Paul Bracy Powell v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: November 22, 2022
• Docket: 0376222
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Senior Judges Clements, Haley and Petty UNPUBLISHED

PAUL BRACY POWELL MEMORANDUM OPINION* v. Record No. 0376-22-2 PER CURIAM NOVEMBER 22, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF GOOCHLAND COUNTY Timothy K. Sanner, Judge

(Reed C. Amos; Amos & Amos, PLLC, on brief), for appellant. Appellant submitting on brief.

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

Under a plea agreement, Paul Bracy Powell pleaded guilty to two counts of grand larceny.

Powell’s counsel 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 Powell with sufficient time for him to raise any matter that he chooses. Powell filed a

supplemental, pro se, brief.

On appeal, Powell, through counsel, argues that the trial court erred in sentencing him

pursuant to the plea agreement and imposing $100,000 in restitution. Powell, pro se, appears to

argue that the trial court violated the plea agreement when it imposed the $100,000 in restitution and

that the Commonwealth inflicted fraud upon the trial court during his sentencing. After examining

the briefs and record in this case, the panel has determined that this appeal is wholly frivolous and

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 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 the judgment of the trial court.

BACKGROUND

On appeal, “we review the evidence in the ‘light most favorable’ to the Commonwealth.”

Clanton v. Commonwealth, 53 Va. App. 561, 564 (2009) (en banc) (quoting Commonwealth v.

Hudson, 265 Va. 505, 514 (2003)). That principle 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 that may be drawn therefrom.” Kelly v.

Commonwealth, 41 Va. App. 250, 254 (2003) (en banc) (quoting Watkins v. Commonwealth, 26

Va. App. 335, 348 (1998)).

The plea agreement capped Powell’s active incarceration at four years, made no mention of

restitution, and was “the total agreement between the parties.” Following a thorough plea colloquy,

the trial court accepted the agreement.

The Commonwealth proffered that in early 2020 Robert and Linda Bloch decided to sell

their home in Goochland with the help of real estate agent Amanda Hardesty. The Blochs bought a

home in Aiken, South Carolina and resided there while Hardesty attempted to sell their Goochland

home. To prepare the home for sale, Hardesty contracted Powell, with whom she was romantically

involved. Emails and text messages between Powell and Hardesty illustrated that they utilized the

Blochs’ home as their private bed and breakfast and often left the home in disarray.

In the summer of 2020 Hardesty’s relationship with Powell soured. On July 19, Hardesty

went to the Blochs’ residence to prepare for an open house. When she arrived, she noticed that

some items were missing, and other items were misplaced within the home. The next day Hardesty

reported the missing items to law enforcement and noted that the value of the missing property was

-2- estimated at $256,000. Hardesty provided law enforcement the names Sharron Redford, Christian

Redford, and Antwan James, also known as Smiley, as possible persons of interest.

The Blochs informed police officers that they were missing several paintings, a cherry red

Gibson ES335 guitar, valued at $3,000, a homemade base, an autographed black Gibson Les Paul

guitar, and a gun safe with a rifle and crossbow therein also valued at $3,000. The most significant

piece of missing property was an oil painting valued at $180,000.

After Powell was developed as a suspect, he stated that he had taken the cherry red Gibson

ES335 guitar. He claimed, however, that he did not intend to steal the guitar but that he liked it and

wished to carry it around with him. When Powell was arrested the guitar had been in his hotel

room, but the police did not confiscate it. The guitar has since disappeared.

The police also interviewed Christian Redford in connection to the thefts. He stated that he

received a text message early one morning from Powell with the directive to come to the Bloch

residence and pick him up. When Redford arrived, Powell, Antwan James, and an unidentified

woman exited the house. Powell held a guitar in his hand and three or four paintings. Redford

described the paintings as rough in texture and framed. James carried a bag containing unidentified

objects. They placed the paintings, guitar, and bag in Redford’s vehicle, and he drove Powell,

James, and the woman to a hotel. 1

Redford also stated that on a different date he and Powell drove Powell’s truck to the

Blochs’ residence late one evening and took a gun safe from the shed. Powell and Redford then

drove to Powell’s father’s house where Powell and Smiley unloaded the gun safe and attempted to

gain access. Ultimately, they accessed a rifle and crossbow from the safe.

1 Powell stated that the unidentified female was someone he met at the hotel, but that he did not know her name. -3- Sharron Redford stated that she had texted Marissa Doce about oil paintings that had

appeared at Powell’s home. In text messages to Sharron, Doce stated that she would ask Powell

where he obtained the paintings. Moments later Doce stated via text message to Sharron that

Powell affirmed “I stole them.” Doce then sent Sharron a picture of one of the paintings. Sharron

shared these text messages with law enforcement. The Blochs viewed the picture Doce sent

Sharron and confirmed it was one of their missing paintings and that it was valued at $4,000.

Powell stipulated to the Commonwealth’s evidence and added that his job was to clean,

make repairs, and stage the home for sale. Consequently, Powell removed items from the home and

brought in staging furniture. He asserted that Hardesty was the criminal mastermind and that he has

been “caught with the bag.” Nevertheless, utilizing the procedure approved in North Carolina v.

Alford, 400 U.S. 25 (1970), he pleaded guilty to the two grand larceny charges.

At the sentencing hearing, the trial court opined that given the amount of property stolen “it

probably would be difficult for complete restitution to be made, but it would strike the [c]ourt that

something ought to be paid.” The Commonwealth asserted that the stolen property was valued at

$245,000 and that the insurance company had reimbursed the Blochs $40,000. The Commonwealth

asked for $205,000 in restitution. When asked if the Commonwealth anticipated any other

prosecutions, the Commonwealth noted that “there is one other codefendant. He has not been

apprehended yet.” The court stated that “in the event that person is successfully prosecuted and

sentenced, we’ll make the restitution joint and several with Mr. Powell.”

Powell then entered text messages between himself and the Blochs into evidence. Powell

argued that these texts could be categorized as friendly communication and illustrated the Blochs

knew who he was despite their assertions they did not.

Before pronouncing its sentence, the trial court stated that Powell’s role in the criminal

enterprise was significant. The court noted that although the Blochs could likely bear the financial

-4- burden more than the average person, “there’s also some sentimental aspects of [the crime] too.”

The court recounted that a Les Paul guitar autographed by Les Paul was taken and that Les Paul

would not sign another guitar because of his death. The court recognized that Powell likely

would be unable to pay $205,000 in restitution, so limited the restitution obligation to $100,000.

The court then sentenced Powell to ten years on each count of grand larceny and suspended eight

years on each count for an active sentence of four years’ incarceration. Powell appeals.

ANALYSIS

I. Powell’s Arguments Through Counsel

Powell, through counsel, asserts that the trial court abused its discretion when it imposed

restitution because the plea agreement did not contain a specific reference to or provision for

restitution. Further, he asserts that the amount of restitution was not supported by a preponderance

of the evidence.

When imposing a sentence, the court “has a range of choice, and . . . its decision will not

be disturbed as long as it stays within that range and is not influenced by any mistake of law.”

Sauder v. Ferguson, 289 Va. 449, 459 (2015) (quoting Landrum v. Chippenham &

Johnston-Willis Hosps., Inc., 282 Va. 346, 352 (2011)). “Only when reasonable jurists could not

differ can we say an abuse of discretion has occurred.” Minh Duy Du v. Commonwealth, 292

Va. 555, 564 (2016) (quoting Grattan v. Commonwealth, 278 Va. 602, 620 (2009)).

“A trial court has ‘wide latitude’ to make sentencing decisions such as the ordering of

restitution, because ‘[t]he determination of sentencing lies within the sound discretion of the trial

court.’” Sigler v. Commonwealth, 61 Va. App. 674, 678 (2013) (alteration in original) (first

quoting Deal v. Commonwealth, 15 Va. App. 157, 160 (1992); and then quoting Martin v.

Commonwealth, 274 Va. 733, 735 (2007)). Code § 19.2-303 provides that, “[a]fter conviction,

. . . the court may . . . suspend the sentence in whole or part and in addition may place the

-5- defendant on probation under such conditions as the court shall determine.” When the

Commonwealth seeks restitution, it must prove “the ‘damages’ or loss incurred by an aggrieved

party as a result of the offense” by “a preponderance of the evidence.” McCullough v.

Commonwealth, 38 Va. App. 811, 816 (2002); Bazemore v. Commonwealth, 25 Va. App. 466,

468-69 (1997).

Here, the plea agreement did not address whether Powell would be required to pay

restitution. The plea agreement only capped Powell’s active incarceration at four years. The

trial court has wide latitude in fashioning a sentence including whether to impose restitution.

The trial court considered all the circumstances relevant to restitution and found that the

loss to the Blochs caused by Powell’s offenses, less the insurance reimbursement, was $205,000.

This finding is supported by a preponderance of evidence. The Commonwealth proffered, and

Powell stipulated, that while the Blochs were in South Carolina, Powell and Hardesty used the

Bloch residence as a party home. Over the course of several months Powell, without permission,

permanently deprived the Blochs of several paintings, at least two guitars, and a gun safe

containing a rifle and crossbow. One of the paintings was valued at $180,000. Another painting

was valued at $4,000. The cherry red guitar was valued at $3,000. The gun safe and the

contents therein were valued at $3,000.

At the sentencing hearing, the Commonwealth stated that the total value of the stolen

property was $245,000 and the insurance company had paid the Blochs $40,000. Consequently,

the Commonwealth requested $205,000 in restitution. The trial court opined that Powell was

unlikely to repay that total and imposed restitution in the amount of $100,000. This restitution

amount is reasonable given that Powell stole $245,000 worth of property.

Furthermore, the trial court was required to impose at least partial restitution because it

suspended part of Powell’s sentence for a property crime. Powell was sentenced to ten years,

-6- with eight years suspended on each of his two grand larceny convictions. Code § 19.2-305.1

states:

Notwithstanding any other provision of law, no person convicted of a crime in violation of any provision in Title 18.2, which resulted in property damage or loss, shall be placed on probation or have his sentence suspended unless such person shall make at least partial restitution for such property damage or loss.

(Emphasis added). Therefore, the trial court was required by statute to impose at least partial

restitution given its suspension of Powell’s sentence. Thus, we find that the trial court did not

abuse its discretion when it imposed $100,000 in restitution.

II. Powell’s Pro Se Arguments

A. Sentencing

Powell, pro se, appears to argue that the trial court violated the plea agreement when it

imposed restitution and sentenced him to four years’ active incarceration. Powell further

contends that the copy of the two-page written plea agreement in his possession is not the

agreement that he signed, which he contends was four pages in length and had different

“verb[i]age” and “numbers.”

1. Violating Plea Agreement

As articulated supra, the plea agreement did not contemplate restitution. Given the trial

court’s wide latitude under Code § 19.2-305.1, the trial court did not abuse its discretion when it

imposed restitution. Further, the record does not support Powell’s contention that he signed a

different plea agreement. The record shows that Powell signed the two-page plea agreement as

well as a four-page questionnaire concerning his guilty pleas.

2. Four Years’ Active Incarceration

To the extent that Powell argues that the trial court abused its discretion when it

sentenced him to four years’ active incarceration, we find that argument is without merit.

-7- “[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, 292 Va. at 564 (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).

It was within the trial court’s purview to weigh Powell’s mitigating evidence. 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.

Here, the stipulated facts established that over the course of several months, Powell, who

was a handy man for the Blochs’ realtor, raided the Blochs’ home of many valuable items. He

took several paintings, at least two guitars, and a gun safe with a rifle and crossbow therein. The

plea agreement contemplated that the maximum period of incarceration to be imposed would be

four years. In sentencing Powell to ten years, with eight years suspended on each of his grand

larceny convictions, the trial court remained within the range of reasonableness afforded to it at

sentencing. We will not disturb the trial court’s decision on appeal.

B. Fraud on the Court

Lastly, Powell, pro se, appears to argue that the Commonwealth committed fraud on the

trial court when it proffered that an autographed black Les Paul guitar had been stolen and when

it proffered that there was “one other codefendant” that “ha[d] not been apprehended yet.” He

stresses that no charging documents mentioned an autographed Les Paul guitar and that the first

-8- mention of such a guitar occurred at sentencing, and he further asserts that he has proof that the

autographed Les Paul guitar is in the victims’ possession. He observes that when explaining its

restitution order, the trial court only mentioned the autographed Les Paul guitar and no other

property.

He also contends that no charging documents had been issued at the time of the

prosecutor’s statements at sentencing and that the Commonwealth intentionally misled the court

into thinking restitution would be joint and severable. The Commonwealth, he argues, falsely

stated that it had moved to nolle prosequi another co-defendant’s charge when, in fact, that

co-defendant had “confessed to the crimes.” He asserts joint and severable restitution should

have been imposed with that co-defendant.

“The law does not presume fraud; to the contrary, the presumption is always in favor of

innocent conduct.” Ein v. Commonwealth, 246 Va. 396, 401 (1993); see Jenkins v. Trice, 152

Va. 411, 429-30 (1929). “Moreover, the burden is upon the party alleging fraud to prove it by

clear and convincing evidence.” Ein, 246 Va. at 401; see Winn v. Aleda Constr. Co., 227 Va.

304, 308 (1984).

First, a separate warrant alleging that Powell stole the autographed Les Paul guitar was

issued on the same day as the warrant alleging Powell stole the cherry red guitar. Further,

Powell agreed with the Commonwealth’s proffer that the autographed Les Paul guitar had been

stolen. Lastly, Powell failed to prove, beyond a mere assertion, that the Commonwealth

misrepresented to the trial court that the black autographed Les Paul guitar was stolen. Because

Powell failed to carry his burden, we hold that the Commonwealth did not perpetrate fraud on

the trial court.

At the sentencing hearing, the trial court inquired and was made aware that other

individuals may be charged in connection to the larcenies. As of the date of Powell’s sentencing,

-9- however, none of his alleged accomplices had been charged. The trial court determined that it

would leave open the possibility of joint and severable liability with any accomplice who was

formally charged and convicted in connection to these crimes. In ordering restitution, however,

the trial court was aware, contrary to Powell’s assertion, that Powell alone would be obligated to

pay the full restitution amount. Additionally, Powell offers no proof that the Commonwealth’s

statements regarding possible co-defendants were false. We find that the Commonwealth did not

perpetrate fraud on the trial court.

Finally, we consider Powell’s observation that the trial court only referred to the black

autographed Les Paul guitar when fashioning restitution. Although Powell is correct in his

observation, it is clear in context of the trial court’s ruling that the court was balancing the actual

monetary value of all the items taken, the sentimental value of those items as well as Powell’s

ability to repay the Blochs. The autographed Les Paul guitar was an example of the sentimental

value lost to the Blochs which could not be accurately calculated nor replaced given Les Paul’s

death. The trial court opined that Powell would be unlikely to pay $205,000 in restitution and

that he, in fact, would be unlikely to pay even the $100,000 in restitution. Nevertheless, the trial

court properly imposed the $100,000 restitution obligation upon Powell. As articulated above,

we find the trial court did not abuse its discretion when imposing this amount of restitution.

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 Paul Bracy Powell

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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