Opinion
Record No. 0195-21-4
03-14-2023
Bradford T. CELLUCCI v. COMMONWEALTH of Virginia
Catherine French Zagurskie, Chief Appellate Counsel (Virginia Indigent Defense Commission, on briefs), for appellant. Andrew N. Ferguson, Solicitor General (Jason S. Miyares, Attorney General; Donald E. Jeffrey, III, Senior Assistant Attorney General; Erika L. Malley, Principal Deputy Solicitor General; Rohiniyurie Tashima, John Marshall Fellow, on brief), for appellee.
Catherine French Zagurskie, Chief Appellate Counsel (Virginia Indigent Defense Commission, on briefs), for appellant.
Andrew N. Ferguson, Solicitor General (Jason S. Miyares, Attorney General; Donald E. Jeffrey, III, Senior Assistant Attorney General; Erika L. Malley, Principal Deputy Solicitor General; Rohiniyurie Tashima, John Marshall Fellow, on brief), for appellee.
Present: Chief Judge Decker, Judges Humphreys, Beales, Huff, O'Brien, AtLee, Malveaux, Athey, Fulton, Ortiz, Causey, Friedman, Chaney, Raphael, Lorish, Callins and White
OPINION BY CHIEF JUDGE MARLA GRAFF DECKER Bradford T. Cellucci was convicted of aggravated malicious wounding in violation of Code § 18.2-51.2. The trial court denied the appellant's motion to modify his sentence pursuant to Code § 19.2-303. On appeal, a divided panel of this Court reversed that decision. Cellucci v. Commonwealth , No. 0195-21-4, 2022 WL 1547990 (Va. Ct. App. May 17, 2022). The Court subsequently granted the Commonwealth's petition for rehearing en banc, stayed the mandate, and reinstated the appeal on the docket. Upon rehearing en banc, we hold that the trial court did not abuse its discretion and affirm the judgment.
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, 823 S.E.2d 241 (2019).
The appellant's underlying conviction arose from his premeditated attack on Bryan Pedroza. In 2015, the appellant went to the retail store where the victim worked during his shift and waited approximately twenty minutes for Pedroza to approach him. When Pedroza took him to the fitting rooms, the appellant struck him from behind with a claw hammer, severing his spinal cord. The attack left Pedroza permanently paralyzed. At the time, the appellant was 23 years old, and the victim was 18.
After the attack, the appellant left Virginia and went to New Jersey. Law enforcement did not apprehend him until two years later. During that time, the appellant moved to Georgia and then Texas, married, had a child, and attended a community college.
Following his arrest, the appellant was charged with aggravated malicious wounding. He entered a guilty plea pursuant to Alford v. North Carolina , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The trial court accepted the plea and found the appellant guilty.
"When offering an Alford plea of guilty, a defendant asserts his innocence but admits that sufficient evidence exists to convict him of the offense." Slusser v. Commonwealth , 74 Va. App. 761, 767 n.2, 872 S.E.2d 223 (2022) (quoting Ramsey v. Commonwealth , 65 Va. App. 593, 596 n.1, 779 S.E.2d 241 (2015) ).
The sentencing guidelines recommended a sentence ranging from five years and eight months to twelve years and eight months. The appellant asked to be sentenced in accordance with the guidelines, explaining that he felt compelled to commit the offense after his girlfriend told him that Pedroza had raped her. He presented a forensic psychological evaluation and a letter from his wife. The psychological report included the opinion of the evaluator that the appellant "meets criteria for a diagnosis of autism spectrum disorder [(ASD)]." The letter from the appellant's wife described the importance of the appellant to her and their daughter. The Commonwealth asked the trial court to deviate upward from the guidelines based on the level of premeditation, violent and horrific nature of the attack, and the devastating effect on Pedroza. In addition, the prosecutor emphasized that the appellant "start[ed] a new life for himself" after attacking Pedroza instead of taking responsibility for his actions.
The trial court imposed a sentence of life in prison and a $100,000 fine, permissible by law. See Code §§ 18.2-10, -51.2. It based the upward departure from the sentencing guidelines on the level of premeditation and the severity of the victim's injury.
The minimum sentence under the statute for aggravated malicious wounding is 20 years. See Code §§ 18.2-10 ; -51.2.
The appellant sought review of his sentence on appeal in this Court, arguing that it was an abuse of discretion. Citing Minh Duy Du v. Commonwealth , 292 Va. 555, 790 S.E.2d 493 (2016), the Court denied the petition for appeal. Cellucci v. Commonwealth , No. 1088-20-4 (Va. Ct. App. Apr. 9, 2021) (order). The appellant sought a hearing by a three-judge writ panel and, after that was denied, petitioned for appeal in the Supreme Court of Virginia. That Court refused his petition.
While his petition for appeal was pending in this Court, the appellant made a motion in the trial court to modify his sentence pursuant to Code § 19.2-303. He argued that "there are circumstances in mitigation of the offense." The appellant referenced his "[s]entencing [m]emorandum, the pre-sentencing report, and evidence and argument at [his] sentencing hearing." In support of his motion, he also filed a five-page memorandum contending that his sentence violated the Eighth Amendment and Due Process Clause of the Federal and State Constitutions.
The trial court denied the motion, concluding that the appellant did not prove any circumstances mitigating the offense. The court specifically found that the appellant did not establish that he had ASD. In addition, the court held that regardless, the appellant did not allege any nexus between any ASD and the commission of his crime. In short, based on the record before it, the court found no basis to support modification of the sentence. On appeal, a divided panel of this Court concluded that the trial court abused its discretion by denying the appellant's motion for modification. Cellucci v. Commonwealth , No. 0195-21-4, 2022 WL 1547990 (Va. Ct. App. May 17, 2022). The panel majority reasoned that the trial court erroneously concluded that no mitigating circumstances existed and, therefore, failed to consider all the evidence in mitigation. Id. , slip op. at 12. We granted the petition for rehearing and have now considered this case anew. See Holt v. Commonwealth , 66 Va. App. 199, 206, 783 S.E.2d 546 (2016).
ANALYSIS
The appellant argues that the trial court abused its discretion by denying his motion under Code § 19.2-303 for modification of his sentence. He contends that the court erred by failing to consider his evidence of mitigating circumstances and by ruling that he did not prove any mitigation. The appellant additionally suggests that, contrary to the trial court's finding, he proved he had ASD at the time of the offense. After reviewing the record and the relevant law, we conclude that the trial court appropriately considered the evidence of mitigating circumstances. The court acted within its purview in finding that the evidence did not establish mitigating circumstances as contemplated by law. Further, the court was not plainly wrong in finding that the appellant did not prove that he had ASD at the time of the offense. An appellate court applies the abuse of discretion standard of review to both a trial court's sentencing decision and its denial of a motion under Code § 19.2-303 to modify that sentence. See Rawls v. Commonwealth , 272 Va. 334, 351, 634 S.E.2d 697 (2006) ; Suhay v. Commonwealth , 75 Va. App. 143, 156, 875 S.E.2d 82 (2022). "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 , 292 Va. at 564, 790 S.E.2d 493 (quoting Sauder v. Ferguson , 289 Va. 449, 459, 771 S.E.2d 664 (2015) ). "Only when reasonable jurists could not differ can we say an abuse of discretion has occurred." Commonwealth v. Swann , 290 Va. 194, 197, 776 S.E.2d 265 (2015) (quoting Grattan v. Commonwealth , 278 Va. 602, 620, 685 S.E.2d 634 (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, 790 S.E.2d 493 ; Lawlor v. Commonwealth , 285 Va. 187, 213, 738 S.E.2d 847 (2013).
In light of these conclusions, we do not address the appellant's challenge to the trial court's alternative finding that he did not establish a nexus between his ASD and the crime. Similarly, we do not consider his contention that a sentence modification would be in the public interest. See Code § 19.2-303 (providing that a court may modify a sentence if "it appears compatible with the public interest and there are circumstances in mitigation of the offense." (emphasis added)). See generally Watson-Scott v. Commonwealth , 298 Va. 251, 258 n.2, 835 S.E.2d 902 (2019) (recognizing that appellate courts decide cases "on the best and narrowest grounds" (quoting Commonwealth v. White , 293 Va. 411, 419, 799 S.E.2d 494 (2017) )).
Factual questions underlying a discretionary determination are within the purview of the trial court. Correll v. Commonwealth , 232 Va. 454, 468, 352 S.E.2d 352 (1987) ; Suhay , 75 Va. App. at 158-59, 875 S.E.2d 82. An appellate court "review[s] factfinding with the highest degree of ... deference." Caldwell v. Commonwealth , 298 Va. 517, 526, 840 S.E.2d 343 (2020) (quoting Vasquez v. Commonwealth , 291 Va. 232, 236, 248, 781 S.E.2d 920 (2016) ). As a result, "we ‘presume the judgment of the trial court to be correct’ and reverse only if the ... decision is ‘plainly wrong or without evidence to support it.’ " Kelly v. Commonwealth , 41 Va. App. 250, 257, 584 S.E.2d 444 (2003) (en banc) (quoting Davis v. Commonwealth , 39 Va. App. 96, 99, 570 S.E.2d 875 (2002) ).
This well-established analytical framework along with the statutory backdrop guides our decision in this case. A trial court's authority to suspend or modify an unserved portion of a felony sentence is restricted to situations in which the person has not yet been transferred to the Department of Corrections or within 60 days of such transfer. Code § 19.2-303. The statute provides that a court "may ... suspend or otherwise modify" the unserved portion of a felony sentence if "there are circumstances in mitigation of the offense" and "it appears compatible with the public interest." Id. The statute simply gives a trial court the discretion to suspend or modify a sentence if certain threshold circumstances are established. See generally Stafford Cnty. v. D.R. Horton, Inc. , 299 Va. 567, 576, 856 S.E.2d 197 (2021) (noting that the word "may" in a statute is "permissive"). These parameters make clear that a trial court's discretion under Code § 19.2-303 to modify a sentence is more limited than the authority it exercises in imposing the original sentence. See generally Minh Duy Du , 292 Va. at 563-64, 790 S.E.2d 493 (discussing the broad discretion involved in sentencing decisions).
The appellant did not request a hearing on his motion. As the parties agree, whether to hold a hearing on a Code § 19.2-303 motion is a matter within the court's discretion. See, e.g. , Amos v. Commonwealth , 61 Va. App. 730, 741, 740 S.E.2d 43 (2013) (en banc) (holding that a party does not have a "right to present oral argument on a motion to reconsider"), aff'd , 287 Va. 301, 754 S.E.2d 304 (2014).
In light of these limitations, it is clear that the statute contemplates the party asking for a sentence suspension or modification under Code § 19.2-303 to provide the court with the particular circumstances that merit changing the original sentence and proffering something to support the requested change. See generally Sanchez-Llamas v. Oregon , 548 U.S. 331, 356, 126 S.Ct. 2669, 2685, 165 L.Ed.2d 557 (2006) (recognizing that an adversary system "relies chiefly on the parties to raise significant issues and present them to the courts in the appropriate manner at the appropriate time").
Consideration of a motion to modify a sentence under this statute is not a new sentencing event. See Code § 19.2-303. Instead, such a motion is viewed in conjunction with the sentencing proceeding that came before it. See generally Minh Duy Du , 292 Va. at 562, 790 S.E.2d 493 (reviewing sentence after the trial court denied the defendant's motion under Rule 1:1 to reconsider); Wilson v. Commonwealth , 54 Va. App. 631, 639, 681 S.E.2d 74 (2009) (considering a trial court's jurisdiction pursuant to Code § 19.2-303 ). Nevertheless, it presumes a basis for reconsideration. Further, the statute does not bind a court to the evidence that a defendant relies on in support of a motion for a sentence modification or suspension. In other words, Code § 19.2-303 does not affect the discretionary nature of sentencing determinations. See Suhay , 75 Va. App. at 158, 875 S.E.2d 82 (considering Code § 19.2-303.6 ).
When exercising its discretionary power, the trial 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." Lawlor , 285 Va. at 212-13, 738 S.E.2d 847 (quoting Landrum v. Chippenham & Johnston-Willis Hosps., Inc. , 282 Va. 346, 352, 717 S.E.2d 134 (2011) ). Although appellate courts generally defer to a trial court's exercise of its discretionary powers, questions of law are reviewed de novo. See Hall v. Commonwealth , 296 Va. 577, 582, 821 S.E.2d 921 (2018) (reviewing the construction of a statute in the sentencing context).
It is well-established that "[i]f a sentence imposed is within the statutory limits fixed by the legislature, the assumption is that the sentence will not be disturbed on appeal." Bassett v. Commonwealth , 13 Va. App. 580, 582, 414 S.E.2d 419 (1992) ; accord Minh Duy Du , 292 Va. at 564, 790 S.E.2d 493 ("[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." (quoting Alston v. Commonwealth , 274 Va. 759, 771-72, 652 S.E.2d 456 (2007) )). Here, there is no dispute that the sentence imposed was within the range set by the legislature. See Code §§ 18.2-10(b), 18.2-51.2(A).
The holding in Minh Duy Du applies to our review in this case. In Minh Duy Du , 292 Va. at 562, 790 S.E.2d 493, the defendant appealed after the trial court imposed his sentence and denied his motion to reconsider filed in compliance with Rule 1:1. We recognize that the appellant argues that Minh Duy Du , 292 Va. 555, 790 S.E.2d 493, and the related line of cases erroneously interpret Messer v. Commonwealth , 145 Va. 872, 134 S.E. 565 (1926). However, we are bound by decisions of the Supreme Court of Virginia and are not in a position to overrule them. See Rushing v. Commonwealth , 284 Va. 270, 280 n.5, 726 S.E.2d 333 (2012), superseded by statute on other grounds , Code § 19.2-324.1, as recognized in 2013 Op. Va. Att'y Gen. 47, 48, https://www.oag.state.va.us/files/AnnualReports/AnnualReports2001-Present/2013_Annual_Report.pdf; Vay v. Commonwealth , 67 Va. App. 236, 258 n.6, 795 S.E.2d 495 (2017).
This is the extent of our substantive sentencing review "[a]bsent an alleged statutory or constitutional violation." Minh Duy Du , 292 Va. at 563, 790 S.E.2d 493. The appellant here argues that, under Code § 19.2-303, the trial court violated the statute by failing to consider the circumstances in mitigation of his crime. See Hall , 296 Va. at 582, 821 S.E.2d 921 (reviewing de novo the construction of a statute in the sentencing context); Minh Duy Du , 292 Va. at 563, 790 S.E.2d 493 (noting that sentencing decisions must fall "within the lawful boundaries of applicable ... statutes and constitutional limitations"). Specifically, he contends that the court abused its discretion by finding that he failed to prove any such circumstances.
The burden to prove mitigating circumstances falls on the defendant. See Harris v. Commonwealth , 57 Va. App. 205, 212, 700 S.E.2d 475 (2010). Generally, evidence in mitigation as contemplated by Code § 19.2-303 relates to facts that could impact the appropriate degree of punishment. Wilson , 54 Va. App. at 641, 681 S.E.2d 74. They are facts that "tend to lessen an accused's moral culpability for the crime committed." Id. at 642, 681 S.E.2d 74. Under the plain meaning of the statutory phrase "circumstances in mitigation of the offense," facts in mitigation are to be linked to or viewed in context with the crime. See Code § 19.2-303. See generally Jones v. Commonwealth , 296 Va. 412, 415, 821 S.E.2d 540 (2018) (noting that courts are bound by the plain meaning of unambiguous statutory language). Nothing in the record here indicates that the trial court failed to consider the evidence of mitigating circumstances. When denying the limited motion to modify the appellant's sentence, the trial court issued a detailed eight-page order. In that lengthy order, it expressly considered the appellant's sentencing memorandum, the presentence investigation report, the evidence, the argument presented at sentencing, the appellant's motion for modification, and his memorandum in support of that motion. The court noted that the appellant neglected to specify the mitigating circumstances that he believed supported modification of his sentence, something he was required to do under the express language of the statute. Nevertheless, the court inferred, based on the appellant's memorandum, that his argument was that "the dispositive circumstance in mitigation of his offense" was the evidence that he has ASD. The court then addressed that point. After examining the appellant's evidence relating to ASD, the court found that it "had minimal probative value." In fact, it found that the appellant did not prove that he had ASD at the time of the offense. The order noted that upon consideration of the case, the court found "as a matter of fact and law that the defendant ... failed to prove any circumstance in mitigation of his offense." (Emphasis added).
In his two-page motion to modify his sentence, the appellant argued that "there are circumstances in mitigation of the offense." He did not specify what he believed those circumstances were, but instead he referenced his "Sentencing Memorandum, the pre-sentencing report, and evidence and argument at [his] sentencing hearing." In support of his motion, the appellant filed a brief contending that his sentence violated the Eighth Amendment and Due Process Clause of the Federal and State Constitutions. He did not mention his age, lack of criminal history, or rehabilitation, points he now emphasizes on appeal.
In reading the order as a whole in light of the applicable standard of review, we conclude that it does not support a finding that the trial court disregarded the other evidence now highlighted by the appellant as mitigating. See Mitchell v. Commonwealth , 73 Va. App. 234, 244, 858 S.E.2d 415 (2021) (presuming that trial courts correctly apply the law absent clear evidence to the contrary in the record); accord Asphalt Rds. & Materials Co. v. Commonwealth, Dep't of Transp. , 257 Va. 452, 459, 512 S.E.2d 804 (1999). The trial court's single statement that the appellant "failed to prove any circumstance in mitigation of his offense," without more, simply does not demonstrate that it neglected to consider the undisputed evidence of the appellant's age, his lack of prior criminal convictions, and his argument that he had shown his amenability to rehabilitation. (Emphasis added). See Bassett , 13 Va. App. at 584, 414 S.E.2d 419 ("Barring 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."). See generally Wilson , 54 Va. App. at 641-42, 681 S.E.2d 74 (explaining that a defendant's age and absence of a previous criminal record might constitute evidence of mitigating circumstances as contemplated by Code § 19.2-303 ).
It is axiomatic that an appellate court must avoid "fix[ing] upon isolated statements of the trial judge taken out of the full context in which they were made[ ] and us[ing] them as a predicate for holding the law has been misapplied." Coward v. Wellmont Health Sys. , 295 Va. 351, 363 n.11, 812 S.E.2d 766 (2018) (quoting Yarborough v. Commonwealth , 217 Va. 971, 978, 234 S.E.2d 286 (1977) ) (applying this principle in the context of reviewing a trial court's letter opinion); see also Mitchell , 73 Va. App. at 244, 858 S.E.2d 415 (citing the principle that this Court presumes a trial court has correctly applied the law). A court speaks through its written orders, Roe v. Commonwealth , 271 Va. 453, 457, 628 S.E.2d 526 (2006), and a reviewing court must read those orders in context, Coward , 295 Va. at 363 n.11, 812 S.E.2d 766. See also Hill v. Commonwealth , ––– Va. ––––, ––––, 876 S.E.2d 173 (2022) (recognizing that a judicial order can clearly convey an implicit provision).
The appellant asks this Court to isolate a statement from the order to conclude that the trial court erred. Instead, as the law requires, the Court looks to the entire record. In ruling on the appellant's motion to modify his sentence under Code § 19.2-303, the trial court expressly took into account the presentence report and the arguments at sentencing. The record reflects that the court considered the appellant's age and lack of criminal convictions, as well as the evidence on which he relies now to argue that he demonstrated his amenability to rehabilitation. The appellant contends on appeal that his evidence of these factors proved mitigating circumstances. By the plain meaning, mitigating circumstances are facts that "tend to lessen an accused's moral culpability for the crime committed." Wilson , 54 Va. App. at 642, 681 S.E.2d 74. Whether a certain fact, such as a defendant's age, tends to lessen his moral culpability depends on the particular circumstances of each case. Cf. Lawlor v. Davis , 288 Va. 223, 244-45, 764 S.E.2d 265 (2014) (noting that evidence of mitigation is considered in light of all the relevant circumstances). Here, in making this discretionary determination, the trial court was not obligated to find that the evidence highlighted by the appellant actually mitigated his crime. See Keselica v. Commonwealth , 34 Va. App. 31, 36, 537 S.E.2d 611 (2000). Viewing the order in its entirety and under the proper standard, we conclude that the trial court appropriately considered the evidence of mitigating circumstances pursuant to Code § 19.2-303 and simply weighed that evidence as it saw fit. See generally Henderson v. Commonwealth , 285 Va. 318, 326, 736 S.E.2d 901 (2013) (inferring a trial court's finding based on its ruling); Murphy v. Commonwealth , 246 Va. 136, 142, 431 S.E.2d 48 (1993) (holding that the trial court considered the defendant's evidence of mitigating circumstances).
The dissent believes that the evidence of the appellant's age at the time of the offense, his lack of a prior criminal record, and his conduct during the time between the attack and his arrest necessarily and conclusively establish circumstances that mitigate his offense. We reject the contention that this evidence per se establishes mitigating circumstances. The statute's direction for trial courts to consider "circumstances in mitigation of the offense " signals a case-specific inquiry. See Code § 19.2-303 (emphasis added). Wilson , 54 Va. App. at 641, 681 S.E.2d 74, on which the dissent and the appellant rely, noted that mitigating circumstances "[g]enerally ... include" " ‘a good previous record.’ " (Quoting Commonwealth v. Shifflett , 257 Va. 34, 44, 510 S.E.2d 232 (1999) ). In addition, Wilson lists the examples of possible facts in mitigation provided by the General Assembly in the capital murder context, which "may include ... the age of the defendant at the time" of the crime. Id. at 641-42, 681 S.E.2d 74 (quoting Code § 19.2-264.4 (repealed 2021)). Nothing in Wilson establishes that a lack of a prior criminal record and being 23 years old at the time of the offense reduce a defendant's moral culpability as a matter of law. Similarly, viewing the record in the light most favorable to the Commonwealth, we do not conclude that the evidence that the appellant fled the state, married, and generally remained under the radar of the criminal justice system instead of turning himself in to the authorities proved as a matter of law his ability to be rehabilitated. In short, contrary to the appellant's suggestion, this Court declines the invitation to disturb the trial court's discretion in this sentencing decision.
The appellant also suggests that the trial court made a factual finding that was plainly wrong because, according to him, the record definitively establishes that he had ASD at the time of the offense. The author of the psychological evaluation entered into evidence opined that the appellant "meets the criteria for a diagnosis of" ASD. The trial court, however, concluded that based on the record before it the appellant did not establish that he in fact had ASD. The court explained:
The psychologist also concluded that the appellant "historically met criteria" for diagnoses of Major Depressive Disorder, Generalized Anxiety Disorder, Opioid Use Disorder, and Cannabis Use Disorder. She did not provide an actual diagnosis.
While the [appellant's] statement of his ... history in the [presentence report] states he was diagnosed with autism at the age of two, he does not recount treatment and intervention services beyond speech therapy as a toddler and having an Individual Education Plan in primary and secondary school. Similarly, the [appellant's] forensic evaluation report ceases any material recitation of ASD in [his] history at the age of six, when he reportedly transitioned his schooling from a special center for autism to a mainstream school.... No evidence was presented that the defendant has continued to receive special services as an adult to manage his ostensive ASD. The
letters from his close family members attached to the sentencing memorandum only speak of struggles the [appellant] went through at an early age. Descriptions of him as a teen and adult by contrast are utterly silent as to any further struggles with ASD, and to the contrary, acclaim his empathy, work ethic, and character.
The court noted that "the only manifestation" that the "psychological evaluator observed of ostensible ASD was that the defendant would smile and nod along while she spoke even though he did not fully comprehend what she was saying." After considering these factors, the court opined that it was "unsurprising that the evaluator could only diagnose the defendant with ASD ‘by history’ rather than ‘currently.’ " The court further noted that the suggestion that he had ASD was "undermin[ed]" by her observation that he made appropriate eye contact and "engaged in reciprocal communication that was cooperative," behaviors inconsistent with her own description of an autistic individual. Based on this reasoning, the court found that the appellant did not establish that he had ASD at the time of the offense. When viewing the record in the light most favorable to the Commonwealth, we conclude that the trial court did not plainly err in making this factual finding. See Saunders v. Commonwealth , 242 Va. 107, 115, 406 S.E.2d 39 (1991) (holding that "[i]t is peculiarly the function of the fact finder to determine what weight, if any, should be accorded [an] expert opinion" on a factual issue). See generally Caldwell , 298 Va. at 525, 840 S.E.2d 343 (noting that review of factual findings does not ask whether the appellate court would have made the same findings if it had acted as the trial judge).
The trial court sentenced the appellant within the range of punishment authorized by the legislature. In addition, after weighing the evidence in the record, the court found that the appellant failed to prove circumstances in mitigation of his crime. The court's findings underlying the decision were neither plainly wrong nor without evidence to support them. For these reasons, the denial of the appellant's motion to modify his sentence was not an abuse of discretion. See Minh Duy Du , 292 Va. at 564, 790 S.E.2d 493.
CONCLUSION
The trial court did not abuse its discretion in denying the appellant's motion for modification of his sentence pursuant to Code § 19.2-303. His sentence was within the permitted statutory range, and the court did not make any factual or legal errors in denying the motion. For these reasons, we affirm the judgment of the trial court.
Affirmed.
Ortiz, J., with whom Causey and Callins, JJ., join, dissenting.
I respectfully disagree with the majority's holding that the trial court did not abuse its discretion in denying the appellant's motion for modification of his sentence pursuant to Code § 19.2-303. The trial court failed to consider all relevant factors in refusing to modify a sentence under Code § 19.2-303, as it overlooked the appellant's lack of criminal history, both before and after the crime, ability to be rehabilitated, and age as mitigating circumstances. In erroneously concluding that the appellant proved no mitigating circumstances evidence, the trial court also failed to consider these relevant factors that should have been given significant weight. Thus, the trial court abused its discretion in concluding that the appellant failed to prove any mitigating circumstances.
While a fact finder "[is] not required to give controlling effect to the mitigating evidence," it must at least consider mitigating evidence in imposing an appropriate sentence. Murphy v. Commonwealth , 246 Va. 136, 142, 431 S.E.2d 48 (1993) (quoting Correll v. Commonwealth , 232 Va. 454, 468-69, 352 S.E.2d 352 (1987) ). A mitigating circumstance "has no bearing on the actual guilt or innocence of the accused but rather relates only to the degree to which punishment is appropriate." Wilson v. Commonwealth , 54 Va. App. 631, 642, 681 S.E.2d 74 (2009). In Virginia, a mitigating circumstance is " ‘[e]vidence of a good previous record, and extenuating circumstances tending to explain, but not excuse, the commission of’ the crime." Id. at 641, 681 S.E.2d 74 (alteration in original) (quoting Commonwealth v. Shifflett , 257 Va. 34, 44, 510 S.E.2d 232 (1999) ). Some mitigating circumstances include: (1) the defendant's lack of significant prior criminal activity; (2) the defendant's extreme mental or emotional disturbance while committing the crime; (3) the victim's consent to or participation in the conduct; (4) the defendant's significantly impaired capacity "to appreciate the criminality of his conduct or to conform his conduct to the requirements of law"; (5) the defendant's age when he committed the crime; and (6) the defendant's subaverage intellectual function. Id. at 641-42, 681 S.E.2d 74 (quoting Code § 19.2-264.4) ; see also Murphy , 246 Va. at 141-42, 431 S.E.2d 48 (dismissing a defendant's contention that the trial court did not consider mitigating circumstances because the trial court listed the mitigating factors it considered).
While the majority concedes that a motion is viewed in "conjunction with the sentencing proceeding that came before it," it refuses to give weight to the evidence of mitigation presented at sentencing. Even viewing the evidence in the light most favorable to the Commonwealth, the appellant presented uncontradicted mitigating evidence at the sentencing hearing and in his sentencing memorandum, the pre-sentencing report, and argument. Prior to his arrest, the appellant had no criminal record. Further, in the two and a half years between the attack and his arrest, the appellant stopped abusing drugs, became involved in a church community, maintained a stable home life, raised his daughter, worked to support his family, attended school, and did not incur further criminal charges while his crime was being investigated. These changes demonstrate his ability to be rehabilitated. Moreover, the appellant was only 23 when he committed the crime. Thus, the appellant presented evidence of three different circumstances in mitigation of his offense to the trial court.
While the trial court considered the appellant's ASD evidence, it then proceeded to ignore the uncontradicted mitigating evidence it had previously considered and accepted. The majority, in its footnote 6, finds that "it is clear that the statute contemplates the party asking for a sentence suspension or modification under Code § 19.2-303 to provide the court with the particular circumstances that merit changing the original sentence." The text of Code § 19.2-303 does not support that conclusion; neither does the history of the statute. In Richardson v. Commonwealth , 131 Va. 802, 809-10, 109 S.E. 460 (1921), the Supreme Court, applying a 1918 statute "providing for probation and suspension of sentences in criminal and juvenile courts," found that the General Assembly gave courts the power to suspend sentences to encourage "the reformation of the criminal" and give him "the opportunity which the state affords him to repent and reform." It also found that the statute was remedial and should be liberally construed. Id. at 811, 109 S.E. 460. The purpose of the sentencing hearing is to set the punishment for committing a crime. The purpose of Code § 19.2-303 is to consider whether the defendant should be given a chance "to repent and reform." Cf. Richardson , 131 Va. at 810, 109 S.E. 460. Because they are not the same type of proceeding, a defendant need not bring something new to the trial court when he submits a motion to reconsider. We would find that Code § 19.2-303 does not impose a requirement that the defendant must present "circumstances that merit changing the original sentence." Per the statutory language, the defendant is only required to represent mitigating circumstances and reasons why suspension would be in the public interest. Code § 19.2-303.
The trial court reiterated that at the sentencing hearing, it had considered all the mitigating circumstances and noted that the appellant failed to specify mitigating circumstances other than his ASD in his motion to reconsider. Yet, the appellant's brief in support of the motion to reconsider, while focusing primarily on his ASD diagnosis as it related to the public interest factor, generally referenced the sentencing hearing evidence to show mitigating circumstances. In fact, the appellant referred the trial court to the very mitigating evidence previously presented in the sentencing hearing.
During the sentencing hearing, the trial court stated that it factored the appellant's thorough sentencing memorandum into its considerations, but that it gave it "the weight and the value that it should be given." Thus, applying the presumption that a trial court knew and correctly applied the law, Stevens v. Commonwealth , 70 Va. App. 280, 306, 826 S.E.2d 895 (2019), the trial court found and considered at least some mitigating circumstances evidence at the sentencing hearing. However, on the motion to reconsider, the trial court did not incorporate its prior sentencing ruling or order into the denial order. Rather, it found that the appellant had failed to list specific mitigating circumstances and then "assumed" that the "dispositive circumstance in mitigation" was the ASD diagnosis.
In short, the trial court could not arbitrarily discredit uncontradicted evidence of the appellant's lack of criminal history, age, and ability to be rehabilitated. Though Wilson , 54 Va. App. at 641-42, 681 S.E.2d 74, only specifically includes lack of criminal history and age as mitigating circumstances, trial courts should consider a defendant's ability to be rehabilitated. See Shifflett v. Commonwealth , 26 Va. App. 254, 261, 494 S.E.2d 163 (1997) (suggesting that the likelihood of rehabilitation is a mitigating factor), rev'd , 257 Va. 34, 510 S.E.2d 232 (1999). Consequently, the trial court made a clear error when it found as a matter of law that these three circumstances were not mitigating.
I agree with the majority that we must both presume a trial judge knew and correctly applied the law and infer a trial court's findings based on its rulings. Stevens , 70 Va. App. at 306, 826 S.E.2d 895 (quoting Yarborough v. Commonwealth , 217 Va. 971, 978, 234 S.E.2d 286 (1977) ). Moreover, I also concur that we must review an order within its entire context. Id. (quoting Yarborough , 217 Va. at 978, 234 S.E.2d 286 ). Where I differ from the majority is in how we apply these principles to this case. A trial judge cannot retain the benefit of the presumption that it considered certain factors while explicitly rejecting those same factors. The only language in the trial court's order that the majority relies on to conclude that the trial court considered all the mitigating circumstances is its general statement that it considered all of the evidence the appellant provided. In reviewing a trial court's order, this language would generally be sufficient, and a trial court would benefit from our usual presumption. However, the trial court's express language and the order's context sufficiently contradict the presumption. First, the trial court expressly held that the appellant "failed to prove any circumstance in mitigation." (Emphasis added). "Any" is an unrestrictive modifier and "is generally considered to apply without limitation." Sussex Cmty. Servs. Ass'n v. Va. Soc'y for Mentally Retarded Children, Inc. , 251 Va. 240, 243, 467 S.E.2d 468 (1996). I cannot restrict the word "any" to mean only evidence relating to the appellant's ASD. To do so would render the word "any" meaningless. Further, the order's context shows that the trial court only considered the ASD and not any other mitigating circumstances. Unlike in its sentencing decision, where the trial court considered aggravating factors when it deviated up from the guidelines, Code § 19.2-303 does not direct the trial court to weigh the mitigating circumstances against the crime and any aggravating circumstances. Instead, Code § 19.2-303 instructs courts to look at whether mitigating circumstances exist and whether a modification would be compatible with the public interest. If, as the majority suggests, the trial court found and considered the three mitigating circumstances the appellant presented, it would have had to review the public interest factor as required by Code § 19.2-303. By failing to do so, the trial court provided contextual clues that it found no mitigating circumstances.
Moreover, although I would normally presume that the trial court correctly weighed the Code § 19.2-303 factors, see Mack v. Commonwealth , 177 Va. 921, 929, 15 S.E.2d 62 (1941), the trial court explicitly demonstrated that it did not consider the appellant's lack of criminal history, age, and ability to be rehabilitated. As discussed above, because the trial court found as a matter of law and fact that the appellant presented no mitigating circumstances evidence, it undoubtedly did not consider and weigh the relevant factors. Notably, "[t]here is no general requirement that trial courts must state for the record the reasons underlying their decisions." Shannon v. Commonwealth , 289 Va. 203, 206, 768 S.E.2d 433 (2015). Yet, the trial court explained its reasoning, revealing its error of law and failure to consider the relevant factors. As a result, the trial court showed that it erred not only in its legal findings but also in its failure to consider the relevant factors "that should have been given significant weight." Barrow v. Commonwealth , 73 Va. App. 149, 153, 857 S.E.2d 152 (2021).
Overall, the trial court abused its discretion by making an error of law that the appellant did not prove any mitigating circumstances. Accordingly, it also abused its discretion by failing to consider and weigh the appellant's mitigating circumstances, including his lack of criminal history, age, and substantial capacity for rehabilitation. For those reasons, I would reverse and remand the case to allow the trial court to consider the mitigation evidence and weigh the public interest as required by Code § 19.2-303. I respectfully dissent.