Rhasean Shamar Anderson v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: October 17, 2023
• Docket: 0993222
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Chief Judge Decker, Judges Athey and White Argued at Richmond, Virginia

RHASEAN SHAMAR ANDERSON MEMORANDUM OPINION* BY v. Record No. 0993-22-2 CHIEF JUDGE MARLA GRAFF DECKER OCTOBER 17, 2023 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY Ricardo Rigual, Judge

James Joseph Ilijevich for appellant.

Mason D. Williams, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

The trial court convicted Rhasean Shamar Anderson of two counts of distributing a

Schedule I or II substance and sentenced him to nine years of active incarceration. The appellant

contends that the trial court erred by imposing the active term of incarceration, by denying his

motion to vacate his sentence, and by denying his motion to withdraw his guilty plea. For the

reasons that follow, we affirm the trial court’s judgment.

BACKGROUND1

The Commonwealth’s evidence established that on February 19, 2019, Virginia State

Police Special Agent T.M. Chrisley saw the appellant engage in conduct “consistent with

dropping off cocaine for immediate resale.” The appellant had been the subject of another drug

investigation and was known to have multiple convictions for selling narcotics. Law

* This opinion is not designated for publication. See Code § 17.1-413(A). 1 The appellate court views the evidence in the light most favorable to the prevailing party at trial, in this case the Commonwealth. Stone v. Commonwealth, 297 Va. 100, 102 (2019). enforcement obtained a warrant and arrested the appellant on February 27, 2019, after observing

him “arrive at and then quickly leave the same place” as the week before. He attempted to flee,

but officers apprehended him and found drugs and money on his person in a search incident to

his arrest. The police found marked bills they had provided previously for controlled drug

purchases among the cash the appellant carried. He admitted his involvement in the drug sales

and agreed to cooperate with the police in their ongoing investigation. He then participated in

controlled drug purchases, ultimately leading to the arrest and conviction of a heroin dealer. The

police discovered, however, that while he was cooperating, the appellant also obtained drugs

from the same dealer. After refusing to take a polygraph test when asked about the murder of

another suspected drug dealer, the appellant was returned to custody.

In September 2021, the appellant and the Commonwealth reached a plea agreement. As

part of the agreement, the Commonwealth amended both indictments to charge a first offense

rather than a third or subsequent offense. This reduced the appellant’s sentencing exposure from

a maximum of two life sentences with ten-year mandatory minimums to a maximum sentence of

forty years each, with five-year mandatory minimums. The Commonwealth also agreed to nolle

pross other charges against the appellant and to inform the trial court at sentencing of “all the

assistance” he had given the Commonwealth. In the written plea agreement, the appellant

acknowledged that the trial “court is free to impose any lawful sentence on those two counts of

first offense distribution of a schedule I or II substance.”

Before accepting the appellant’s guilty plea, the trial court conducted a thorough

colloquy. The appellant acknowledged that he understood the charges against him and had had

time to discuss them with his attorney. He confirmed that he had decided for himself that

agreeing to plead guilty was in his “best interest.” He also acknowledged that he understood the

potential sentences for each charged offense. The court found that the appellant had voluntarily,

-2- knowingly, and intelligently entered his guilty plea after thorough consultation with his attorney,

and found him guilty of the two drug distribution offenses. The court ordered a presentence

report and set the case for sentencing.

The sentencing hearing was continued at the appellant’s request, and the judge who had

found him guilty did not preside at the later sentencing hearing. In accordance with the plea

agreement, the Commonwealth informed the trial court of the appellant’s cooperation with the

police. The prosecutor also told the court about the appellant’s indiscretions while on bond,

which led to his re-confinement. The appellant asked for a downward departure from the

sentencing guidelines based on his cooperation and acceptance of responsibility. The trial court

noted that the appellant had accepted responsibility for the offenses and had provided

“substantial assistance” to the Commonwealth. Emphasizing that the appellant had already

received a significant benefit from the Commonwealth based on the amended indictments and

nolle prossed charges, the court sentenced him to fifty years of incarceration with all but nine

years suspended.

The appellant did not object during the sentencing hearing to a different judge sentencing

him. After the entry of the final order, however, he filed a motion to vacate and reconsider his

sentence, alleging that the judge who accepted his guilty plea should have been the one to

sentence him. The trial court denied the motion without a hearing.

The appellant then moved to withdraw his guilty plea, arguing that the Commonwealth

breached the plea agreement by downplaying his cooperation with the police and emphasizing

his criminal conduct. Following a hearing on the motion, the trial court found that the

-3- Commonwealth had not breached the agreement and denied the appellant’s motion to withdraw

his plea.2

ANALYSIS

The appellant contends that the trial court erred by imposing the active term of

incarceration, by denying his motion to vacate his sentence, and by denying his motion to

withdraw his guilty plea.

I. Challenge to Discretionary Sentencing Determination

The appellant argues that the trial court erred by sentencing him to an active term of

incarceration, “disregarding the adjusted low end of the guidelines and ignoring mitigating

evidence including cooperation” with the Commonwealth.

“We review the trial court’s sentence for abuse of discretion.” Scott v. Commonwealth,

58 Va. App. 35, 46 (2011). “This bell-shaped curve of reasonability governing our appellate

review rests on the venerable belief that the judge closest to the contest is the judge best able to

discern where the equities lie.” Minh Duy Du v. Commonwealth, 292 Va. 555, 564 (2016)

(quoting Sauder v. Ferguson, 289 Va. 449, 459 (2015)). “Only when reasonable jurists could not

differ can we say an abuse of discretion has occurred.” Commonwealth v. Swann, 290 Va. 194,

197 (2015) (quoting Grattan v. Commonwealth, 278 Va. 602, 620 (2009)). A trial court abuses

its discretion by failing to consider a significant relevant factor, giving significant weight to an

irrelevant or improper factor, committing a clear error of judgment, or making a mistake of law.

See Minh Duy Du, 292 Va. at 564-65; Lawlor v. Commonwealth, 285 Va. 187, 213 (2013).

“[W]hen a statute prescribes a maximum imprisonment penalty and the sentence does not exceed

2 The appellant made a pro se request to modify his sentence pursuant to Code § 19.2-303, which the trial court denied on July 26, 2022. He did not appeal that ruling. -4- 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)).

To address the appellant’s challenge, we are also guided by certain basic well-established

principles relating to sentencing and the use of guidelines. “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). “[T]he recommended sentencing ranges

contained in these discretionary guidelines are not binding on the trial judge but, rather, 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). A judge’s decision not 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). Accordingly, we may only consider whether the sentence fell outside the

permissible statutory range. See Fazili v. Commonwealth, 71 Va. App. 239, 248 (2019); Smith v.

Commonwealth, 26 Va. App. 620, 626 (1998).

The sentence the trial court imposed was within the range set by the legislature. See

Code § 18.2-248. The court had evidence presented by the appellant in mitigation. It considered

any mitigating circumstances, including the appellant’s cooperation with the police and letters

from his family and friends describing his good character, but it “was not obligated to find” that

those factors merited a reduced sentence. Cellucci v. Commonwealth, 77 Va. App. 36, 52 (2023)

(en banc); see Keselica v. Commonwealth, 34 Va. App. 31, 36 (2000). And, “[b]arring 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. Commonwealth, 13 Va. App.

580, 584 (1992). There is simply no evidence in this case to support a finding that the trial court

“purposefully ignored mitigating factors.” In fact, the record demonstrates the contrary. For

-5- example, the court noted that the appellant accepted responsibility for his actions and provided

“substantial assistance” to law enforcement. The court logically and reasonably weighed those

factors in light of the other evidence.

“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. Evidence of mitigation is considered in light of all the relevant circumstances.

See Lawlor v. Davis, 288 Va. 223, 244-45 (2014). Here, the appellant’s cooperation and

participation in controlled drug buys leading to the arrest and conviction of another drug dealer

was balanced against his continued criminal conduct, even while on bond and working with the

police. The appellant had “extensive experience in selling narcotics” and was part of a large

drug trafficking organization. The trial court could have imposed a total of eighty years on the

appellant’s convictions but imposed only fifty years and suspended forty-one years, leaving him

nine years to serve. We hold that the court clearly did not abuse its discretion in sentencing the

appellant.

II. Motion to Vacate Sentence

The appellant argues that the trial court should have granted his motion to vacate his

sentence because he was not sentenced by the judge who accepted his guilty plea and he did not

have a substance abuse screening as required by Code § 19.2-299(D). He also asserts that the

court abused its discretion by denying his motion without a hearing.

The decision of whether to grant or deny a motion to vacate, or to hold a hearing on the

motion, is a matter within the trial court’s discretion and will not be disturbed on appeal unless

the court abused its discretion. See Cloutier v. Queen, 35 Va. App. 413, 421 (2001). No abuse

-6- of discretion occurred here because the trial court considered all relevant factors, did not

consider any improper factors, did not commit a clear error in judgment, nor make an error of

law. See Cellucci, 77 Va. App. at 46.

The appellant first contends he was entitled to a new sentencing hearing so that the judge

who had taken his guilty plea could sentence him because that judge “had extensive knowledge

about [him] and all the circumstances surrounding the case.” He asserts that “the sentencing

judge . . . did not have many of the details regarding [his] history, his statements or the

circumstances surrounding his plea,” which had been included in pretrial motions filed by both

parties.

The record reflects that the original trial judge was to preside over the scheduled

sentencing hearing, but that hearing was continued at the appellant’s request because his attorney

had been exposed to COVID. Nothing in the record supports the appellant’s implicit assertion

that the original judge would have been in a better position to assess the evidence and sentence

him. He cites no authority to support his proposition that he was entitled to have a specific judge

sentence him, and we know of none.3 To the contrary, we adhere to the reasonable conclusion

that “[a] defendant has no vested right to have his case tried before any particular judge.”

Anderson v. State, 327 P.3d 89, 95 (Wyo. 2014) (quoting United States v. Keane, 375 F. Supp.

1201, 1204 (N.D. Ill. 1974)). In fact, Code § 17.1-503(B) expressly allows more than one judge

to hear different parts of a case. The statute provides that “the judge before whom an accused is

arraigned in criminal cases [may] hear[] all aspects of the case on its merits” and “any judge in

any case who has heard any part of the case on its merits [may] hear[] the case to its conclusion.”

Rule 5A:20(e) requires a party to include in the argument portion of his brief “principles 3

of law and authorities” for each assignment of error. If the failure to comply is “significant,” the claim may be waived. Conley v. Commonwealth, 74 Va. App. 658, 681 (2022) (quoting Bartley v. Commonwealth, 67 Va. App. 740, 744 (2017)). In this case, the Court assumes without deciding that Rule 5A:20(e) does not bar consideration of the merits of the issue. -7- See Lynch v. Commonwealth, 39 Va. App. 89, 95 (2002) (rejecting the defendant’s argument that

Code § 17.1-503(B) required the judge who heard his suppression motion to preside at his later

trial).

The record demonstrates that the sentencing judge was aware of the facts and

circumstances of the appellant’s case. All motions and responses were in the court’s record.

Further, the sentencing judge had heard the appellant’s motions for bond, dismissal on speedy

trial grounds, and a “discovery protective order.” The Commonwealth proffered a detailed

recitation of the facts and circumstances at the sentencing hearing. The appellant had the

opportunity to refute portions of the proffer and provide his version of the events, including any

additional information about his cooperation with the Commonwealth. The judge specifically

stated that he had reviewed the sentencing memorandum submitted by the appellant’s counsel,

which included several letters attesting to the appellant’s good character. Accordingly, we hold

that the trial court did not abuse its discretion in denying the motion to vacate the appellant’s

sentence on this basis.

The appellant next argues that the trial court should have vacated his sentence and

conducted a new sentencing hearing because he did not undergo a substance abuse screening as

part of his presentence investigation. Code § 19.2-299(D) provides that “[a]s a part of any

presentence investigation conducted pursuant to subsection A, when the offense for which the

defendant was convicted was a felony, not a Class 1 felony, committed on or after January 1,

2000, the defendant shall be required to undergo a substance abuse screening pursuant to

§ 18.2-251.01.”

We hold that this issue is barred because the appellant did not timely and specifically

object at the sentencing hearing. The appellant acknowledged in court that he had reviewed the

presentence report with his attorney. Obviously, he knew when the sentencing hearing was held

-8- that no substance abuse screening had been done on him. Nevertheless, he waited until after the

trial court imposed sentence to assert that he had not been screened. His objection came too

late.4 See Jiddou v. Commonwealth, 71 Va. App. 353, 373 (2019) (holding that “[p]ost-trial

motions regarding admission of evidence generally are not timely” (quoting Jones v.

Commonwealth, 50 Va. App. 437, 445 (2007))). We hold that in light of the record before us,

this issue is barred from a review on the merits.

Finally, the appellant asserts that the trial court abused its discretion by denying his

motion without conducting a hearing. This challenge was not included in the appellant’s

assignment of error. As a result, “Rule 5A:20(c) requires us to hold that this issue is waived.”

Price v. Commonwealth, 59 Va. App. 764, 766 n.3 (2012). In any event, it is worth noting that

the trial court was not required to hold a hearing before denying the motion to vacate. See

Cellucci, 77 Va. App. at 47 n.5 (noting that whether to hold a hearing to modify a defendant’s

sentence pursuant to Code § 19.2-303 was “a matter within the court’s discretion”); Amos v.

Commonwealth, 61 Va. App. 730, 741 (2013) (en banc) (observing that a party does not have a

“right to present oral argument on a motion to reconsider”), aff’d, 287 Va. 301 (2014).

III. Motion to Withdraw Guilty Plea

The appellant argues that the trial court erred by denying his motion to withdraw his

guilty plea “when the plea agreement and the transcript of [his] plea [hearing] showed that the

Commonwealth[’s] Attorney understated and even undermined the evidence of the [a]ppellant’s

4 Faced with this record, the appellant’s counsel candidly conceded at oral argument that the issue had not been preserved for appeal. See Rule 5A:18 (“No ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable this Court to attain the ends of justice.”); Blevins v. Commonwealth, 63 Va. App. 628, 633-34 n.1 (2014); Cuffee v. Commonwealth, 61 Va. App. 353, 367-68 n.4 (2013). This Court appreciates counsel’s candor as it “embodies the ethical duties expected of a legal advocate and is held in high esteem.” Nimety v. Commonwealth, 66 Va. App. 432, 436 n.3 (2016) (citing Va. R. of Prof’l Conduct 3.3 (“Candor Toward The Tribunal”)). -9- cooperation with law enforcement, which was agreed upon, at the time of his plea, to be

mitigation at sentencing.” We cannot address the merits of this claim because the transcript of

the hearing on his motion to withdraw his plea was not timely filed.

Under Rule 5A:8(a), a transcript must be filed no later than “60 days after entry of the

final judgment.” This Court may extend the deadline “upon a written motion filed within 90

days after the entry of final judgment” provided the appellant shows “good cause to excuse the

delay.” Rule 5A:8(a).

The trial court entered the final order on June 16, 2022, and the transcripts were due

August 15, 2022. The appellant did not file the transcript from the hearing on his motion to

withdraw his guilty plea until August 31, 2022. Further, the appellant did not move for an

extension of time to file the transcript, and the time to do so has expired. See Rule 5A:3(c)(1).

“This Court has no authority to make exceptions to the filing requirements set out in the Rules.”

Bay v. Commonwealth, 60 Va. App. 520, 528 (2012) (quoting Turner v. Commonwealth, 2

Va. App. 96, 99 (1986)).

The lack of a timely filed transcript does not prevent this Court from addressing an

appellant’s assignment of error “[i]f the record on appeal is sufficient in the absence of [a]

transcript to determine the merits of the appellant’s allegations.” Salmon v. Commonwealth, 32

Va. App. 586, 590 (2000) (alterations in original) (quoting Turner, 2 Va. App. at 99).

Conversely, “[w]hen the appellant fails to ensure that the record contains transcripts or a written

statement of facts necessary to permit resolution of appellate issues, any assignments of error

affected by such omission will not be considered.” Rule 5A:8(b)(4)(ii). “Whether the record is

sufficiently complete to permit our review on appeal is a question of law subject to our de novo

review.” Bay, 60 Va. App. at 529.

- 10 - Here, the order entered following the hearing on the appellant’s motion to withdraw his

guilty plea specifically states that the trial court denied the motion “for reasons stated on the

record.” Without a transcript, this Court does not know what the trial court’s reasons were. We

also do not know what arguments the appellant made or what responses the Commonwealth

provided. Under these circumstances, we conclude that the transcript is indispensable for this

Court to resolve this issue. See Smith v. Commonwealth, 32 Va. App. 766, 772 (2000) (holding

that the transcripts were indispensable to addressing the appellant’s claim that the prosecutor

repeatedly referred to facts not in evidence). Because the appellant failed to provide a timely

filed transcript, which is indispensable to resolving the issue regarding withdrawal of his guilty

plea, we cannot consider the merits of this assignment of error. See Rule 5A:8(b)(4)(ii).

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed. We remand the case to

the trial court for the sole purpose of correcting clerical errors in the conviction and sentencing

orders.5

Affirmed and remanded.

5 The appellant initially was charged with two counts of distribution of a controlled substance as a third offense, CR20-993 and CR20-1220, but both charges were amended to first offenses. The conviction order recites that only CR20-993 was amended but states that the trial court found the appellant guilty of two first offenses. The sentencing order imposes sentence for both counts but states that the court found the appellant “guilty of One (1) Count of Two (2) Counts of Distributing a Schedule I/II Controlled Substance, 1st Offense.” Consequently, we remand solely for correction of the clerical errors in the orders. See Code § 8.01-428(B); Bagley v. Commonwealth, 73 Va. App. 1, 30 n.10 (2021). - 11 -