he [was] looking for help" for the "substance abuse problems that led to these underlying larcenies."
Upon conclusion of the arguments, the trial court found that appellant violated the conditions of his probation. The trial court revoked appellant's previously suspended sentences totaling thirteen years and twelve months, resuspended nine years and twelve months, and sentenced appellant to a total active term of four years' imprisonment. In imposing the sentences, the trial court highlighted appellant's substance abuse issues and criminal history. The trial court explained in writing the reason for its departure from the guidelines as
From the outset, appellant seeks to collaterally challenge the trial court's 2019 revocation of the suspended sentences from his 2009 marijuana conviction and 2010 larceny convictions. Appellant asserts that the probation period had expired by 2019, thereby divesting the trial court of jurisdiction to impose the suspended sentences, and that this lack of jurisdiction continued to the present action. Appellant acknowledges that he did not raise this objection at the 2019 revocation hearing or the revocation hearing that is subject to this case, but alleges that the 2019 judgment was void ab initio and could be considered by this Court. Alternatively, appellant asks this Court to apply the ends of justice exception.
Rule 5A:18 provides that "[n]o ruling of the trial court . 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 shown or to enable this Court to attain the ends of justice." Accordingly "this Court 'will not consider an argument on appeal [that] was not presented to the trial court.'" Farnsworth v. Commonwealth, 43 Va.App. 490, 500 (2004) (quoting Ohree v. Commonwealth, 26 Va.App. 299, 308 (1998)). "Rule 5A:18 applies to bar even constitutional claims." Id. (quoting Ohree, 26 Va.App. at 308). "Specificity and timeliness undergird the contemporaneous-objection rule [and] animate its highly practical purpose." Bethea v. Commonwealth, 297 Va. 730, 743 (2019) (quoting Dickerson v. Commonwealth, 58 Va.App. 351, 356 (2011)); Brown v. Commonwealth, 279 Va. 210, 217 (2010). Bethea, 297 Va. at 743.
Appellant first asserts that "[t]he trial court erred by revoking a suspended sentence on an underlying marijuana conviction, when the period of suspension and supervision for that conviction had expired." As appellant notes, the trial court convicted him of possession of marijuana with intent to distribute and sentenced him to four years' imprisonment, all suspended, conditioned on three years' supervised probation, and three years' good behavior. The trial court extended appellant's good behavior period by one year following his guilty plea to the probation violation in 2011. Appellant argues that the trial court "lost jurisdiction and authority over this cause in 2015 at the latest."
Appellant also challenges the revocation of his suspended sentence following his guilty pleas to two counts of grand larceny and one count of larceny with intent to distribute, for which the trial court sentenced him to a total of twelve years' imprisonment, with ten years and six months suspended. The trial court imposed probation "[f]or an indeterminate period, a minimum of four (4) years supervised, to be released thereafter in the discretion of the Probation Officer upon successful completion of the terms of probation." (Emphasis in original). Appellant asserts that "[t]his was an improper delegation of judicial authority to an executive agency," as the trial court "attempted to delegate to the probation officer the discretion to set the length of [appellant's] supervisory sentence, and to assess completion of his supervision terms." Appellant makes clear that he does not allege that this "unlawful delegation" voids the sentencing order but contends "it does limit its enforcement to the specific length of...
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