Pope v. Commonwealth
| Decision Date | 20 September 2022 |
| Docket Number | 0151-22-1 |
| Parties | JAMONTE NISHAN POPE v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Robert G MacDonald, Judge
(Kurt A. Gilchrist, on brief), for appellant. Appellant submitting on brief.
(Jason S. Miyares, Attorney General; David A. Mick, Assistant Attorney General, on brief), for appellee.
Present: Judges Humphreys, Athey and Callins
Jamonte Nishan Pope appeals the Circuit Court of the City of Chesapeake's decision to impose an active sentence of two years' imprisonment upon him following his guilty plea and conviction for one felony count of forging public records, in violation of Code § 18.2-168. After examining the briefs and record in this case and for the reasons stated below, the panel unanimously holds that oral argument is unnecessary because the appeal is frivolous and "wholly without merit." Code § 17.1-403(ii)(a); Rule 5A:27(a).
On appeal, "we view the record in the light most favorable to the Commonwealth because it was the prevailing party below." Blowe v. Commonwealth, 72 Va.App. 457 461 (2020) (quoting Delp v. Commonwealth, 72 Va.App. 227, 230 (2020)).
On November 21, 2019, a Virginia State Police trooper stopped the vehicle that appellant was driving after receiving a notification that the tags on the vehicle had been stolen. Appellant, the sole occupant of the vehicle at the time of the traffic stop, was unable to produce a registration card for the vehicle, nor was he able to provide his driver's license or any type of identification. After advising appellant of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), the trooper asked appellant for his name and age. Appellant stated that his name was "Dominic Pope" and that his date of birth was October 29, 1988. The trooper verified that the license plates had been stolen in July 2019 and issued appellant a summons for possession of stolen property. Appellant signed the summons as "Dominic Pope." Shortly afterward, appellant's brother, Dominic Pope, contacted the Virginia State Police and notified them that he was not the person who had been stopped by the trooper. The trooper conducted additional investigation and identified Jamonte Pope as the person from the traffic stop using a DMV photograph.
The Commonwealth charged appellant with two felonies, namely, one count of forging public records and one count of uttering a forged public record. The Commonwealth also charged appellant with four misdemeanors, namely, one count of identity theft to avoid arrest, one count of receiving stolen property, one count of driving without a license, and one count of failure to appear. Appellant entered into a written plea agreement, whereby he agreed to plead guilty to one count of forging public records in violation of Code § 18.2-168, which is a Class 4 felony, and the Commonwealth agreed to nolle prosequi the remaining five charges. There was no agreement as to sentencing.
Appellant appeared in circuit court and pled guilty to forging public records. The circuit court reviewed the written plea agreement and stipulation of facts and then engaged in a plea colloquy with appellant. Appellant acknowledged his understanding that sentencing was in the discretion of the circuit court and that he had reviewed the discretionary sentencing guidelines with his attorney. Appellant also acknowledged his understanding that the discretionary sentencing guidelines recommended a "low range of [eleven] months with a midpoint of [one] year, [nine] months, and then on the high end, [two] years and [five] months." He also confirmed his understanding that the circuit court was not bound by the discretionary sentencing guidelines and the maximum sentence for the offense was ten years. The circuit court accepted his guilty plea and convicted appellant of one count of forging public records.
For sentencing purposes, the Commonwealth proffered appellant's extensive criminal history. The Commonwealth noted that appellant was charged and convicted of new criminal charges in a different jurisdiction while released on bond for the current offense. Appellant proffered mitigating evidence including correspondence from the mother of appellant's children stating that appellant was "a great dad" to his five children. Appellant also proffered that he "gave his brother's name [to the trooper] because the mother of his child was pregnant and he wanted to be there for the child's birth, so he wanted to avoid a warrant being served on him." Appellant asked the circuit court to sentence him to the low end of the sentencing guidelines. After considering the parties' arguments, the circuit court sentenced appellant to five years' incarceration with three years suspended and placed him on supervised probation upon his release for five years. This appeal followed.
We review a circuit court's criminal sentencing decision for abuse of discretion. Du v. Commonwealth, 292 Va. 555, 563 (2016). "[W]hen a statute prescribes a maximum imprisonment penalty, and the sentence does not exceed that maximum, the sentence will not be overturned as being an abuse of discretion." Id. at 564 (quoting Alston v. Commonwealth, 274 Va. 759, 771-72 (2007)). "Criminal sentencing decisions are among the most difficult judgment calls trial judges face." Id. at 563. "Because this task is so difficult, it must rest heavily on judges closest to the facts of the case-those hearing and seeing the witnesses, taking into account their verbal and nonverbal communication, and placing all of it in the context of the entire case." Id.
Appellant argues on appeal that the circuit court abused its discretion when it imposed an active sentence of two years' imprisonment.[1] Specifically, appellant maintains that the circuit court "failed to take into account the gravity of the offense [and] the mitigating evidence offered by [appellant]." Appellant asserts that the sentence was "disproportionate to the facts of the cases."[2]
Determining what weight to assign to any mitigating factors presented by a defendant is squarely within a circuit court's purview. See Keselica v. Commonwealth, 34 Va.App. 31, 36 (2000). Here, the circuit court heard the mitigating and aggravating evidence proffered by the parties. The Commonwealth presented substantial facts in aggravation against appellant's mitigation evidence. The record demonstrates that appellant had an extensive criminal history and incurred additional charges and convictions while on bond for this pending conviction. In addition, appellant acknowledged during the plea colloquy that he faced a maximum sentence of ten years. Most importantly, the sentence the circuit court imposed on appellant was within the range set by the legislature for a Class 4 felony. See Code §§ 18.2-10 and 18.2-168. Once it is determined that a sentence was within the statutory range, appellate review is complete. Thomason v. Commonwealth, 69 Va.App. 89, 98-99 (2018).
For the foregoing reasons, the circuit court's decision is affirmed.
Affirmed.
Although I agree with the majority that the defendant's appeal is wholly without merit, I believe we should affirm the appeal under Rule 5A:18, which requires a defendant seeking to preserve an issue for appeal to object "with reasonable certainty."
Because "neither the Code nor Rule 5A:18 is complied with merely by objecting generally to an order," Lee v. Lee, 12 Va.App. 512, 515 (1991) (en banc), the defendant must specify the legal theory on which the objection is based, Maxwell v. Commonwealth, 287 Va. 258, 268 (2014). For instance, a Confrontation Clause objection does not preserve a due process challenge to the same evidence. Cox v. Commonwealth, 65 Va.App. 506 (2015); see also Henderson v. Commonwealth, 59 Va.App. 641, 665 n.5 (2012) (en banc); Roseborough v. Commonwealth, 55 Va.App. 653, 668-69 (2010), overruled on other grounds, 281 Va. 233 (2011). Even raising a subdivision of that theory does not preserve another, distinct sub-theory. Shapiro v. City of Va. Beach, No. 0383-09-1, 2010 WL 2265034 (Va. Ct. App. June 8, 2010) ().[3]
The same principles apply to sentencings and probation hearings. See Walton v. Commonwealth, 24 Va.App. 757, 761 (1997); Alston v. Commonwealth, 49 Va.App. 115, 122 (2006); Henderson, 59 Va.App. at 665 n.5. Specifically, the Virginia Supreme Court has held that arguing for a different sentencing arrangement than the one ultimately imposed is not the same as timely and specifically objecting to the sentencing decision, with the result that sentencing arguments not accompanied by a specific objection to the sentence actually imposed are not preserved for appeal. Williams v. Commonwealth, 294 Va. 25, 26-27 (2017); see also Singson v. Commonwealth, 46 Va.App. 724, 748 (2005).
A defendant challenging a sentence that falls within the statutory limits can raise only one legal rule as a basis for reversal: the requirement that trial courts not abuse their discretion. Trial courts' discretion to make certain decisions is constrained by legal rules and by the boundaries that circumscribe sound judgment. Hence, a trial court can abuse its discretion, or make an unreasonable judgment, in any of three ways: making a factual finding that is plainly wrong or unsupported by the evidence, allowing an error of law to affect its decision, or improperly weighing the factors that are relevant to its determination. Owens v Owens, 41 Va.App. 844, 853 (2003) (citations omitted); Porter v. Commonwealth, 276 Va. 203, 260 (2008) (citations omitted); Dang v. Commonwealth, 287 Va. 132,...
To continue reading
Request your trial