Derrick Jubal Powell v. Commonwealth of Virginia ( 2013 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, McCullough and Chafin
UNPUBLISHED
Argued at Salem, Virginia
DERRICK JUBAL POWELL
MEMORANDUM OPINION* BY
v. Record No. 2265-12-3 JUDGE TERESA M. CHAFIN
DECEMBER 17, 2013
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GILES COUNTY
Colin R. Gibb, Judge
James C. Turk, Jr. (Harrison & Turk, P.C., on briefs), for appellant.
Katherine Quinlan Adelfio, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
On November 7, 2012, the Circuit Court of Giles County (“circuit court”) convicted
Derrick Jubal Powell (“appellant”) of breaking and entering, attempted breaking and entering,
and grand larceny in cases it had previously taken under advisement. On appeal, appellant
argues that the circuit court erred by convicting him based on conduct outside of the terms of his
plea agreement.1 As appellant failed to object on this ground before the circuit court, Rule 5A:18
bars our consideration of this issue on appeal.
Rule 5A:18 states that “[n]o 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
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Appellant’s opening brief also included two other assignments of error. Appellant
argued that the circuit court erred by 1) convicting him of charges that had been previously
dismissed, and 2) considering a conviction of driving without an operator’s license as a criminal
offense rather than a civil offense. In his reply brief and at oral argument, however, appellant
requested to withdraw these assignments of error. Accordingly, we do not consider them here.
for good cause shown or to enable the Court of Appeals to attain the ends of justice.” The
purpose of this rule “is to alert the trial judge to possible error so that the judge may consider the
issue intelligently and take any corrective actions necessary to avoid unnecessary appeals,
reversals and mistrials.” Martin v. Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404
(1992) (en banc). “In addition, a specific, contemporaneous objection gives the opposing party
the opportunity to meet the objection at that stage of the proceeding.” Weidman v. Babcock, 241
Va. 40, 44, 400 S.E.2d 164, 167 (1991). Rule 5A:18 applies to all types of cases. See Lee v.
Lee, 12 Va. App. 512, 514, 404 S.E.2d 736, 737 (1991) (en banc).
Appellant was initially charged with breaking and entering and two grand larcenies in
2008. At that time, he entered into a plea agreement with the Commonwealth concerning these
charges. The circuit court accepted the agreement and took the cases under advisement for two
years pursuant to its terms. In 2010, appellant was indicted with another felony attempted
breaking and entering charge. Appellant entered into a new plea agreement incorporating the
new charge and the previous charges. The Commonwealth amended one of the grand larceny
charges to petit larceny, and appellant pled guilty to that charge at that time. The remaining
charges were taken under advisement for two years pursuant to the plea agreement.
During that time, appellant was placed on supervised probation. He was also ordered to
attend a day reporting center for eighteen months and follow any directions from his probation
officer concerning substance abuse treatment. Appellant’s probation officer filed probation
violation letters with the circuit court in 2012 alleging that he had violated the terms of his
probation. Specifically, the violation letters alleged that appellant tested positive for oxycodone,
that he had failed to attend several day reporting sessions, and that he had received a new
conviction for driving without an operator’s license that he failed to report to probation. The
circuit court held a hearing concerning these violations on November 7, 2012. Although the
-2-
circuit court had dismissed three of appellant’s new probation violation charges without a
hearing, the court addressed the facts supporting these violations at the November 7, 2012
hearing while proceeding in appellant’s underlying cases that were still under advisement at that
time.
Although the procedural posture of the present case created some confusion in the circuit
court, appellant never objected to the circuit court’s decision based on the grounds he now raises
in his assignment of error. Appellant never argued that the circuit court should not have
considered the facts supporting his alleged probation violations because his probation violation
charges had been dismissed, or for any other reason. Appellant made no objections when his
probation officer testified concerning the violations.
Moreover, appellant failed to object on the grounds he now advances on appeal at the
conclusion of the circuit court hearing. When the circuit court convicted appellant of the
offenses, he did not make any objections. Appellant did not argue that he had actually complied
with the terms of his plea agreement or of his probation. He also did not argue that the circuit
court had considered inappropriate evidence in reaching its decision. Appellant only asked the
circuit court for mercy, asking it “to possibly consider something other than convicting him on
all three [charges].” When the circuit court declined, appellant made no further objections or
argument. He also failed to file a motion requesting the circuit court to reconsider or vacate the
convictions, or note objections to the circuit court’s final sentencing order.
In the absence of any objections based on the grounds appellant now argues on appeal,
Rule 5A:18 prohibits this Court from considering his arguments. Additionally, appellant has not
asked this Court to invoke the good cause or ends of justice exceptions to Rule 5A:18 to permit
appellate review of these assignments of error, and we decline to do so sua sponte. See Edwards
-3-
v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc). For these
reasons, we affirm the judgment of the circuit court.
Affirmed.
-4-