Humberto Ajanel-Sanic v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: September 27, 2022
• Docket: 0445224
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Huff and AtLee UNPUBLISHED

HUMBERTO AJANEL-SANIC MEMORANDUM OPINION* v. Record No. 0445-22-4 PER CURIAM SEPTEMBER 27, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Louise M. DiMatteo, Judge

(Mark S. Thrash, on brief), for appellant. Appellant submitting on brief.

(Jason S. Miyares, Attorney General; Lindsay M. Brooker, Assistant Attorney General, on brief), for appellee.

A jury convicted Humberto Ajanel-Sanic of aggravated sexual battery and forcible sodomy

of a child under the age of thirteen. On appeal, he argues that the trial court abused its discretion by

imposing a life sentence on the forcible sodomy conviction because his background, the

circumstances of the offense, the presentence investigation, and the discretionary sentencing

guidelines “dictated a lesser sentence.”1 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.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Ajanel-Sanic does not challenge his aggravated sexual battery conviction or sentence. Ajanel-Sanic was also charged with rape and object sexual penetration, but the jury did not reach verdicts on those charges. 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, 323-24 (2018)).

In 2016, L.V. lived with her parents, two of her siblings, and Ajanel-Sanic—her mother’s

cousin. When L.V. was six years old, Ajanel-Sanic began sexually abusing her. Ajanel-Sanic

kissed L.V. using his tongue at every opportunity and forced L.V. to touch his penis. He also

“touched” his penis to L.V.’s vagina “[a] lot of times,” causing her pain afterward. Ajanel-Sanic

also put his penis in L.V.’s mouth “[e]very time.” L.V. saw “[a] white thing” come from

Ajanel-Sanic’s penis “[a] lot of times” during the abuse. Afterwards, Ajanel-Sanic “wiped his

penis” with “a piece of paper.” The abuse usually occurred in the living room or Ajanel-Sanic’s

bedroom. If other family members were present, Ajanel-Sanic told them “to leave.”

When L.V. was ten years old, she told her mother, Amada Gonzalez, that Ajanel-Sanic

had “touched her vagina” and “rubbed his penis on her vagina.” When Gonzalez confronted

Ajanel-Sanic, he denied the allegations. Nevertheless, he moved away from the home.

Sometime later, Ajanel-Sanic called Gonzalez and asked her forgiveness.

After the family reported the abuse to police, L.V. was interviewed by a forensic

interviewer, Marcella Rustioni, with the Arlington Child Advocacy Center. Before the recorded

interview, Rustioni informed L.V. of the “importance” of being truthful. L.V. understood and

stated that when she was “alone” with Ajanel-Sanic, he “touch[ed]” her and did “things that he

wasn’t supposed to.” L.V. stated that he “kiss[ed]” her mouth “and his private part” touched

-2- hers “whenever he had the chance.” Once, Ajanel-Sanic’s “private part” touched hers while they

were in the attic and Gonzalez was in the kitchen. L.V. stated that the abuse continued until

Gonzalez “found out.”

In August 2020, Detective Echenique interviewed Ajanel-Sanic about L.V.’s allegations

at the police station. As an “interview tactic,” Detective Echenique falsely told Ajanel-Sanic that

police had found his DNA in L.V.’s vagina and on other parts of her body. Ajanel-Sanic then

stated that L.V. often came “to him wanting to do things with him” and “trying to touch him.”

He “eventually” began “touching [her] vagina” with his penis. He also put his penis in her

mouth “on numerous occasions.” Ajanel-Sanic stated that L.V. “reach[ed]” inside his pants and

“masturbate[d] him” “between two and four times.” He insisted that L.V. initiated the sexual

contact, asking him to “put it in” her, but he only inserted the “tip of his penis into [her] vagina”

to keep from hurting her. At the end of the interview, Ajanel-Sanic stated that he “felt bad” and

“cried practically every day.”

A grand jury indicted Ajanel-Sanic for aggravated sexual battery and forcible sodomy of

a child under the age of thirteen. At the jury trial, Ashleigh Daniel, a sexual assault nurse

examiner, testified for Ajanel-Sanic. During an examination of L.V. on August 8, 2020, Daniel

did not find anything abnormal in her physical or genital examination. L.V. had an

“estrogenized hymen” with a “notch,” which Daniel described as “normal” findings for L.V.’s

age and development. Daniel agreed that “an intact hymen is not an indicator of whether . . . a

patient suffered sexual intercourse” and that “women have actually given birth while their hymen

is still intact.”

The jury convicted Ajanel-Sanic of aggravated sexual battery and forcible sodomy of a

child under the age of thirteen. The court continued the case for sentencing and ordered a

presentence investigation report.

-3- In the presentence report, Ajanel-Sanic again insisted that L.V. initiated the sexual

contact and ignored his demands that she leave. He claimed that he “never wanted to touch her

because it was ‘wrong.’” Moreover, he claimed that he was “the biggest loser in the case”

because he “lost everything,” including his family.

Ajanel-Sanic also reported that, when he was five years old, his father had been murdered

in Guatemala. He grew up “in poverty” and without stable housing. His stepfather was a

“violent man who physically abused his mother.” Accordingly, he left his home when he was

eight years old, “lived on the street,” and moved to Mexico when he was nine.

The investigating probation officer recommended that the trial court impose a “lengthy

period of supervised probation,” require a substance abuse evaluation, and order a “sex offender

evaluation with completion of any related treatment.” She further recommended that

Ajanel-Sanic have no unsupervised contact with minors.

At the sentencing hearing, Gonzales testified that she had loved Ajanel-Sanic “like a

brother[,] but now he’s a despicable being.” Gonzales asserted that Ajanel-Sanic destroyed

L.V.’s life and did not know the “pain” he caused. In a victim impact statement, L.V.’s father

expressed his anguish and fury over the pain Ajanel-Sanic had inflicted on the entire family. He

asked the trial court to impose “the maximum sentence” available.

Ajanel-Sanic asked the trial court to impose a sentence within the discretionary

sentencing guidelines.2 He emphasized his lack of a criminal record and asserted that he had

“become anathema” in society. He also noted his remorse, as demonstrated by his statements to

2 The discretionary sentencing guidelines recommended between seven years and six months’ incarceration and twenty-four years and three months’ incarceration, with a midpoint of thirteen years and six months. The high end of the guidelines was adjusted up based on Ajanel-Sanic’s score on the “risk assessment.” -4- Detective Echenique. He acknowledged that the case involved “a great deal of pain” and

asserted that the guidelines considered that circumstance.

In response, the Commonwealth asked the trial court to impose a sentence significantly

above the high end of the discretionary sentencing guidelines and emphasized that the sexual

abused occurred “from the time [L.V.] was six years old to the time she was ten years old,”

whenever they were alone. Notwithstanding the single sodomy charge, the evidence established

that Ajanel-Sanic had engaged in an extended pattern of abuse. Moreover, Ajanel-Sanic took

“no responsibility” for his actions; instead, he “blame[d] the child explicitly.” The

Commonwealth concluded that this was “one of the most severe” cases of sexual abuse and that

the guidelines were not “near appropriate.”

In allocution, Ajanel-Sanic stated that he was “very sorry for everything that happened.”

He wanted to “go back to [the] past” to “avoid” everything. He lamented that he had left his

“daughter alone” and lost his family. Reiterating his apology, Ajanel-Sanic stated that he had

“no idea how all of this could have happened.”

The trial court found that Ajanel-Sanic had no remorse or insight into his offenses.

Rather, he was “basically saying that [L.V.] came to him and asked him to sexually assault her,

including kissing him and touching his own private areas.” It found that Ajanel-Sanic had

“preyed upon the kindnesses and trust of a family and abused that trust to gain access to a little

girl for his own personal gratification” when she was very young. Given Ajanel-Sanic’s lack of

remorse, the trial court found that there was no “assurance” that he would not prey on “other

children” after his release. Accordingly, it sentenced Ajanel-Sanic to life imprisonment.

Ajanel-Sanic appeals.

-5- ANALYSIS

Ajanel-Sanic argues that the trial court abused its sentencing discretion by imposing a life

sentence because his background, the circumstances of the offense, the presentence report, and

the sentencing guidelines “dictated a lesser sentence.” He contends that the trial court’s sentence

rested on the erroneous conclusion that there was no “assurance” that Ajanel-Sanic would not

abuse other children if released. He maintains that such a concern exists “in every case of a sex

offense” and the probation officer’s recommendations for post-release supervision adequately

addressed that concern. Moreover, Ajanel-Sanic explains his repeated claims that L.V. initiated

the sexual contact as the result of his “wholly uneducated . . . life on the streets of Guatemala and

Mexico.” He maintains that such a background is “not conducive to a mature, circumspect view

of the world.” We find no abuse of the trial court’s discretion.

At the threshold, we note that the sentencing guidelines did not dictate any sentence.

“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 shall “not be reviewable on appeal or the basis of any

other post-conviction relief.” Code § 19.2-298.01(F). Instead, “[w]e review the trial court’s

sentence for abuse of discretion.” Scott v. Commonwealth, 58 Va. App. 35, 46 (2011).

“[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)). “[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.

-6- Commonwealth, 69 Va. App. 89, 99 (2018) (quoting Minh Duy Du, 292 Va. at 565). Here,

Ajanel-Sanic’s sentence was within the range set by the legislature. Code § 18.2-67.1(B).3

It was within the trial court’s purview to weigh the mitigating evidence Ajanel-Sanic

presented, including his difficult childhood. 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—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.

The record demonstrates that the trial court considered Ajanel-Sanic’s childhood and

background as recounted in the presentence report. The court also considered the probation

officer’s recommendations for post-release supervision. Balanced against those circumstances,

however, was Ajanel-Sanic’s repeated and egregious sexual abuse of L.V. when she was so

young. Moreover, Ajanel-Sanic refused to accept responsibility for his offenses, instead

steadfastly insisting that L.V. had initiated the sexual contact. Given Ajanel-Sanic’s lack of

remorse and refusal to accept responsibility, the record fairly “supports the trial court’s”

conclusion that there was no “assurance” that Ajanel-Sanic would not reoffend. Id. at 566.

In explaining its departure from the sentencing guidelines, the trial court wrote:

“[Ajanel-Sanic] stated that the CHILD . . . was the instigator of these sexual assaults” and “the

events took place ‘any chance he got’ for 4 years.” After considering all the circumstances, the

3 Had the Commonwealth alleged in the forcible sodomy indictment that Ajanel-Sanic was eighteen years or older when he sodomized L.V.—which he was—the trial court would have been compelled to impose a mandatory life sentence. See Code § 18.2-67.1(B)(2) (providing that when a defendant commits forcible sodomy against a victim less than thirteen years old, and “it is alleged in the indictment that the offender was 18 years of age or older at the time of the offense, the punishment shall include a mandatory minimum term of confinement for life”). -7- trial court imposed the sentence that it deemed appropriate. That sentence “does not exceed [the

statutory] maximum,” and our task is complete. Id. at 564; see also Thomason, 69 Va. App. at

99 (“Appellant’s sentence was within the statutory range, and our task is complete.”).4

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed.

Affirmed.

4 To the extent Ajanel-Sanic argues that we should overrule Minh Duy Du, we must reject his argument. “‘[W]e are bound by decisions of the Supreme Court of Virginia and are without authority to overrule’ them.” Vay v. Commonwealth, 67 Va. App. 236, 258 n.6 (2017) (quoting Roane v. Roane, 12 Va. App. 989, 993 (1991)). “This principle applies not merely to the literal holding of the case, but also to its ratio decidendi—the essential rationale in the case that determines the judgment.” Hutton v. Commonwealth, 66 Va. App. 714, 724 n.5 (2016) (quoting Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 73-74 (2003)). -8-