Thomas v. Com.

• Citation: 18 Va.App. 656,446 S.E.2d 469
• Decision Date: 12 July 1994
• Docket Number: No. 0942-92-2,0942-92-2
• Parties: Gary THOMAS, S/K/A Stuart Gary Thomas v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 469

446 S.E.2d 469

18 Va.App. 656

Gary THOMAS, S/K/A Stuart Gary Thomas v. COMMONWEALTH of Virginia.

Record No. 0942-92-2.

Court of Appeals of Virginia.

July 12, 1994.

Robert G. Cabell, Jr., Richmond (H. Pratt Cook, III, on briefs), for appellant.

Richard B. Smith, Asst. Atty. Gen. (James S. Gilmore, III, Atty. Gen., on brief), for appellee.

Before MOON, C.J., and BAKER, BENTON, COLEMAN, KOONTZ, WILLIS, ELDER, BRAY and FITZPATRICK, JJ.

WILLIS, Judge.

Pursuant to a plea agreement, the appellant, Gary Thomas, s/k/a Stuart Gary Thomas, pled guilty to one charge of solicitation to commit a felony and to three charges of grand larceny by receiving stolen goods. The trial court convicted Thomas upon his pleas and ordered a presentence report pursuant to Code § 19.2-299. After receipt of that report and a hearing, the trial court sentenced Thomas to fifteen years in the penitentiary and a suspended five year sentence. On appeal, Thomas contends that, in fixing sentence, the trial court erred in considering offenses and conduct for which he was not on trial.

By opinion issued January 25, 1994, in Thomas v. Commonwealth, --- Va.App. ----, 439 S.E.2d 864 (1994), a divided panel of this Court affirmed Thomas's conviction and sentence. One judge found no error in the trial court's receipt of the questioned information. One judge found the receipt of that information erroneous, but harmless. The third judge found the receipt of that information erroneous. We granted rehearing en banc and stayed the mandate of the panel decision. Upon rehearing en banc, we find no error and affirm the judgment of the trial court.

I.

On September 17, 1991, a grand jury indicted Thomas on two charges of solicitation to commit a felony in violation of Code § 18.2-29 and on four charges of receiving stolen property in violation of Code §§ 18.2-108 and 18.2-95. On January 21, 1992, a grand jury indicted Thomas on twenty-one additional charges of receiving stolen property.

On February 24, 1992, pursuant to a plea agreement, Thomas pled guilty to one charge of solicitation to commit a felony and to three charges of grand larceny by receiving stolen goods. The agreement provided that the other twenty-two charges of receiving stolen property would be dismissed. The agreement further provided that on the charges to which he pled guilty, Thomas would receive sentences to be fixed by the trial court but not to exceed twenty years in the penitentiary.

The trial court convicted Thomas of the four charges to which he had pled guilty. It dismissed the other twenty-two charges, ordered a presentence report pursuant to Code § 19.2-299, and continued the case for sentencing.

At the April 27, 1992 sentencing hearing, Thomas's counsel objected to introduction of the presentence report because it referred to a 1976 charge resulting in a not guilty verdict, to a 1973 charge showing no disposition, and to evidence of the two year sting operation and investigation that resulted in all twenty-six charges brought against Thomas. Overruling this objection, the trial court stated: "[T]he record in this case is clear on the day of the entering of the pleas that there were four charges and the rest of the information is for the Court's purposes only.... [T]he Court has the right to ask its probation officer to furnish it all the information that it can acquire so that the Court will have a full view in the sentencing process."

After considering the presentence report, other evidence, and argument of counsel, the trial court sentenced Thomas to a suspended five year sentence on the solicitation conviction and to consecutive five year sentences on the three receiving stolen property convictions.

II.

Upon finding an accused guilty of a felony,

the court may, or on motion of the defendant shall, before imposing sentence direct a probation officer of such court to thoroughly investigate and report upon the history of the accused, including a report of the accused's criminal record as an adult and available juvenile court records, and all other relevant facts, to fully advise the court so the court may determine the appropriate sentence to be imposed.

Code § 19.2-299(A). The phrase "history of the accused" includes, but is not restricted to, the defendant's history of criminal convictions. See LeVasseur v. Commonwealth, 225 Va. 564, 593-94, 304 S.E.2d 644, 660 (1983), cert. denied, 464 U.S. 1063, 104 S.Ct. 744, 79 L.Ed.2d 202 (1984). A sentencing judge may consider hearsay contained in a probation report. O'Dell v. Commonwealth, 234 Va. 672, 701, 364 S.E.2d 491, 508, cert. denied, 488 U.S. 871, 109 S.Ct. 186, 102 L.Ed.2d 154 (1988). He may rely upon a defendant's criminal record. See Smith v. Commonwealth, 223 Va. 721, 725, 292 S.E.2d 362, 364 (1982) (Russell, J., dissenting). He may consider prior juvenile adjudications, O'Dell, 234 Va. at 701-02, 364 S.E.2d at 506-07, dismissed juvenile charges and pending charges, United States v. Madison, 689 F.2d 1300, 1312 (7th Cir.1982), cert. denied, 459 U.S. 1117, 103 S.Ct. 754, 74 L.Ed.2d 971 (1983), charges for which the accused has been indicted, but not convicted, United States v. Bowdach, 561 F.2d 1160, 1175 (5th Cir.1977), offenses for which the defendant has been convicted but not sentenced, People v. Madonna, 651 P.2d 378, 387 (Colo.1982) (en banc ), convictions on appeal, Peterson v. Commonwealth, 225 Va. 289, 297-98, 302 S.E.2d 520, 525-26, cert. denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983), and evidence of unadjudicated criminal activity, Beaver v. Commonwealth, 232 Va. 521, 529, 352 S.E.2d 342, 347, cert. denied, 483 U.S. 1033, 107 S.Ct. 3277, 97 L.Ed.2d 781 (1987).

Thomas relies upon Callahan v. Commonwealth, 8 Va.App. 135, 379 S.E.2d 476 (1989), and Brown v. Commonwealth, 8 Va.App. 126, 380 S.E.2d 8 (1989). These cases are inapposite. Callahan dealt not with the permissible content of a presentence report under Code § 19.2-299, but with the scope of evidence that may be presented before a jury. Brown dealt with the imposition of sentence for a crime other than the one for which the accused had been convicted.

So long as a sentence falls within the statutory limits for the crime, it lies within the discretion of the trial judge to "consider a criminal record as bearing upon a tendency to commit offenses, the probabilities of rehabilitation, and similar factors." Eaton v. United States, 458 F.2d 704, 708 (7th Cir.), cert. denied, 409 U.S. 880, 93 S.Ct. 208, 34 L.Ed.2d 135 (1972); see Robinson v. Commonwealth, 13 Va.App. 540, 413 S.E.2d 661 (1992).

The recitation of Thomas's personal and criminal history in the presentence report was proper for the trial court's consideration. The trial judge's remarks from the bench affirm that he considered that information in the proper context. The sentences imposed were within the limits imposed by law and were consistent with the plea agreement.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

KOONTZ, Judge, concurring in result.

In my view, the phrase "history of the accused" contained in Code § 19.2-299(A) does not contemplate the inclusion of a "not guilty" finding in a prior criminal case in a presentence report prepared for a defendant's sentencing on a current, unrelated criminal conviction. In the context of a trial court's consideration of a defendant's presentence report, such an acquittal is distinctly different from criminal charges unresolved, dismissed, or never prosecuted. Cf. Johnson v....