COURT OF APPEALS OF VIRGINIA
Present: Judges Huff, O’Brien and Russell UNPUBLISHED
LEMARE RHAE SHAUN TYNES MEMORANDUM OPINION** v. Record No. 1414-21-1 PER CURIAM JULY 12, 2022 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Timothy S. Wright, Judge
(Kelsey Bulger, Senior Assistant Public Defender, Indigent Defense Commission, on brief), for appellant.
(Jason S. Miyares, Attorney General; David A. Mick, Assistant Attorney General; Sharon M. Carr, Assistant Attorney General, on brief), for appellee.
Under the terms of a written plea agreement, Lemare Rhae Shaun Tynes pled guilty to
assault of a law enforcement officer and fleeing from a law enforcement officer. The trial court
convicted appellant upon his pleas and sentenced him to two years and six months’ incarceration
with six months suspended. On appeal, appellant argues that the trial court abused its sentencing
discretion. 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). Accordingly, for the reasons stated below, we affirm the judgment of the trial
court.
Justice Russell prepared and the Court adopted the opinion in this case prior to his investiture as a Justice of the Supreme Court of Virginia. ** Pursuant to Code § 17.1-413, this opinion is not designated for publication. BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party at trial.” Poole v.
Commonwealth, 73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469,
472 (2018)). Accordingly, we discard any of appellant’s conflicting evidence, and regard as true
all credible evidence favorable to the Commonwealth and all inferences that may reasonably be
drawn from that evidence. Gerald, 295 Va. at 473.
Before accepting appellant’s guilty pleas, the trial court conducted a thorough colloquy
with him to ensure the pleas were entered freely and voluntarily. Appellant confirmed that he
had discussed the charges with his attorney and was pleading guilty because he was, “in fact,
guilty.” Appellant acknowledged that the trial court was not bound by the discretionary
sentencing guidelines and could sentence him to a maximum of five years and twelve months’
incarceration. Appellant confirmed that the written plea agreement, which did not contain an
agreed sentence, represented his entire agreement with the Commonwealth and asked the trial
court to accept it.
Upon finding that appellant had entered his guilty pleas freely and voluntarily and with
an understanding of their consequences, the trial court accepted the plea agreement. A written
joint stipulation of facts revealed that in April 2020, Chesapeake Police Officer Velez received a
report of an assault occurring on Leonard Avenue. During Officer Velez’s investigation,
appellant admitted to her that he had pulled the victim’s hair and “head-butt[ed]” her. When
Officer Velez arrested appellant for that assault and tried to place him in the back of her patrol
vehicle, he resisted and tried to “head-butt” another officer. Eventually, several officers pushed
appellant into the vehicle, and he was transported to the jail.
-2- When appellant stopped verbally responding to the officers at the jail, they took him to a
hospital for a “medical clearance.” At the hospital, appellant spit on Officer Velez’s face and
stated that he “hopes she gets the corona.” While returning to the jail, appellant “manipulated
the handcuffs to the front of his body,” “began spitting and smearing blood over the patrol
vehicle,” and stated that he wanted Officer Velez to “catch[] the corona virus.”
Appellant signed the stipulation of facts and agreed that it accurately summarized the
Commonwealth’s evidence. Based on appellant’s pleas and the stipulated evidence, the trial
court convicted him of assault and battery of a law enforcement officer and fleeing from a law
enforcement officer and continued the matter for sentencing.1
At the sentencing hearing, appellant testified that while in the hospital and as Officer
Velez was touching his chest, he coughed, accidentally spitting on her. He relayed that he had
four children and worked at an auto body repair shop and that he intended to return to work after
his release from incarceration “to help [his] family.” Appellant’s manager from work wrote a
letter to the trial court, reporting that appellant had been working for him for several years and
was a “great asset.” The manager characterized appellant as hardworking, trustworthy, and
“dedicated to his job.” Appellant further claimed that he had done a lot of “good” for his
community, including providing meals for the homeless and encouraging “gang members” to
“get jobs.”
The Commonwealth asked the trial court to sentence appellant between the midpoint and
the high end of the discretionary sentencing guidelines range.2 Noting appellant’s lengthy
1 Consistent with the plea agreement, the trial court granted the Commonwealth’s motion to nolle prosequi a charge of assault and battery of a household member, third or subsequent offense. 2 The sentencing guidelines recommended between one year and one month of incarceration and three years and five months of incarceration, with a midpoint of two years and three months. -3- criminal record, which included numerous assault and battery convictions against family
members and law enforcement officers, the Commonwealth argued that he was a “violent person
who has issues with authority figures.” The Commonwealth also argued that the joint stipulation
of facts contradicted much of appellant’s sentencing testimony.
Appellant countered that his last conviction for assaulting a law enforcement officer
occurred twelve years before the present offenses and that the letter from his employer
demonstrated he was a “wonderful worker” and “not a bad guy.” In allocution, appellant
apologized to the police officers but reiterated that he did not intend to spit on Officer Velez. He
said that “three close family members” and a mentor recently had died after contracting
COVID-19. Appellant admitted he was “mad” and said he should not have “let [his] anger get
the best of [him].” Appellant asked the trial court to sentence him below the midpoint of the
sentencing guidelines.
The trial court told appellant it was never “too late” to apologize to the officer and,
emphasizing appellant’s positive employment, regretted that appellant had to be sentenced.
Nevertheless, the trial court found that appellant’s actions necessitated consequences, and it
sentenced appellant to a total of two years of active incarceration, which was “below the
midpoint of the guidelines.”
ANALYSIS
Appellant does not argue that his sentences exceeded the applicable statutory maximum
for either of his convictions. Instead, he asserts that the trial court “failed to consider the
mitigating circumstances” and erred by sentencing him “to more active incarceration than the law
required.”3
3 The Commonwealth contends that these arguments are defaulted pursuant to Rule 5A:18 because appellant did not make these specific arguments in the trial court.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Huff, O’Brien and Russell UNPUBLISHED
LEMARE RHAE SHAUN TYNES MEMORANDUM OPINION** v. Record No. 1414-21-1 PER CURIAM JULY 12, 2022 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Timothy S. Wright, Judge
(Kelsey Bulger, Senior Assistant Public Defender, Indigent Defense Commission, on brief), for appellant.
(Jason S. Miyares, Attorney General; David A. Mick, Assistant Attorney General; Sharon M. Carr, Assistant Attorney General, on brief), for appellee.
Under the terms of a written plea agreement, Lemare Rhae Shaun Tynes pled guilty to
assault of a law enforcement officer and fleeing from a law enforcement officer. The trial court
convicted appellant upon his pleas and sentenced him to two years and six months’ incarceration
with six months suspended. On appeal, appellant argues that the trial court abused its sentencing
discretion. 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). Accordingly, for the reasons stated below, we affirm the judgment of the trial
court.
Justice Russell prepared and the Court adopted the opinion in this case prior to his investiture as a Justice of the Supreme Court of Virginia. ** Pursuant to Code § 17.1-413, this opinion is not designated for publication. BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party at trial.” Poole v.
Commonwealth, 73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469,
472 (2018)). Accordingly, we discard any of appellant’s conflicting evidence, and regard as true
all credible evidence favorable to the Commonwealth and all inferences that may reasonably be
drawn from that evidence. Gerald, 295 Va. at 473.
Before accepting appellant’s guilty pleas, the trial court conducted a thorough colloquy
with him to ensure the pleas were entered freely and voluntarily. Appellant confirmed that he
had discussed the charges with his attorney and was pleading guilty because he was, “in fact,
guilty.” Appellant acknowledged that the trial court was not bound by the discretionary
sentencing guidelines and could sentence him to a maximum of five years and twelve months’
incarceration. Appellant confirmed that the written plea agreement, which did not contain an
agreed sentence, represented his entire agreement with the Commonwealth and asked the trial
court to accept it.
Upon finding that appellant had entered his guilty pleas freely and voluntarily and with
an understanding of their consequences, the trial court accepted the plea agreement. A written
joint stipulation of facts revealed that in April 2020, Chesapeake Police Officer Velez received a
report of an assault occurring on Leonard Avenue. During Officer Velez’s investigation,
appellant admitted to her that he had pulled the victim’s hair and “head-butt[ed]” her. When
Officer Velez arrested appellant for that assault and tried to place him in the back of her patrol
vehicle, he resisted and tried to “head-butt” another officer. Eventually, several officers pushed
appellant into the vehicle, and he was transported to the jail.
-2- When appellant stopped verbally responding to the officers at the jail, they took him to a
hospital for a “medical clearance.” At the hospital, appellant spit on Officer Velez’s face and
stated that he “hopes she gets the corona.” While returning to the jail, appellant “manipulated
the handcuffs to the front of his body,” “began spitting and smearing blood over the patrol
vehicle,” and stated that he wanted Officer Velez to “catch[] the corona virus.”
Appellant signed the stipulation of facts and agreed that it accurately summarized the
Commonwealth’s evidence. Based on appellant’s pleas and the stipulated evidence, the trial
court convicted him of assault and battery of a law enforcement officer and fleeing from a law
enforcement officer and continued the matter for sentencing.1
At the sentencing hearing, appellant testified that while in the hospital and as Officer
Velez was touching his chest, he coughed, accidentally spitting on her. He relayed that he had
four children and worked at an auto body repair shop and that he intended to return to work after
his release from incarceration “to help [his] family.” Appellant’s manager from work wrote a
letter to the trial court, reporting that appellant had been working for him for several years and
was a “great asset.” The manager characterized appellant as hardworking, trustworthy, and
“dedicated to his job.” Appellant further claimed that he had done a lot of “good” for his
community, including providing meals for the homeless and encouraging “gang members” to
“get jobs.”
The Commonwealth asked the trial court to sentence appellant between the midpoint and
the high end of the discretionary sentencing guidelines range.2 Noting appellant’s lengthy
1 Consistent with the plea agreement, the trial court granted the Commonwealth’s motion to nolle prosequi a charge of assault and battery of a household member, third or subsequent offense. 2 The sentencing guidelines recommended between one year and one month of incarceration and three years and five months of incarceration, with a midpoint of two years and three months. -3- criminal record, which included numerous assault and battery convictions against family
members and law enforcement officers, the Commonwealth argued that he was a “violent person
who has issues with authority figures.” The Commonwealth also argued that the joint stipulation
of facts contradicted much of appellant’s sentencing testimony.
Appellant countered that his last conviction for assaulting a law enforcement officer
occurred twelve years before the present offenses and that the letter from his employer
demonstrated he was a “wonderful worker” and “not a bad guy.” In allocution, appellant
apologized to the police officers but reiterated that he did not intend to spit on Officer Velez. He
said that “three close family members” and a mentor recently had died after contracting
COVID-19. Appellant admitted he was “mad” and said he should not have “let [his] anger get
the best of [him].” Appellant asked the trial court to sentence him below the midpoint of the
sentencing guidelines.
The trial court told appellant it was never “too late” to apologize to the officer and,
emphasizing appellant’s positive employment, regretted that appellant had to be sentenced.
Nevertheless, the trial court found that appellant’s actions necessitated consequences, and it
sentenced appellant to a total of two years of active incarceration, which was “below the
midpoint of the guidelines.”
ANALYSIS
Appellant does not argue that his sentences exceeded the applicable statutory maximum
for either of his convictions. Instead, he asserts that the trial court “failed to consider the
mitigating circumstances” and erred by sentencing him “to more active incarceration than the law
required.”3
3 The Commonwealth contends that these arguments are defaulted pursuant to Rule 5A:18 because appellant did not make these specific arguments in the trial court. We previously have recognized that our charge to decide cases on “the best and narrowest ground available” -4- “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.” Du v. Commonwealth, 292 Va. 555, 564 (2016) (quoting Alston v.
Commonwealth, 274 Va. 759, 771-72 (2007)). In addition, “[t]he 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). “[T]he recommended sentencing ranges
contained in these discretionary guidelines . . . are mere tools to be used by the judge in fixing an
appropriate sentence within the limitations established by the statute governing punishment for
the particular crime.” Luttrell v. Commonwealth, 42 Va. App. 461, 465 (2004). Accordingly, on
appeal we may consider only whether the sentence fell outside the permissible statutory range.
Smith v. Commonwealth, 26 Va. App. 620, 626 (1998); Valentine v. Commonwealth, 18
Va. App. 334, 339 (1994). Here, appellant’s sentence is within the sentencing range set by the
legislature. See Code §§ 18.2-57(C) and 18.2-460(E).
“Criminal sentencing decisions are among the most difficult judgment calls trial judges
face.” Du, 292 Va. at 563. “Because this task is so difficult, it must rest heavily on the 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.
It is within the trial court’s purview to weigh any mitigating evidence appellant presented.
Keselica v. Commonwealth, 34 Va. App. 31, 36 (2000).
may augur in favor of addressing the merits of an appeal as opposed to a procedural default argument. Abdo v. Commonwealth, 64 Va. App. 468, 473 n.1 (2015) (internal quotation marks and citation omitted). We conclude this is such a case. Accordingly, we assume, but do not decide, that appellant’s arguments are sufficiently preserved to permit our review. -5- Appellant concedes that the trial court heard the evidence he offered in mitigation but
asserts that the trial court did not consider that evidence. This assertion conflates consideration
of evidence with giving that evidence sufficient weight to merit a different outcome. The record
demonstrates that the trial court considered the evidence appellant offered: it stated that it
listened to appellant’s testimony and read the letter from his employer. The trial court explained,
“Mr. Tynes, I’ve listened to the Commonwealth argue. I’ve listened to your attorney argue on
your behalf. I have looked at the file.” Having done so, the trial court imposed the sentence that
it deemed appropriate based on all of the evidence. That sentence was “within the statutory
range, and our task is complete.” Thomason v. Commonwealth, 69 Va. App. 89, 99 (2018).
CONCLUSION
For the foregoing reasons, the trial court’s judgment is affirmed.
Affirmed.
-6-