Rodas v. Commonwealth

• Docket Number: 1204-22-4
• Decision Date: 01 August 2023
• Parties: DARIO FIGUEROA RODAS v. COMMONWEALTH OF VIRGINIA
• Court: Virginia Court of Appeals

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DARIO FIGUEROA RODAS v. COMMONWEALTH OF VIRGINIA

No. 1204-22-4

Court of Appeals of Virginia

August 1, 2023

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Grace Burke Carroll Judge

Dawn M. Butorac, Public Defender, for appellant.

Mike Eaton, Assistant Attorney General (Jason S. Miyares, Attorney General; Jonathan M. Larcomb, Assistant Attorney General, on brief), for appellee.

Present: Judges Athey, Ortiz and Senior Judge Clements Argued at Leesburg, Virginia

MEMORANDUM OPINION ^[*]

CLIFFORD L. ATHEY, JR. JUDGE

Dario Figueroa Rodas ("Rodas") was convicted of attempted rape by a jury and sentenced by the Fairfax County Circuit Court ("trial court") to ten years of active incarceration. On appeal, Rodas contends that the trial court abused its discretion in its sentencing decision specifically alleging that he was punished for exercising his right to demand a jury trial. For the following reasons, we affirm the trial court's judgment.

I. Background

On appeal, we recite the facts "in the 'light most favorable' to the Commonwealth, the prevailing party in the trial court." Hammer v. Commonwealth, 74 Va.App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).

In 2019, Rodas and his daughter ("M.F.H.") left their home in Honduras and eventually immigrated to Virginia. By late 2020, Rodas and the nine-year-old M.F.H. rented a bedroom in Yakelin Hernandez's Fairfax County home. On January 26, 2021, M.F.H. was in bed when Rodas disrobed, climbed on top of his daughter, removed her clothing, and began to kiss and touch her stomach and legs. M.F.H. stated that her father used his "personal part" to do "stuff that [married people] do" to her "personal part." ^[1] M.F.H. eventually pushed Rodas off of her and fled the room.

M.F.H., who appeared pale and disheveled, encountered Hernandez in the hallway outside of the bedroom. She told Hernandez that Rodas "was touching her" and described how Rodas had put his mouth and hands on her body and genitals. As a result, Hernandez contacted the Herndon police and reported the incident.

When officers arrived, they interviewed M.F.H., Rodas, and others living in the house. Rodas was subsequently transported to the Herndon Police Department, where he denied his daughter's allegations before being arrested. Detective Calo subsequently interrogated Rodas while he was held at the Fairfax Adult Detention Center. Detective Calo, also a native Spanish speaker, believed that his fluency would help to "establish a conversation that flows naturally." During the recorded interview, Rodas admitted to a sexual encounter with his daughter, M.F.H. Rodas stated that M.F.H. "seduced him," in part, by moving her underwear out of the way. He also stated that she "grabbed his penis and put it into her vagina." Rodas also said that M.F.H. had moved up and down on his penis, but that he had not ejaculated.

Rodas was indicted and subsequently tried by a jury for rape. Following a multi-day trial, the jury convicted Rodas of attempted rape. Since Rodas elected to be sentenced without a jury recommendation, the trial court scheduled a subsequent sentencing hearing and ordered that a presentence report be completed.

During the sentencing hearing, the Commonwealth presented the trial court with information that M.F.H. suffered from suicidal ideations as a result of the attempted rape. In arguing for an upward deviation from the sentencing guidelines, the Commonwealth also highlighted Rodas's claim that M.F.H. had seduced him. In response, Rodas told the trial court about his history in Honduras, his lack of a criminal record, and his minimal education. Rodas also advised the trial court that he "happily" would have pleaded "guilty to something" other than rape to "avoid[] a trial, but [he] didn't have that option." He explained the unsuccessful attempts defense counsel made to engage the Commonwealth in plea negotiations, spanning from before the preliminary hearing through the middle of trial.

After hearing argument concerning sentencing wherein the Commonwealth argued that Rodas should be sentenced to ten years, the trial court deviated from the applicable sentencing guidelines and sentenced Rodas to the maximum statutorily allowed period of ten years' incarceration. When pronouncing sentence, the trial court stated:

When the [c]ourt looked at what this case was, when you have a young lady in a transformational age from nine to twelve, before she becomes a young woman, her father is to protect her, and you were the wolf at the door, sir.

The [c]ourt found the statements that she seduced you at nine as despicable. No remorse has been shown. And the [c]ourt finds that 10 years is the appropriate sentence for this case.

Rodas objected, contending that "[t]he fact that he has not shown remorse" was "inappropriate" for the trial court to consider. The trial court overruled his objection and clarified that the trial court focused on his "lack of remorse to the police, [and] lack of remorse for the injury to his child," concluding that "[i]t's certainly something that the [c]ourt could consider on guidelines."

In its written explanation for deviating above the discretionary sentencing guidelines- which recommended a period of incarceration between seven months and two years, with a midpoint of one year and three months-the trial court noted that an upward departure was warranted under the "facts of the case," including Rodas's relationship to the victim, her young age, and his claim that his nine-year-old child had "seduc[ed] him." The trial court also noted that Rodas's lack of remorse, and the psychological "[d]amage to [the] victim" evinced by her "suicidal ideation," provided further support for the upward departure. Rodas appealed.

II. Analysis

A. Standard of Review

"We review the trial court's sentence for abuse of discretion." Scott v. Commonwealth, 58 Va.App. 35, 46 (2011) (citing Valentine v. Commonwealth, 18 Va.App. 334, 339 (1994)). "[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." Minh Duy Du v. Commonwealth, 292 Va. 555, 564 (2016) (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.

B. The trial court did not abuse its discretion when weighing mitigating and aggravating factors in formulating a sentence.

Rodas contends that the trial court abused its discretion when it failed to consider his background and his low risk to reoffend; however, the record does not support his claims that the trial court gave "no consideration to relevant mitigation evidence."

It was within the trial court's purview to weigh the mitigating factors Rodas presented, including his lack of criminal history, his limited education, and his sustained periods of employment. Keselica v. Commonwealth, 34 Va.App. 31, 36 (2000). Rodas mistakenly conflates failure to discuss his mitigation evidence with a failure to consider it. "Barring clear evidence to the contrary, this Court will not presume that a trial court purposefully ignored mitigating factors in blind pursuit of a harsh sentence." Bassett v. Commonwealth, 13 Va.App. 580, 584 (1992). The trial court is not obligated to articulate every factor it considered and the weight given to each one. "Absent a statutory requirement to do so, 'a trial court is not required to give findings of fact and conclusions of law.'" Bowman v. Commonwealth, 290 Va. 492, 500 n.8 (2015) (quoting Fitzgerald v. Commonwealth, 223 Va. 615, 627 (1982)).

In addition, the trial court properly balanced those mitigating factors Rodas asserted against significant aggravating factors, including the familial relationship between Rodas and his daughter and the impact this crime had on her well-being. Further, the trial court properly found "despicable" Rodas's claim that his nine-year-old daughter had seduced him. "[T]he record indicates that the trial court had before it adequate evidence to support a conclusion that mitigating evidence mustered by the defense did little or nothing to qualify the severity with which this defendant should be sentenced." Bassett, 13 Va.App. at 584. The record here supports a ten-year sentence, based, in part, on the aggravating factors outweighing Rodas's mitigation evidence.

C. The trial court did not err in imposing ten years' incarceration.

Rodas claims it was error for the trial court to sentence him to ten years' incarceration. We disagree.

To the extent Rodas asserts a proportionality challenge to his sentence, we reject it. This Court declines to engage in a proportionality review in cases that do not involve life sentences without the possibility of parole. Cole v. Commonwealth, 58 Va.App. 642, 653-54 (2011). We noted in Cole that the Supreme Court of the United States "has never found a non-life 'sentence for a term of years within the limits authorized by statute to be, by itself, a cruel and unusual punishment' in violation of the Eighth Amendment." Id. at 653 (quoting Hutto v. Davis, 454 U.S. 370, 372 (1982) (per...