COURT OF APPEALS OF VIRGINIA
Present: Senior Judges Annunziata, Frank and Petty UNPUBLISHED
ROBERT J. COOK MEMORANDUM OPINION⁎ v. Record No. 1087-21-2 PER CURIAM JUNE 14, 2022 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HANOVER COUNTY Patricia Kelly, Judge
(Stephanie S. Henkle; Henkle Law Firm, on brief), for appellant. Appellant submitting on brief.
(Jason S. Miyares, Attorney General; Tanner M. Russo, Assistant Attorney General, on brief), for appellee.
Appellant’s counsel has moved for leave to withdraw. The motion to withdraw is
accompanied by a brief referring to the part of the record that might arguably support this appeal.
A copy of that brief has been furnished to appellant with sufficient time for him to raise any
matter that he chooses. Appellant 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).
⁎ Pursuant to Code § 17.1-413, this opinion is not designated for publication. BACKGROUND1
Under settled principles, we state the facts in the light most favorable to the
Commonwealth, the prevailing party below. Gerald v. Commonwealth, 295 Va. 469, 472-73
(2018). Under the terms of a written plea agreement, appellant pled guilty to two counts of
aggravated sexual battery of a victim less than thirteen years of age, in violation of Code
§ 18.2-67.3(A)(1), and one count of bribery of a witness, in violation of Code § 18.2-441.1. The
plea agreement provided that appellant’s total active sentence would not exceed five years and
seven months of incarceration. After convicting appellant, the court deferred sentencing and
ordered appellant to undergo a psychosexual evaluation.
The psychosexual evaluation included the Static-99R test, which has “moderate
predictive accuracy” of a subject’s “relative risk for sexual recidivism.” Appellant’s raw score
placed him in a “Very Low” category for recidivism within five years. Compared with a person
with the median score, he was “approximately one fourth times as likely to incur a new sexual
offense charge or conviction within five years.” The report noted that the test “does not measure
all relevant risk factors and is only one piece” of the information considered by the evaluator;
consequently, appellant’s “recidivism risk may be higher or lower than that indicated by the
Static-99R based on factors not included in this risk tool.” The evaluator opined that appellant’s
voluntary admissions that there were “four or five” other victims provided “proof” that appellant
was truthful when he claimed to be “ashamed of what he did and that he was open to
participating in therapy.” Appellant met the diagnostic criteria for “Pedophilic Disorder,” a
1 The record in this case was sealed. Nevertheless, the appeal necessitates unsealing relevant portions of the record to resolve the issues appellant has raised. Evidence and factual findings below that are necessary to address the assignments of error are included in this opinion. Consequently, “[t]o the extent that this opinion mentions facts found in the sealed record, we unseal only those specific facts, finding them relevant to the decision in this case. The remainder of the previously sealed record remains sealed.” Levick v. MacDougall, 294 Va. 283, 288 n.1 (2017). -2- “substantial risk factor,” and had abused both related and unrelated victims, also a risk factor.
The report concluded that although appellant had “substantial risk factors,” they could be
adequately countered through “a lengthy period of probation supervision” and “sex offender
treatment” following his release from prison along with drug testing.
At the sentencing hearing, appellant moved to strike from the psychosexual evaluation
report the statement that his recidivism risk “may be higher or lower than that indicated by the
Static-99R based on factors not included in this risk tool.” He argued that the Commonwealth
had the burden to show the reliability of the Static-99R test. The court offered to continue
sentencing to allow the evaluator to testify about the test’s scientific reliability. Appellant stated
that he did not object to the use of the Static-99R test but wanted the court to strike from the
report the “commentary . . . about the testing.”
The court denied the motion to strike the sentence about the Static-99R test but ruled that
it would give “appropriate weight” to the statement that appellant’s risk “could be higher” and
“could be lower.” Before pronouncing sentence, the court emphasized that the harm appellant
had done could not be “fixed.” The court acknowledged that appellant had admitted that what he
did to the victims “was wrong” and that he was seventy-five years old but found that appellant
needed “accountability” and “punishment.” In accordance with appellant’s plea agreement, the
court sentenced him to forty-five years’ incarceration, with all but five years and seven months
suspended.2 The court did not order GPS monitoring upon appellant’s release, finding it not
“necessary,” but informed appellant that probation still could require it. The court did not
otherwise comment on whether appellant posed a risk of re-offending.
2 The discretionary guidelines recommended incarceration for two years and three months to seven years and six months, with a midpoint of five years and seven months. -3- STANDARD OF REVIEW
“The admissibility of evidence is within the broad discretion of the trial court, and a ruling
will not be disturbed on appeal in the absence of an abuse of discretion.” Warnick v.
Commonwealth, 72 Va. App. 251, 263 (2020) (quoting Amonett v. Commonwealth, 70 Va. App. 1,
9 (2019)). A reviewing court can conclude that “an abuse of discretion has occurred” only in
cases in which “reasonable jurists could not differ” about the correct result, Commonwealth v.
Swann, 290 Va. 194, 197 (2015) (quoting Grattan v. Commonwealth, 278 Va. 602, 620 (2009)),
and we will not reverse a trial judge’s ruling simply because we disagree, Hicks v.
Commonwealth, 71 Va. App. 255, 275 (2019).
ANALYSIS
Appellant argues that the trial court erred by denying his motion to strike the sentence about
appellant’s risk of recidivism relative to the Static-99R test. He contends the error affected
“substantial rights” and led the court to impose a sentence that was “excessive in light of the
presented mitigation,” and thus his “conviction cannot stand.”
The admissibility of evidence at sentencing lies “within the sound discretion of the trial
court.” Runyon v. Commonwealth, 29 Va. App. 573, 576 (1999). Because a sentencing hearing “is
not a criminal trial,” the court has “wide discretion” to consider information that might be
inadmissible at trial, provided that the information “bear[s] some indicia of reliability.” Smith v.
Commonwealth, 52 Va. App. 26, 30, 32 (2008) (quoting Moses v. Commonwealth, 27 Va. App. 293,
302 (1998)). The court is not constrained by trial rules of evidence and may consider “responsible
unsworn or ‘out-of-court’ information relative to the circumstances of the crime and to the
convicted person’s life and characteristics.” Harris v. Commonwealth, 26 Va. App. 794, 809 (1998)
(quoting Williams v. Oklahoma, 358 U.S. 576
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COURT OF APPEALS OF VIRGINIA
Present: Senior Judges Annunziata, Frank and Petty UNPUBLISHED
ROBERT J. COOK MEMORANDUM OPINION⁎ v. Record No. 1087-21-2 PER CURIAM JUNE 14, 2022 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HANOVER COUNTY Patricia Kelly, Judge
(Stephanie S. Henkle; Henkle Law Firm, on brief), for appellant. Appellant submitting on brief.
(Jason S. Miyares, Attorney General; Tanner M. Russo, Assistant Attorney General, on brief), for appellee.
Appellant’s counsel has moved for leave to withdraw. The motion to withdraw is
accompanied by a brief referring to the part of the record that might arguably support this appeal.
A copy of that brief has been furnished to appellant with sufficient time for him to raise any
matter that he chooses. Appellant 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).
⁎ Pursuant to Code § 17.1-413, this opinion is not designated for publication. BACKGROUND1
Under settled principles, we state the facts in the light most favorable to the
Commonwealth, the prevailing party below. Gerald v. Commonwealth, 295 Va. 469, 472-73
(2018). Under the terms of a written plea agreement, appellant pled guilty to two counts of
aggravated sexual battery of a victim less than thirteen years of age, in violation of Code
§ 18.2-67.3(A)(1), and one count of bribery of a witness, in violation of Code § 18.2-441.1. The
plea agreement provided that appellant’s total active sentence would not exceed five years and
seven months of incarceration. After convicting appellant, the court deferred sentencing and
ordered appellant to undergo a psychosexual evaluation.
The psychosexual evaluation included the Static-99R test, which has “moderate
predictive accuracy” of a subject’s “relative risk for sexual recidivism.” Appellant’s raw score
placed him in a “Very Low” category for recidivism within five years. Compared with a person
with the median score, he was “approximately one fourth times as likely to incur a new sexual
offense charge or conviction within five years.” The report noted that the test “does not measure
all relevant risk factors and is only one piece” of the information considered by the evaluator;
consequently, appellant’s “recidivism risk may be higher or lower than that indicated by the
Static-99R based on factors not included in this risk tool.” The evaluator opined that appellant’s
voluntary admissions that there were “four or five” other victims provided “proof” that appellant
was truthful when he claimed to be “ashamed of what he did and that he was open to
participating in therapy.” Appellant met the diagnostic criteria for “Pedophilic Disorder,” a
1 The record in this case was sealed. Nevertheless, the appeal necessitates unsealing relevant portions of the record to resolve the issues appellant has raised. Evidence and factual findings below that are necessary to address the assignments of error are included in this opinion. Consequently, “[t]o the extent that this opinion mentions facts found in the sealed record, we unseal only those specific facts, finding them relevant to the decision in this case. The remainder of the previously sealed record remains sealed.” Levick v. MacDougall, 294 Va. 283, 288 n.1 (2017). -2- “substantial risk factor,” and had abused both related and unrelated victims, also a risk factor.
The report concluded that although appellant had “substantial risk factors,” they could be
adequately countered through “a lengthy period of probation supervision” and “sex offender
treatment” following his release from prison along with drug testing.
At the sentencing hearing, appellant moved to strike from the psychosexual evaluation
report the statement that his recidivism risk “may be higher or lower than that indicated by the
Static-99R based on factors not included in this risk tool.” He argued that the Commonwealth
had the burden to show the reliability of the Static-99R test. The court offered to continue
sentencing to allow the evaluator to testify about the test’s scientific reliability. Appellant stated
that he did not object to the use of the Static-99R test but wanted the court to strike from the
report the “commentary . . . about the testing.”
The court denied the motion to strike the sentence about the Static-99R test but ruled that
it would give “appropriate weight” to the statement that appellant’s risk “could be higher” and
“could be lower.” Before pronouncing sentence, the court emphasized that the harm appellant
had done could not be “fixed.” The court acknowledged that appellant had admitted that what he
did to the victims “was wrong” and that he was seventy-five years old but found that appellant
needed “accountability” and “punishment.” In accordance with appellant’s plea agreement, the
court sentenced him to forty-five years’ incarceration, with all but five years and seven months
suspended.2 The court did not order GPS monitoring upon appellant’s release, finding it not
“necessary,” but informed appellant that probation still could require it. The court did not
otherwise comment on whether appellant posed a risk of re-offending.
2 The discretionary guidelines recommended incarceration for two years and three months to seven years and six months, with a midpoint of five years and seven months. -3- STANDARD OF REVIEW
“The admissibility of evidence is within the broad discretion of the trial court, and a ruling
will not be disturbed on appeal in the absence of an abuse of discretion.” Warnick v.
Commonwealth, 72 Va. App. 251, 263 (2020) (quoting Amonett v. Commonwealth, 70 Va. App. 1,
9 (2019)). A reviewing court can conclude that “an abuse of discretion has occurred” only in
cases in which “reasonable jurists could not differ” about the correct result, Commonwealth v.
Swann, 290 Va. 194, 197 (2015) (quoting Grattan v. Commonwealth, 278 Va. 602, 620 (2009)),
and we will not reverse a trial judge’s ruling simply because we disagree, Hicks v.
Commonwealth, 71 Va. App. 255, 275 (2019).
ANALYSIS
Appellant argues that the trial court erred by denying his motion to strike the sentence about
appellant’s risk of recidivism relative to the Static-99R test. He contends the error affected
“substantial rights” and led the court to impose a sentence that was “excessive in light of the
presented mitigation,” and thus his “conviction cannot stand.”
The admissibility of evidence at sentencing lies “within the sound discretion of the trial
court.” Runyon v. Commonwealth, 29 Va. App. 573, 576 (1999). Because a sentencing hearing “is
not a criminal trial,” the court has “wide discretion” to consider information that might be
inadmissible at trial, provided that the information “bear[s] some indicia of reliability.” Smith v.
Commonwealth, 52 Va. App. 26, 30, 32 (2008) (quoting Moses v. Commonwealth, 27 Va. App. 293,
302 (1998)). The court is not constrained by trial rules of evidence and may consider “responsible
unsworn or ‘out-of-court’ information relative to the circumstances of the crime and to the
convicted person’s life and characteristics.” Harris v. Commonwealth, 26 Va. App. 794, 809 (1998)
(quoting Williams v. Oklahoma, 358 U.S. 576, 584 (1959)). Additionally, at sentencing, just as
during trial, there is no “right to have the evidence ‘sanitized’ so as to deny the [factfinder]
-4- knowledge of all but the immediate crime for which he is on trial. The fact-finder is entitled to all
of the relevant and connected facts.” Baldwin v. Commonwealth, 69 Va. App. 75, 84 (2018)
(alteration in original) (quoting Currier v. Commonwealth, 65 Va. App. 605, 615 (2015)).
Here, the record demonstrates that the trial court properly exercised its discretion. The
psychosexual evaluation report was prepared to “guide the judge in determining” appellant’s
punishment. Code § 19.2-300. The statement to which appellant objected provided necessary
information about the limitations of the Static-99R test and thus helped the court as it evaluated
what sentence would be appropriate in appellant’s case. See Baldwin, 69 Va. App. at 89 (finding
no abuse of discretion because the contested information “provided vital information for the trial
court’s determination of a proper sentence”). The report explained that the Static-99R test “does
not measure all relevant risk factors” and that the evaluator considered it along with other
information. The statement to which appellant objected explained that his score on the
Static-99R test did not necessarily identify his actual recidivism risk. As the court recognized,
appellant’s risk “could be higher,” “could be lower,” or could be exactly as identified by the test.
That statement, as part of a court-ordered evaluation report, bore “indicia of reliability” and
pertained to appellant’s “life and characteristics.” Smith, 52 Va. App. at 32; Harris, 26 Va. App. at
809 (quoting Williams, 358 U.S. at 584). Thus, the court did not abuse its discretion by refusing to
strike the statement from the report.
CONCLUSION
Accordingly, we affirm the trial court’s judgment and grant the motion for leave to
withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). This Court’s records shall reflect
that Robert J. Cook is now proceeding without the assistance of counsel in this matter and is
representing himself on any further proceedings or appeal.
Affirmed.
-5-