COURT OF APPEALS OF VIRGINIA
Present: Senior Judges Annunziata, Clements and Frank UNPUBLISHED
BRAD O’NEAL ALLEN MEMORANDUM OPINION * v. Record No. 1280-21-2 PER CURIAM AUGUST 16, 2022 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF KING GEORGE COUNTY Herbert M. Hewitt, Judge
(Alexander Raymond, on brief), for appellant. Appellant submitting on brief.
(Jason S. Miyares, Attorney General; Tanner M. Russo, Assistant Attorney General, on brief), for appellee.
Counsel for Brad O’Neal Allen filed a brief on his behalf accompanied by a motion for
leave to withdraw in accordance with Anders v. California, 386 U.S. 738, 744 (1967). A copy of
that brief has been furnished to Allen with sufficient time for him to raise any matter that he
chooses. Allen has not filed any pro se supplemental pleadings. 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). The trial court’s
judgment is affirmed.
Following his guilty pleas, the trial court convicted Allen of distributing a Schedule I or
II controlled substance and conspiracy to distribute a Schedule I or II controlled substance. The
trial court sentenced him to a total of forty years’ incarceration with thirty-two years suspended.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. On appeal, Allen argues that the trial court abused its discretion by imposing a disproportionate
sentence that exceeded the discretionary sentencing guidelines.
BACKGROUND 1
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)).
On June 17, 2021, Allen pleaded guilty to distributing a Schedule I or II controlled
substance and conspiracy to distribute a Schedule I or II controlled substance. In conjunction
with his pleas, Allen signed an “Acknowledgment of Rights” form and submitted it to the trial
court. By signing the form, Allen confirmed that he was “aware of the nature of the charges
against” him and “the range of possible punishment for each charge.” He understood that by
pleading guilty he was waiving several rights, including the rights to testify at trial, confront the
witnesses against him, and appeal certain decisions of the trial court. Allen confirmed that he
had been “advised of each of these rights in open Court” and “understood” them. The trial court
accepted Allen’s pleas, continued the matter for sentencing, and ordered a presentence
investigation report.
1 The record on appeal does not contain timely-filed transcripts for the plea or the sentencing hearings. See Rule 5A:8(a). Although the transcripts are not “necessary to permit resolution” of Allen’s assignment of error, we confine our review to the record manuscript and the exhibits before the trial court. See Rule 5A:8(b)(4)(ii); Jacks v. Commonwealth, 74 Va. App. 783, 795 (2022) (en banc) (noting that issues are waived under Rule 5A:8 only when a transcript or written statement of facts in lieu of transcript is “necessary to permit resolution of appellate issues”). -2- Allen filed a sentencing memorandum with the trial court. Allen argued that the trial
court should sentence him “at or below” the “low range” of the adjusted discretionary sentencing
guidelines. 2 He contended that he had “shown remorse” and accepted responsibility by pleading
guilty. He asserted that his wife’s death contributed to his drug abuse and asked the trial court to
impose drug treatment and counseling as a condition of probation.
At the sentencing hearing, Allen introduced letters from his sister, aunt, and mother. The
letters described Allen as depressed and connected his drug use to the death of his wife. Allen’s
sister wrote that his incarceration for the present charges had removed him from negative
influences and given him a “fresh start.” In addition, his mother expressed hope because Allen
had been receiving “help” for his addiction while incarcerated. By final order entered October
26, 2021, the trial court sentenced Allen to twenty years’ incarceration with sixteen years
suspended for each conviction. Allen appeals.
ANALYSIS
Allen argues that the trial court abused its discretion by imposing a “disproportionate”
sentence that exceeded the discretionary sentencing guidelines. He maintains that the court
should have imposed less active incarceration because he “accepted responsibility for his crimes”
and was addressing his “drug addiction,” which had “spiraled out of control” after his wife’s
death.
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, 654
(2011). We noted in Cole that the Supreme Court of the United States “has never found a
2 The discretionary sentencing guidelines recommended between three years and two months’ incarceration and five years and two months’ incarceration, with a midpoint of four years and three months; the adjusted guideline range was from one year, seven months, and two days to five years and two months. -3- 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 curiam)). Cf. Vasquez v. Commonwealth, 291 Va. 232,
243 (2016) (rejecting Eighth Amendment challenge to 133-year active sentence because the
sentence was imposed for “eighteen separate crimes”). “It lies within the province of the
legislature to define and classify crimes and to determine the punishments for those crimes.”
DePriest v. Commonwealth, 33 Va. App. 754, 764 (2000).
“The sentencing guidelines are advisory only and do not require trial courts to impose
specific sentences.” Runyon v. Commonwealth, 29 Va. App. 573, 577-78 (1999). Accordingly, a
judge’s failure to follow the sentencing guidelines is “not . . . reviewable on appeal or the basis
of any other post-conviction relief.” Code § 19.2-298.01(F). “We review the trial court’s
sentence for abuse of discretion.” Scott v. Commonwealth, 58 Va. App. 35, 46 (2011).
It is well-established that “when 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)). “[O]nce it is determined that a sentence is
within the limitations set forth in the statute under which it is imposed, appellate review is at an
end.” Thomason v. Commonwealth, 69 Va. App. 89, 99 (2018) (quoting Minh Duy Du, 292 Va.
at 565). Here, appellant’s sentence was within the range set by the legislature. See Code
§§ 18.2-248 and 18.2-256.
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COURT OF APPEALS OF VIRGINIA
Present: Senior Judges Annunziata, Clements and Frank UNPUBLISHED
BRAD O’NEAL ALLEN MEMORANDUM OPINION * v. Record No. 1280-21-2 PER CURIAM AUGUST 16, 2022 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF KING GEORGE COUNTY Herbert M. Hewitt, Judge
(Alexander Raymond, on brief), for appellant. Appellant submitting on brief.
(Jason S. Miyares, Attorney General; Tanner M. Russo, Assistant Attorney General, on brief), for appellee.
Counsel for Brad O’Neal Allen filed a brief on his behalf accompanied by a motion for
leave to withdraw in accordance with Anders v. California, 386 U.S. 738, 744 (1967). A copy of
that brief has been furnished to Allen with sufficient time for him to raise any matter that he
chooses. Allen has not filed any pro se supplemental pleadings. 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). The trial court’s
judgment is affirmed.
Following his guilty pleas, the trial court convicted Allen of distributing a Schedule I or
II controlled substance and conspiracy to distribute a Schedule I or II controlled substance. The
trial court sentenced him to a total of forty years’ incarceration with thirty-two years suspended.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. On appeal, Allen argues that the trial court abused its discretion by imposing a disproportionate
sentence that exceeded the discretionary sentencing guidelines.
BACKGROUND 1
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)).
On June 17, 2021, Allen pleaded guilty to distributing a Schedule I or II controlled
substance and conspiracy to distribute a Schedule I or II controlled substance. In conjunction
with his pleas, Allen signed an “Acknowledgment of Rights” form and submitted it to the trial
court. By signing the form, Allen confirmed that he was “aware of the nature of the charges
against” him and “the range of possible punishment for each charge.” He understood that by
pleading guilty he was waiving several rights, including the rights to testify at trial, confront the
witnesses against him, and appeal certain decisions of the trial court. Allen confirmed that he
had been “advised of each of these rights in open Court” and “understood” them. The trial court
accepted Allen’s pleas, continued the matter for sentencing, and ordered a presentence
investigation report.
1 The record on appeal does not contain timely-filed transcripts for the plea or the sentencing hearings. See Rule 5A:8(a). Although the transcripts are not “necessary to permit resolution” of Allen’s assignment of error, we confine our review to the record manuscript and the exhibits before the trial court. See Rule 5A:8(b)(4)(ii); Jacks v. Commonwealth, 74 Va. App. 783, 795 (2022) (en banc) (noting that issues are waived under Rule 5A:8 only when a transcript or written statement of facts in lieu of transcript is “necessary to permit resolution of appellate issues”). -2- Allen filed a sentencing memorandum with the trial court. Allen argued that the trial
court should sentence him “at or below” the “low range” of the adjusted discretionary sentencing
guidelines. 2 He contended that he had “shown remorse” and accepted responsibility by pleading
guilty. He asserted that his wife’s death contributed to his drug abuse and asked the trial court to
impose drug treatment and counseling as a condition of probation.
At the sentencing hearing, Allen introduced letters from his sister, aunt, and mother. The
letters described Allen as depressed and connected his drug use to the death of his wife. Allen’s
sister wrote that his incarceration for the present charges had removed him from negative
influences and given him a “fresh start.” In addition, his mother expressed hope because Allen
had been receiving “help” for his addiction while incarcerated. By final order entered October
26, 2021, the trial court sentenced Allen to twenty years’ incarceration with sixteen years
suspended for each conviction. Allen appeals.
ANALYSIS
Allen argues that the trial court abused its discretion by imposing a “disproportionate”
sentence that exceeded the discretionary sentencing guidelines. He maintains that the court
should have imposed less active incarceration because he “accepted responsibility for his crimes”
and was addressing his “drug addiction,” which had “spiraled out of control” after his wife’s
death.
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, 654
(2011). We noted in Cole that the Supreme Court of the United States “has never found a
2 The discretionary sentencing guidelines recommended between three years and two months’ incarceration and five years and two months’ incarceration, with a midpoint of four years and three months; the adjusted guideline range was from one year, seven months, and two days to five years and two months. -3- 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 curiam)). Cf. Vasquez v. Commonwealth, 291 Va. 232,
243 (2016) (rejecting Eighth Amendment challenge to 133-year active sentence because the
sentence was imposed for “eighteen separate crimes”). “It lies within the province of the
legislature to define and classify crimes and to determine the punishments for those crimes.”
DePriest v. Commonwealth, 33 Va. App. 754, 764 (2000).
“The sentencing guidelines are advisory only and do not require trial courts to impose
specific sentences.” Runyon v. Commonwealth, 29 Va. App. 573, 577-78 (1999). Accordingly, a
judge’s failure to follow the sentencing guidelines is “not . . . reviewable on appeal or the basis
of any other post-conviction relief.” Code § 19.2-298.01(F). “We review the trial court’s
sentence for abuse of discretion.” Scott v. Commonwealth, 58 Va. App. 35, 46 (2011).
It is well-established that “when 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)). “[O]nce it is determined that a sentence is
within the limitations set forth in the statute under which it is imposed, appellate review is at an
end.” Thomason v. Commonwealth, 69 Va. App. 89, 99 (2018) (quoting Minh Duy Du, 292 Va.
at 565). Here, appellant’s sentence was within the range set by the legislature. See Code
§§ 18.2-248 and 18.2-256.
It was within the trial court’s purview to weigh the mitigating evidence Allen presented.
Keselica v. Commonwealth, 34 Va. App. 31, 36 (2000). “Criminal sentencing decisions are
among the most difficult judgment calls trial judges face.” Minh Duy Du, 292 Va. at 563.
“Because this task is so difficult, it must rest heavily on judges closest to the facts of the case—
-4- 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. Balanced against
Allen’s mitigating evidence, however, were the aggravating circumstances of Allen’s present
offenses. In explaining its upward departure from the guidelines’ recommendation, the trial
court noted that Allen “was a major supplier of cocaine to many individual sellers. [Allen] was
living on his cocaine business as he hadn’t had a regular job in many years and he had tens of
thousands of dollars in cash from his sales.” After considering the evidence, the trial court
imposed the sentence it deemed appropriate. That sentence was “within the statutory range, and
our task is complete.” Thomason, 69 Va. App. at 99.
CONCLUSION
Accordingly, we affirm the trial court’s judgment and grant the motion for leave to
withdraw. See Anders, 386 U.S. at 744. This Court’s records shall reflect that Brad O’Neal
Allen is now proceeding without the assistance of counsel in this matter and is representing
himself on any further proceedings or appeal.
Affirmed.
-5-