COURT OF APPEALS OF VIRGINIA
Present: Judges Athey, Fulton and Causey UNPUBLISHED
KEVIN LAMONT WALKER MEMORANDUM OPINION* v. Record No. 0030-23-1 PER CURIAM OCTOBER 24, 2023 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF YORK COUNTY Richard H. Rizk, Judge
(Brian W. Decker; Decker Law, PLLC, on brief), for appellant.
(Jason S. Miyares, Attorney General; Lauren C. Campbell, Assistant Attorney General, on brief), for appellee.
Under a written plea agreement, the trial court convicted Kevin Lamont Walker of
unlawfully entering property, assault and battery, preventing a 911 call, trespassing, and violating a
protective order. The court sentenced Walker to a total of 60 months in jail with 52 months
suspended. On appeal, Walker argues that the trial court erred by denying his motion for funds to
hire a private investigator. He also argues that the trial court abused its sentencing discretion by
imposing eight months in jail. 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). We affirm.
* This opinion is not designated for publication. See Code § 17.1-413(A). BACKGROUND1
Walker and Amanda Selby were “in an on again, off again relationship.” On July 8,
2022, they “got into an argument,” and Selby told Walker that he was not welcome at her home.
Later that evening, after Selby had fallen asleep, she awoke to find Walker standing in her
bedroom with the lock on her door broken. Selby tried to call 911, but Walker took her phone
and threw it. Selby called out to her 13-year-old son, who called the police. Selby obtained a
protective order against Walker, which was served on Walker the morning of July 12, 2022.
Within hours of being served with the protective order, Walker repeatedly called Selby’s phone
and sent her approximately 16 text messages.
Before trial, Walker filed a motion for funds to hire a private investigator. He asserted that
he resided at the address where the offenses allegedly occurred and wanted a private investigator
who could interview witnesses. After a hearing, the trial court denied Walker’s motion, finding that
he failed to demonstrate the required “need.”
In November 2022, Walker pleaded no contest under a written plea agreement to five
misdemeanor charges: unlawfully entering property, assault and battery, preventing a 911 call,
trespassing, and violating a protective order.2 Before accepting Walker’s pleas, the trial court
conducted a thorough colloquy to ensure they were entered freely and voluntarily. Walker
confirmed that he had discussed the charges, their elements, and possible defenses with his
1 “[W]e recite the evidence below ‘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)). This standard “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)). 2 In exchange for his pleas, the Commonwealth amended burglary and abduction charges to unlawful entry and assault and battery, respectively. The Commonwealth also nolle prossed two trespassing charges. -2- attorneys.3 After that discussion, he decided to plead no contest to the five misdemeanor charges.
Walker understood that by pleading no contest he waived several rights, including the right to
appeal certain rulings. He further understood that the plea agreement did not contain an agreed
sentence and the trial court could impose up to 60 months in jail.
The trial court accepted Walker’s pleas, and the matter proceeded to sentencing. Walker’s
criminal history consisted of three prior drug convictions, including a federal conviction for
conspiracy to distribute cocaine, and four federal probation revocations. The Commonwealth asked
the trial court to impose a total of 15 months in jail, 3 months for each offense. It argued that
Walker did not “respect boundaries” despite numerous encounters with the criminal justice system.
In response, Walker argued that the tumultuous nature of his relationship with Selby caused
him to text her despite the protective order in a misguided attempt to reconcile. He emphasized that
he had not contacted her in the 15 months before he entered the nolo contendere pleas and that the
underlying offenses precipitated the “final breakup.” In allocution, Walker stated that the “bad
relationship” with Selby had caused him to “ma[k]e bad decisions.” He no longer communicated
with Selby and wanted only to work and provide for his daughter.
The trial court sentenced Walker to a total of 60 months in jail with 52 months suspended.
The trial court emphasized that Walker had entered Selby’s house despite her instruction that he was
not welcome and had contacted her in violation of the protective order forbidding him from doing
so. The court ordered Walker to have “no contact whatsoever” with Selby.
On appeal, Walker argues that the trial court abused its discretion by denying his motion for
funds to hire a private investigator. He also argues that the trial court abused its sentencing
discretion by “failing to give adequate weight to the mitigating circumstances.” He asserts that he
3 Gordon Klugh, Esquire, and Brian Decker, Esquire, represented Walker at the November 2022 hearing; Brian Decker continues his representation of Walker in this case. -3- “accepted full responsibility” by pleading no contest, saving the Commonwealth the expense, time,
and effort of a trial. He also argues that he “expressed appropriate remorse” by acknowledging that
he made “bad decisions.” Walker concludes that the trial court’s resort to a “non-constructive” term
of imprisonment was “unduly harsh,” “ignored the factors warranting mercy,” and “did not ‘fit the
offender.’”
ANALYSIS
I. Walker waived his claim concerning a private investigator.
“[W]hen an accused enters a voluntary and intelligent plea of guilty to an offense, he
waives all defenses except those jurisdictional.” Clauson v. Commonwealth, 29 Va. App. 282,
294 (1999) (quoting Savino v. Commonwealth, 239 Va. 534, 538 (1990)). “[T]he same is true
when an accused enters a plea of nolo contendere.” Id. Such pleas “represent[] a break in the
chain of events which has preceded it in the criminal process.” Id.; see also Tollett v.
Henderson, 411 U.S. 258, 267 (1973). Accordingly, it “is a ‘waiver’ of all non-jurisdictional
defects that occurred before entry of the plea.” Trevathan v. Commonwealth, 297 Va. 697, 697
(2019) (quoting Miles v. Sheriff of the Va. Beach City Jail, 266 Va. 110, 113 (2003)). Such a
waiver even applies to “claims relating to the deprivation of constitutional rights that occurred
prior to the entry of the guilty plea.” Beaver v. Commonwealth, 232 Va. 521, 526-27 (1987)
(quoting Tollett, 411 U.S. at 267). Moreover, this waiver is also a waiver of appeal of any
non-jurisdictional defects after entry of a no contest plea. Id. at 527 (defendant appealing death
sentence “may not complain of any non-jurisdictional defects that occurred prior to his guilty
plea”).
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COURT OF APPEALS OF VIRGINIA
Present: Judges Athey, Fulton and Causey UNPUBLISHED
KEVIN LAMONT WALKER MEMORANDUM OPINION* v. Record No. 0030-23-1 PER CURIAM OCTOBER 24, 2023 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF YORK COUNTY Richard H. Rizk, Judge
(Brian W. Decker; Decker Law, PLLC, on brief), for appellant.
(Jason S. Miyares, Attorney General; Lauren C. Campbell, Assistant Attorney General, on brief), for appellee.
Under a written plea agreement, the trial court convicted Kevin Lamont Walker of
unlawfully entering property, assault and battery, preventing a 911 call, trespassing, and violating a
protective order. The court sentenced Walker to a total of 60 months in jail with 52 months
suspended. On appeal, Walker argues that the trial court erred by denying his motion for funds to
hire a private investigator. He also argues that the trial court abused its sentencing discretion by
imposing eight months in jail. 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). We affirm.
* This opinion is not designated for publication. See Code § 17.1-413(A). BACKGROUND1
Walker and Amanda Selby were “in an on again, off again relationship.” On July 8,
2022, they “got into an argument,” and Selby told Walker that he was not welcome at her home.
Later that evening, after Selby had fallen asleep, she awoke to find Walker standing in her
bedroom with the lock on her door broken. Selby tried to call 911, but Walker took her phone
and threw it. Selby called out to her 13-year-old son, who called the police. Selby obtained a
protective order against Walker, which was served on Walker the morning of July 12, 2022.
Within hours of being served with the protective order, Walker repeatedly called Selby’s phone
and sent her approximately 16 text messages.
Before trial, Walker filed a motion for funds to hire a private investigator. He asserted that
he resided at the address where the offenses allegedly occurred and wanted a private investigator
who could interview witnesses. After a hearing, the trial court denied Walker’s motion, finding that
he failed to demonstrate the required “need.”
In November 2022, Walker pleaded no contest under a written plea agreement to five
misdemeanor charges: unlawfully entering property, assault and battery, preventing a 911 call,
trespassing, and violating a protective order.2 Before accepting Walker’s pleas, the trial court
conducted a thorough colloquy to ensure they were entered freely and voluntarily. Walker
confirmed that he had discussed the charges, their elements, and possible defenses with his
1 “[W]e recite the evidence below ‘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)). This standard “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)). 2 In exchange for his pleas, the Commonwealth amended burglary and abduction charges to unlawful entry and assault and battery, respectively. The Commonwealth also nolle prossed two trespassing charges. -2- attorneys.3 After that discussion, he decided to plead no contest to the five misdemeanor charges.
Walker understood that by pleading no contest he waived several rights, including the right to
appeal certain rulings. He further understood that the plea agreement did not contain an agreed
sentence and the trial court could impose up to 60 months in jail.
The trial court accepted Walker’s pleas, and the matter proceeded to sentencing. Walker’s
criminal history consisted of three prior drug convictions, including a federal conviction for
conspiracy to distribute cocaine, and four federal probation revocations. The Commonwealth asked
the trial court to impose a total of 15 months in jail, 3 months for each offense. It argued that
Walker did not “respect boundaries” despite numerous encounters with the criminal justice system.
In response, Walker argued that the tumultuous nature of his relationship with Selby caused
him to text her despite the protective order in a misguided attempt to reconcile. He emphasized that
he had not contacted her in the 15 months before he entered the nolo contendere pleas and that the
underlying offenses precipitated the “final breakup.” In allocution, Walker stated that the “bad
relationship” with Selby had caused him to “ma[k]e bad decisions.” He no longer communicated
with Selby and wanted only to work and provide for his daughter.
The trial court sentenced Walker to a total of 60 months in jail with 52 months suspended.
The trial court emphasized that Walker had entered Selby’s house despite her instruction that he was
not welcome and had contacted her in violation of the protective order forbidding him from doing
so. The court ordered Walker to have “no contact whatsoever” with Selby.
On appeal, Walker argues that the trial court abused its discretion by denying his motion for
funds to hire a private investigator. He also argues that the trial court abused its sentencing
discretion by “failing to give adequate weight to the mitigating circumstances.” He asserts that he
3 Gordon Klugh, Esquire, and Brian Decker, Esquire, represented Walker at the November 2022 hearing; Brian Decker continues his representation of Walker in this case. -3- “accepted full responsibility” by pleading no contest, saving the Commonwealth the expense, time,
and effort of a trial. He also argues that he “expressed appropriate remorse” by acknowledging that
he made “bad decisions.” Walker concludes that the trial court’s resort to a “non-constructive” term
of imprisonment was “unduly harsh,” “ignored the factors warranting mercy,” and “did not ‘fit the
offender.’”
ANALYSIS
I. Walker waived his claim concerning a private investigator.
“[W]hen an accused enters a voluntary and intelligent plea of guilty to an offense, he
waives all defenses except those jurisdictional.” Clauson v. Commonwealth, 29 Va. App. 282,
294 (1999) (quoting Savino v. Commonwealth, 239 Va. 534, 538 (1990)). “[T]he same is true
when an accused enters a plea of nolo contendere.” Id. Such pleas “represent[] a break in the
chain of events which has preceded it in the criminal process.” Id.; see also Tollett v.
Henderson, 411 U.S. 258, 267 (1973). Accordingly, it “is a ‘waiver’ of all non-jurisdictional
defects that occurred before entry of the plea.” Trevathan v. Commonwealth, 297 Va. 697, 697
(2019) (quoting Miles v. Sheriff of the Va. Beach City Jail, 266 Va. 110, 113 (2003)). Such a
waiver even applies to “claims relating to the deprivation of constitutional rights that occurred
prior to the entry of the guilty plea.” Beaver v. Commonwealth, 232 Va. 521, 526-27 (1987)
(quoting Tollett, 411 U.S. at 267). Moreover, this waiver is also a waiver of appeal of any
non-jurisdictional defects after entry of a no contest plea. Id. at 527 (defendant appealing death
sentence “may not complain of any non-jurisdictional defects that occurred prior to his guilty
plea”).
Walker entered an unconditional no contest plea to the five misdemeanor charges after
the trial court denied his motion for funds to hire a private investigator, and his argument on
-4- appeal does not challenge the trial court’s jurisdiction. Accordingly, the argument is waived for
appeal.4
II. Sentencing
“We 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, 564-65 (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, Walker’s sentences were within the sentencing ranges set by the legislature.
See Code §§ 18.2-11, 18.2-57, 18.2-60.4, 18.2-119, 18.2-121(B), 18.2-164(B).
Moreover, it was within the trial court’s purview to weigh the mitigating circumstances
of the case, including Walker’s decision to plead no contest and admit that he made bad
decisions. Keselica v. Commonwealth, 34 Va. App. 31, 36 (2000). Balanced against those
circumstances was Walker’s extensive criminal history and the aggravating circumstances of this
case. Walker entered Selby’s house at night, while she was sleeping, and in defiance of her
explicit instructions that he was not welcome in her home. Walker also attempted to contact her
repeatedly almost immediately after police served him with the protective order. That behavior
permitted the trial court to conclude that Walker did not respect court orders.
“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.
4 Appellant’s brief makes no reference to Rule 5A:18, nor do we find “good cause” to disturb the trial court’s ruling on his motion for funds to hire a private investigator. -5- Commonwealth, 13 Va. App. 580, 584 (1992). “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. After weighing the evidence in this case,
the trial court determined that a total of eight months in jail was 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.
CONCLUSION
For the foregoing reasons, the circuit court’s judgment is affirmed.
Affirmed.
-6-