Mears v. Commonwealth
| Decision Date | 06 February 2018 |
| Docket Number | Record No. 1131-16-4 |
| Court | Virginia Court of Appeals |
| Parties | TIMOTHY IRVIN MEARS v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Judges Petty, Beales and Decker
Argued at Alexandria, Virginia
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Kathryn C. Donoghue, Senior Assistant Public Defender, for appellant.
Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Timothy Irvin Mears appeals his sentences for being an accessory before the fact to statutory burglary and grand larceny, grand larceny, and larceny with intent to sell, in violation of Code §§ 18.2-18, -91, -95, and -108.01. On appeal, he contends that the circuit court erred in denying his request for a continuance of his sentencing hearing. He also suggests that he was entitled by statute to a substance abuse assessment and that the court committed reversible error by failing to order such an assessment. We hold that the circuit court did not commit reversible error by denying his motion for a continuance. We further conclude that the appellant failed to preserve for appeal his argument that the court erred by not ordering a substance abuse assessment. Accordingly, we affirm the appellant's sentences.
In 2012, the appellant was indicted in Fairfax County for the instant four offenses.1 The crimes involved the theft of jewelry from the appellant's wife and a neighbor in the townhome community where they resided, as well as the theft of tools from the community's maintenance shed. On April 8, 2013, the appellant entered guilty pleas to those charges and was convicted on his pleas. The court ordered a presentence report and continued the matter.
At the sentencing hearing on June 28, 2013 (the 2013 sentencing), the appellant's counsel made an oral motion for a continuance. He noted that the appellant, who was incarcerated, was participating in Fairfax County's Intensive Addictions Program (the IAP program) and was scheduled to finish the program in August. He represented that the appellant, "to his credit," was "apparently doing well" in the IAP program. Counsel also indicated that the presentence report "detail[ed] a long history with substance abuse and . . . ultimately recommend[ed] an ADS evaluation," asserting that this was "the primary basis" for the continuance motion. Although counsel did not explain the meaning of the abbreviation ADS in his argument, the presentence report specifically proposed "[i]ntensive . . . substance abuse treatment."2 The report concluded, "Due to [the appellant's] significant substance abuse issues, it is recommended that [he] undergo a substance abuse evaluation in order to address the possibility of long-term residential treatment." The report also reflected the appellant's statement to the probation officer that he "hop[ed] to be placed in [a] long term residential treatment program following his sentenc[es]."
The appellant's attorney further noted at the 2013 sentencing that, due to the denial of the appellant's bond request and his recent conviction on other charges in neighboring Loudoun County, he was "not going anywhere." Emphasizing his opinion that "the whole case really revolves around drug use," the appellant's counsel requested a continuance so that the appellant could "finish IAP" and "have an ADS evaluation." He did not, however, assert that the court was required to order an ADS or substance abuse evaluation. He also did not suggest that the appellant was statutorily entitled to an evaluation or reference a specific statute.
The circuit court denied the request for a continuance and "proceed[ed] to sentencing." After receiving evidence from the appellant, the judge stated, "I can't ignore the fact that this is by my count a fourth burglary on your record, if I include the Loudoun County matter[, a]nd . . . some fourteen prior felonies." By orders entered July 22, 2013, the court sentenced him on each of the four new convictions to two years six months, explicitly ordering that the sentences be served consecutively, for a total of ten years, plus a period of post-release supervision and the payment of restitution.3
About ten months later, on May 20, 2014, the appellant filed a motion for reconsideration of his sentences (the 2014 motion). In doing so, he pointed out that the Loudoun County burglary conviction mentioned by the judge at the 2013 sentencing had been overturned. He also noted that one of the other crimes previously listed in the presentence report as a burglary "was so designated in error" and that it had been reclassified as grand larceny. Accordingly, herepresented to the court that he stood convicted of only two burglaries rather than the four previously noted by the circuit court at the 2013 sentencing.
Regarding his substance abuse, the appellant asserted in his 2014 motion that he would "soon successfully complete" the IAP Program.4 He also argued that he requested at the 2013 sentencing "that [a Code §] 18.2-254 evaluation be performed prior to his sentencing" but that his request "was denied." He further indicated, however, that "such an evaluation was performed in Loudoun County." The appellant noted that the evaluation was attached to the motion for reconsideration, and he asked the circuit court to review it.5 Finally, he asked the court to "suspend a significant portion" of his sentences to "allow him to participate in probation post-incarceration," and to grant any appropriate additional relief.
The substance abuse assessment—dated June 27, 2013, and performed in Loudoun County by a licensed clinical psychologist pursuant to Code § 18.2-254—reflects that it was prepared based in part on a "[c]linical interview" with the appellant.6 The assessment concluded that the appellant, who was thirty-seven years old, had a "severe" drug and alcohol addiction from which he had suffered since he was a teenager. The evaluator opined that due to the lengthand severity of his addictions and his report that he had not undergone any substance abuse treatment prior to his participation in the jail's IAP program, the appellant "would be an appropriate candidate" for "inpatient . . . treatment." Alternatively, the evaluator recommended "a stint in a 28-day rehab program or a graduated release/halfway house-type program at the end of his prison sentence." He also opined that the appellant would "need to participate in intensive outpatient substance abuse services once released from treatment/prison," to include regular random drug screening.
At the hearing on the appellant's 2014 motion to reconsider his sentences, he argued that the "primary basis" for the motion was that he stood "convicted of two burglaries instead of four" due to adjustments in his criminal history. The appellant's counsel also argued that he had been participating in the IAP program and pointed to "the [Code § 18.2-]254 evaluation" performed a year earlier in Loudoun County. Counsel further suggested that the appellant was "truly repentant" and "motivat[ed] . . . [to] address the addiction issues which have led to the . . . criminal behavior." As a result, counsel asked the court to "consider suspending a greater portion of [the appellant's] sentence." The Commonwealth replied that the appellant had "an extremely extensive criminal history" even without the two burglaries that had been removed from his record. The court also allowed the appellant to speak. He said among other things that he was "focused on . . . not letting the alcohol and drugs and the addiction rule [his] life anymore."
The circuit court granted the appellant's 2014 motion to reconsider his sentences, explaining that it did so "not so much [because of] the statement that [the appellant] made" but because of the change in his criminal history resulting from the fact that he had two fewer burglary convictions than when the court originally sentenced him. The court also noted that it was not "ignoring his double digit number of felony convictions." The court ordered that theappellant's sentences for grand larceny and larceny with intent to sell be altered to run concurrently rather than consecutively and that all other "terms and conditions of the [2013] sentencing order[s] . . . remain in full force and effect," resulting in a sentence of seven years six months to serve.
The appellant was subsequently awarded a delayed appeal covering both the 2013 sentencing orders and the 2014 sentencing modification order.
The appellant contends that the circuit court erred in denying his motion to continue the 2013 sentencing hearing. He also suggests that he was statutorily entitled to a substance abuse assessment prior to sentencing and that the circuit court committed reversible error by failing to order one.
The appellant argues that the circuit court abused its discretion in denying his request to continue his sentencing hearing. He further suggests that he was prejudiced by the denial and that his submission of the Loudoun County substance abuse assessment at the 2014 motion hearing did not remedy this prejudice.
Whether to grant or deny a continuance rests within the "sound discretion" of the circuit court. Ortiz v. Commonwealth, 276 Va. 705, 722, 667 S.E.2d 751, 762 (2008) (quoting Haugen v. Shenandoah Valley Dep't of Soc. Servs., 274 Va. 27, 34, 645 S.E.2d 261, 265 (2007)). A court abuses its discretion when it "commits a clear error of judgment." Lawlor v. Commonwealth, 285 Va. 187, 213, 738 S.E.2d 847, 861 (2013) (quoting Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011)). The abuse-of-discretion standard also "includes review to determine that the discretion was not guided by erroneous legal conclusions" because a circuit court "by definition abuses itsdiscretion when it makes an error of law." Porter v. Commonwealth, 276 Va. 203, 260, 661...
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