Michael Henry Dibella v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: July 12, 2022
• Docket: 1191211
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Senior Judges Annunziata, Frank and Petty UNPUBLISHED

MICHAEL HENRY DIBELLA MEMORANDUM OPINION* v. Record No. 1191-21-1 PER CURIAM JULY 12, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY L. Wayne Farmer, Judge

(Paul A. Fritzinger, Deputy Public Defender, on brief), for appellant. Appellant submitting on brief.

(Jason S. Miyares, Attorney General; Jason D. Reed, Assistant Attorney General, on brief), for appellee.

Counsel for Michael Henry Dibella, appellant, 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 Dibella with sufficient time for him to raise any matter

that he chooses. On appeal, Dibella, through counsel, argues that the trial court abused its

discretion by revoking his previously suspended sentence. Dibella has not filed any pro se

supplemental pleadings. We have reviewed the parties’ pleadings, fully examined the proceedings,

and determined the case to be wholly without merit as set forth below. Thus, the panel

unanimously holds that oral argument is unnecessary. See Code § 17.1-403(ii)(a); Rule 5A:27(a).

BACKGROUND

“In revocation appeals, the trial court’s ‘findings of fact and judgment will not be reversed

unless there is a clear showing of abuse of discretion.’” Jacobs v. Commonwealth, 61 Va. App.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 529, 535 (2013) (quoting Davis v. Commonwealth, 12 Va. App. 81, 86 (1991)). “The evidence is

considered in the light most favorable to the Commonwealth, as the prevailing party below.” Id.

On December 29, 2016, Dibella pled guilty and was convicted of possession of a firearm by

a non-violent felon. The trial court sentenced him to five years, with four years and five months

suspended, in accordance with a written plea agreement. Dibella was released from incarceration in

2017. On April 12, 2021, Dibella’s probation officer filed a violation memorandum detailing

Dibella’s non-compliance with probation. The report stated that Dibella had been charged with

misdemeanor assault and battery of a family member and strangulation resulting in a wound/injury.

The strangulation charge was reduced to contributing to the delinquency of a minor. Dibella pled

guilty and was sentenced to twelve months, all suspended, one year of supervision with the

Community Corrections program, and ordered to pay a fine and court costs on each new conviction.

The trial court issued a rule to show cause why the suspended sentence should not be revoked on

April 22, 2021. When Dibella could not be found, the trial court issued a second rule to show cause

why the suspended sentence should not be revoked on May 27, 2021.

At the October 5, 2021 revocation hearing the trial court noted that it reviewed the April

2021 probation memorandum, that it had entered a show cause over probation’s recommendation

that no action be taken, and that it had reviewed Dibella’s sentencing guidelines. Dibella did not

dispute that he had received new convictions while on probation. Consequently, the trial court

found him in violation of his probation.

At the sentencing phase of the hearing, the Commonwealth asked the court to take judicial

notice of its own records. The Commonwealth noted that the probation violation involved Dibella’s

eleven-year-old daughter. In the underlying offense Dibella and his wife, Ashley Dibella, had a

dispute. In that incident, Dibella, a convicted felon, threw Ashley a loaded firearm and told her to

-2- shoot herself in the head, which she did. Ashley survived the incident, and Dibella was charged and

convicted of possession of a firearm by a non-violent felon.

Franklin Probation Officer Steven Baker testified that he briefly supervised Dibella when his

case was transferred after the probation violation in December 2020. Officer Baker stated that

Dibella was cooperative and compliant with probation during his month supervising him. He

recommended that no action be taken because Dibella had been paying his court costs and had

attended family counseling. On cross-examination, Officer Baker stated that his department was

unaware of the domestic strife and the numerous police calls from the residence when he

recommended that the court take no action for this probation violation.

Suffolk Probation Officer Gary Ellis testified that Dibella was transferred from Franklin

probation and parole to Suffolk in March 2021. Since then, Dibella has positively adjusted to

supervision and has been compliant. Dibella has had negative drug urine screens, complied with the

terms of his new misdemeanor convictions, and recently completed a parenting course. On

cross-examination Officer Ellis admitted that he was unaware of any family conflict other than the

incident that led to the new convictions.

Ashley testified that although she and Dibella have had problems, those issues were in the

past and “[t]oday [her current situation] is perfect.” The family has undergone counseling, and

Dibella has been diagnosed with bipolar disorder. Dibella is currently working as a DoorDash

driver to help support the family. On the date of Dibella’s probation violation, Ashley testified that

their daughter was “acting out” and Dibella attempted to parent her. Their daughter has “some

issues” and is currently in the process of being diagnosed. On cross-examination Ashley admitted

that both her children were in the home when she shot herself at Dibella’s direction. On re-direct,

Ashley clarified that her daughter has recanted her story about what Dibella had done to her on the

day of the probation violation.

-3- Dibella stated that he had almost completed his probation period before receiving the new

convictions. He took responsibility for his actions and pled guilty. He had participated in

counseling and completed a year of parenting classes. When repeatedly asked, on

cross-examination, how many times the police had been called to his residence in the last five years

he finally admitted that it was three to four times. He claimed, however, that police were called to

the residence because of Ashley’s brother and not because of him. He continued to dispute the facts

of his new convictions, and he maintained that his daughter lied and ultimately recanted her

accusations that he beat her.

The Commonwealth argued that Ashley has supported Dibella because there is a financial

incentive for the family if Dibella remains at liberty. The Commonwealth further argued that

Dibella had not benefited from counseling, noting that he has attended counseling since the

underlying offense and was in counseling when he assaulted his daughter. The Commonwealth

noted that the facts of both the underlying offense, and the new convictions, involved a domestic

conflict. The Commonwealth concluded by asking the court to revoke and impose the remainder of

Dibella’s suspended sentence.

Dibella argued that both of his probation officers testified he was compliant with the terms

and conditions of his probation, and both recommended that no action be taken. He admits that he

received new convictions while on probation but emphasized that he took responsibility for his

actions when he pleaded guilty. He is in therapy and counseling to address his problems and is

working towards stable employment. He asked the court to revoke and resuspend all his suspended

time or, in the alternative, allow him to serve only a short period of time. In allocution Dibella

disputed the facts of the underlying charge—that he threw a loaded gun at his wife and told her to

shoot herself in the head. He claimed that she took the gun and shot herself because she was

suicidal that day.

-4- After considering argument from counsel, the trial court made findings before announcing

Dibella’s sentence. The court noted that the facts of the underlying charge were not in dispute. At

the time of that charge, he was a convicted felon who possessed a firearm. He threw a loaded gun at

his wife and told her to shoot herself, which she did. Her survival had nothing to do with Dibella.

Despite this conduct, the court noted that Dibella was given a “gift” when he was sentenced to serve

only seven months and that as a result his conduct “really has to be perfect [but] your conduct hasn’t

been perfect at all.” The court noted that the probation officers were unable to provide insight into

Dibella’s house on a day-to-day basis or speak to the “great discord in the house.” The court

believed that Ashley normalized Dibella’s behavior and conduct, which the court found “very

concerning.” The court also recalled that it had accepted Dibella’s pleas for the new convictions

and the stipulation of facts that Dibella beat his child with a belt and a coat hanger. Although

Ashley and Dibella claimed that their daughter fabricated the incident, the court doubted that the

child’s visible injuries were feigned. The court revoked Dibella’s suspended sentence and

resuspended two years and five months, for an active sentence of two years’ incarceration. When

explaining its departure from the guidelines the trial court wrote that “[d]efendant received a very

lenient sentence originally. Continues violence against family member and new related convictions.

Danger to family.” This appeal follows.

ANALYSIS

Dibella contends that the trial court abused its discretion by upwardly departing from the

guidelines and imposing two years of active incarceration on his first probation violation. He argues

that the departure was arbitrary and disproportionate to the violation committed. The trial court not

only exceeded the recommended sentencing guidelines, he asserts, but also the recommendation of

probation and parole. Dibella argues that the trial court’s reasoning for its departure from the

recommendations is unsubstantiated by the facts because the underlying charge was not for violence

-5- against a family member. Additionally, Dibella disputes the assertions that he knew the gun was

loaded and intended his wife harm when he threw her the gun. Dibella further contends that the trial

court failed to address why it disregarded the probation officers’ recommendation of no action.

Finally, Dibella argues that the trial court abused its discretion when it believed the unsubstantiated

arguments by the Commonwealth that there was turmoil in the home instead of the live testimony of

Dibella and Ashley.

After suspending a sentence, a trial court “may revoke the suspension of sentence for any

cause the court deems sufficient that occurred at any time within the probation period, or within the

period of suspension fixed by the court.” Code § 19.2-306(A). Moreover, under the revocation

statute in effect when this revocation proceeding began, once the trial court found that Dibella had

violated the terms of the suspension, it was obligated to revoke the suspended sentence and it was in

“full force and effect.” Code § 19.2-306(C)(ii) (2020 Cum. Supp.).1 The trial court was

permitted—but not required—to resuspend all or part of the sentence. Id.; Alsberry v.

Commonwealth, 39 Va. App. 314, 320 (2002).

The record demonstrates, and Dibella acknowledged, that he had suffered new criminal

convictions during the suspension period; therefore, the trial court had sufficient cause to revoke his

suspended sentence. It was equally within the trial court’s purview to weigh any mitigating factors

Dibella presented, such as the testimony of Dibella and Ashley that their daughter had fabricated the

incident, that Dibella took responsibility for the incident and pled guilty, and that since the incident

1 Although Code § 19.2-306(C) was amended effective July 1, 2021, Dibella does not argue that the statutory amendment applied in his case and this Court recently held that it did not apply when, as here, the probation violations occurred and the revocation proceeding began before the effective date of the amendment. See Green v. Commonwealth, 75 Va. App. 69, ___ & n.4 (2022). Moreover, even under the new statutory framework, the trial court has discretion to impose the balance of a previously suspended sentence when a probationer commits a new offense during the suspension period. See 2021 Va. Acts Sp. Sess. I, ch. 538; Code § 19.2-306.1(B). -6- Dibella had been in therapy and family counseling. See Keselica v. Commonwealth, 34 Va. App.

31, 36 (2000).

“The statutes dealing with probation and suspension are remedial and intended to give the

trial court valuable tools to help rehabilitate an offender through the use of probation, suspension of

all or part of a sentence, and/or restitution payments.” Howell v. Commonwealth, 274 Va. 737, 740

(2007). While on probation, Dibella accumulated two convictions against his eleven-year-old

daughter. Dibella’s disregard of the terms of his suspended sentence supports a finding that he was

not amendable to rehabilitation. “When coupled with a suspended sentence, probation represents

‘an act of grace on the part of the Commonwealth to one who has been convicted and sentenced to a

term of confinement.’” Hunter v. Commonwealth, 56 Va. App. 582, 587 (2010) (quoting Price v.

Commonwealth, 51 Va. App. 443, 448 (2008)). Dibella failed to make productive use of the grace

that had been extended to him and continued to engage in criminal conduct during the suspension

period.

Further, the probation violation guidelines, like the standard sentencing guidelines, “are not

binding on the trial judge; rather, the guidelines are merely a ‘tool’ to assist the judge in fixing an

appropriate punishment.” Belcher v. Commonwealth, 17 Va. App. 44, 45 (1993). Code

§ 19.2-298.01(F) precludes appellate review of whether the trial court adhered to Code

§ 19.2-298.01(B). Specifically, Code § 19.2-298.01(F) states that “[t]he failure to follow any or all

of the provisions of [§ 19.2-298.01] in the prescribed manner shall not be reviewable on appeal or

the basis of any other post-conviction relief.” (emphasis added); see also, West v. Dir. of Dep’t of

Corr., 273 Va. 56, 65 (2007) (holding Virginia sentencing guidelines are discretionary); Fazili v.

Commonwealth, 71 Va. App. 239, 248-49 (2019) (holding Code § 19.2-298.01(F) prohibits

appellate review of a trial court’s failure to follow discretionary sentencing guidelines). In view of

this broad statutory exemption from appeal, we hold that examining whether the trial court’s written

-7- explanation in the sentencing revocation report satisfies Code § 19.2-298.01(B) provides no basis

for review on appeal.

Finally, to the extent that Dibella argues that his sentence was disproportionate, 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, 653-54 (2011). We noted in Cole

that the Supreme Court of the United States “has never found a 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”).

Accordingly, we hold that the sentence the trial court imposed represents a proper exercise

of its sentencing discretion. See Alsberry, 39 Va. App. at 321-22 (finding the court did not abuse its

discretion by imposing the defendant’s previously suspended sentence in its entirety “in light of the

grievous nature of [the defendant’s] offenses and his continuing criminal activity”).

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 Michael Henry

Dibella is now proceeding without the assistance of counsel in this matter and is representing

himself on any further proceedings or appeal.

Affirmed.

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