Shana Christine Winborne v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: December 29, 2022
• Docket: 0715221
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Senior Judges Annunziata, Clements and Petty UNPUBLISHED

SHANA CHRISTINE WINBORNE MEMORANDUM OPINION* v. Record No. 0715-22-1 PER CURIAM DECEMBER 29, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Jerrauld C. Jones, Judge

(Lenita J. Ellis, on brief), for appellant. Appellant submitting on brief.

(Jason S. Miyares, Attorney General; Aaron J. Campbell, Assistant Attorney General, on brief), for appellee.

Counsel for Shana Christine Winborne 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 Winborne with sufficient time for

her to raise any matter that she chooses. On appeal, Winborne, by counsel, argues that the trial

court abused its discretion in imposing an active sentence of 17 years of imprisonment. She also

appears to argue, pro se, that the proceedings violated her right to be free from double jeopardy.

We have reviewed the parties’ pleadings, fully examined the proceedings, and determined that this

appeal is wholly frivolous and 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).

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. BACKGROUND

“On appeal, we view the record in the light most favorable to the Commonwealth

because it was the prevailing party below.” Delp v. Commonwealth, 72 Va. App. 227, 230

(2020).

Upon an indictment for first-degree murder, Winborne entered a guilty plea to

second-degree murder of her husband.1 The victim died from a single stab wound to the chest.

The plea agreement provided that Winborne’s active sentence would not exceed the greater of 22

years or the high end of the sentencing guidelines. At sentencing, Winborne asked the trial court

to consider her history of mental health issues, her acceptance of responsibility for her actions,

and remorse. The trial court sentenced Winborne to 25 years with eight years suspended.2

ANALYSIS

Winborne argues that the trial court erred in imposing an active sentence of 17 years.

“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.” Minh Duy Du v. Commonwealth, 292 Va. 555, 564 (2016) (quoting Alston v.

Commonwealth, 274 Va. 759, 771-72 (2007)).

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

Code § 18.2-32. It was within the trial court’s purview to consider any mitigating circumstances,

such as Winborne’s history of mental health issues and remorse for her actions. Keselica v.

Commonwealth, 34 Va. App. 31, 36 (2000). “Criminal sentencing decisions are among the most

Several months before her guilty plea, the trial court granted the Commonwealth’s 1

motion to nolle prosequi an additional charge of second-degree murder against Winborne. 2 The high end of the sentencing guidelines was 25 years. -2- 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. Accordingly, the trial court did not abuse its

discretion in imposing Winborne’s sentence.

In her pro se pleading, Winborne asserts that she was twice charged with malicious

wounding, the charge was nolle prosequied twice, and, as a result, her double jeopardy rights

were violated.3 The double jeopardy clause protects against “(1) a second prosecution for the

same offense after acquittal, (2) a prosecution for the same offense after conviction, and

(3) multiple punishments for the same offense.” Commonwealth v. Hudgins, 269 Va. 602,

604-05 (2005). The record in this appeal contains no indication that criminal proceedings

against Winborne violated any of these protections. Accordingly, Winborne’s double jeopardy

claim is without merit.

CONCLUSION

For the foregoing reasons, 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 Shana Christine Winborne is now proceeding without the assistance of counsel

in this matter and is representing herself on any further proceedings or appeal.

Affirmed.

3 We note the record in the current appeal does not include the proceeding against Winborne for malicious wounding, which apparently arose from a previous stabbing incident against her husband. -3-