Bradford T. Cellucci v. Commonwealth of Virginia ( 2022 )

VIRGINIA:
In the Court of Appeals of Virginia on Tuesday the 14th day of June, 2022.
Bradford T. Cellucci, Appellant,
against Record No. 0195-21-4
Circuit Court No. CR00031718-00
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing En Banc
Before the Full Court
On May 31, 2022 came the appellee, by the Attorney General of Virginia, and filed a petition
requesting that the Court set aside the judgment rendered herein on May 17, 2022, and grant a rehearing en
banc on the issue(s) raised in the petition.
On consideration whereof and pursuant to Rule 5A:35 of the Rules of the Supreme Court of Virginia,
the petition for rehearing en banc is granted and the appeal of those issues is reinstated on the docket of this
Court. The mandate previously entered herein is stayed pending the decision of the Court en banc.
The parties shall file briefs in compliance with the schedule set forth in Rule 5A:35(b). The appellant
shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously
rendered by the Court in this matter. An electronic version of each brief shall be filed with the Court and
served on opposing counsel.1
A Copy,
Teste:
A. John Vollino, Clerk
original order signed by a deputy clerk of the
By: Court of Appeals of Virginia at the direction
of the Court
Deputy Clerk
1
The guidelines for filing electronic briefs and appendices can be found at
www.courts.state.va.us/online/vaces/resources/guidelines.pdf.
COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judges Ortiz and Causey
UNPUBLISHED
Argued at Fairfax, Virginia
BRADFORD T. CELLUCCI
MEMORANDUM OPINION * BY
v. Record No. 0195-21-4 JUDGE DANIEL E. ORTIZ
MAY 17, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
James P. Fisher, Judge
Catherine French Zagurskie, Chief Appellate Counsel (Virginia
Indigent Defense Commission, on briefs), for appellant.
Rohiniyurie Tashima, John Marshall Fellow (Mark R. Herring,1
Attorney General, on brief), for appellee.
A trial court’s decision to modify a sentence after a horrific crime is a weighty matter.
The decision’s solemn and case-specific nature often requires an appellate court to defer to the
lower court’s judgment. Yet, this Court cannot turn a blind eye to a trial court’s erroneous legal
conclusions and failure to consider all relevant factors when deciding whether to modify a
sentence under Code § 19.2-303. In these rare circumstances, an appellate court must reverse for
the trial court’s abuse of discretion.
Bradford T. Cellucci entered an Alford 2 plea to aggravated malicious wounding after he
attacked his girlfriend’s ex-boyfriend, Bryan Pedroza, with a claw hammer and paralyzed
Pedroza from the chest down. The Loudoun circuit court sentenced Cellucci to life in prison and
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Jason S. Miyares succeeded Mark R. Herring as Attorney General on January 15, 2022.
2
North Carolina v. Alford, 400 U.S. 25 (1970).
a $100,000 fine. Cellucci challenges the circuit court’s denial of his motion to reconsider his
sentence under Code § 19.2-303. Cellucci contends the circuit court abused its discretion in
determining Cellucci failed to prove any circumstances in mitigation, despite evidence
demonstrating Cellucci’s Autism Spectrum Disorder (ASD) diagnosis, lack of criminal history,
and demonstrated ability to be rehabilitated. Further, he contends the circuit court erred by
failing to address whether modifying Cellucci’s sentence was compatible with the public interest
because the original sentence violates the United States Constitution’s Eighth Amendment and
Due Process Clause. Because the circuit court abused its discretion in making the erroneous
legal conclusion that Cellucci failed to prove any mitigating circumstances and in failing to
consider Cellucci’s mitigating circumstances evidence, we reverse the denial of the motion to
reconsider.
BACKGROUND
On July 28, 2015, twenty-three-year-old Cellucci entered the Ralph Lauren Polo Outlet
store in Leesburg where Pedroza worked. Cellucci believed an allegation that Pedroza raped
Cellucci’s girlfriend and had decided to do something about it. Cellucci walked around the store
for nearly twenty minutes until the then eighteen-year-old Pedroza approached him. Cellucci
told Pedroza he wanted to try on a shirt, and Pedroza escorted Cellucci to the fitting rooms.
When Pedroza turned his back to Cellucci, Cellucci punctured Pedroza’s neck with a claw
hammer and ran from the Polo store. Pedroza instantly fell and realized he could not control his
body. After Pedroza arrived at the hospital, doctors determined that his spinal cord was severed
between his C5 and C7 vertebrae.
As a result of the attack, Pedroza is paralyzed from the chest down, cannot walk, and
struggles to write or open and close objects because his hands are in a “constant claw state.” He
experiences “very intense involuntary spasms” that cause his legs to “jump, shake, and stiffen
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up,” and he suffers from nerve pain. He also needs various medicines, medical treatments, and
equipment for daily life. Since the attack, Pedroza suffers from depression and anxiety.
Additionally, due to his injury, Pedroza and his family faced immediate and long-term financial
difficulties.
In early 2020, Cellucci entered an Alford plea of guilty. Approximately eight months
later, Cellucci provided evidence to the circuit court at his sentencing hearing through his
sentencing memorandum, the presentencing investigation report, a forensic psychological
evaluation prepared by Dr. Ina D. Patton, statements from Cellucci’s family, including his wife’s
testimony, and Cellucci’s allocution.
This evidence revealed that Cellucci was diagnosed with ASD at a very young age and
did not speak until he was at least five years old. As a child, he got frustrated easily and had
difficulty understanding social nuances and jokes. He also attended special education classes
and qualified for Individualized Educational Plans. As he grew up, Cellucci struggled with
substance abuse, starting with marijuana use and eventually escalating to heroin and OxyContin
use. He received treatment for substance abuse several times. Despite his struggles with
addiction, he did not have a juvenile or adult criminal record.
In 2015, he began dating a woman, and she told him that Pedroza had raped her. After
learning about the rape allegation, Cellucci tried to ignore it but instead fixated on and obsessed
about the alleged rape. He told the woman that Pedroza should face consequences. In the
months leading up to the attack, Cellucci continued to abuse drugs, and his behavior became
more erratic and agitated. Several weeks before the attack, he decided to “act on this twisted
fantasy” to make Pedroza pay.
Nine days after the attack, Cellucci flew to Honduras where he kept abusing various
prescription drugs. When he returned to the United States about five months later, he moved in
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with his now-wife, Jennifer Cellucci (Jennifer), and her family. While living with Jennifer’s
family, Cellucci became a Christian, started going to church, and then stopped abusing drugs.
Four months later, Cellucci and Jennifer married, and their daughter was born less than a year
later. Cellucci also started working and attending school part-time.
Dr. Patton interviewed Cellucci and concluded that Cellucci met the DSM-5 criteria for
an ASD diagnosis based on his history, tests, and behavior during the interview. She observed
that Cellucci had adopted certain behaviors “to distract from socially awkward behavior or
misunderstood social cues” and that he had limited facial and emotional reactions throughout the
interview. Dr. Patton also noted that Cellucci “may mask his frustration with impulsivity” to
avoid dealing with his emotions and may struggle to link “his thoughts and feelings with his
behavior and their consequences.” Dr. Patton concluded that a combination of Cellucci’s
difficulty empathizing with others, substance abuse, and failure to take psychiatric medications
created a “perfect storm.”
After reviewing all the evidence, the circuit court imposed the statutory maximum of a
life sentence and a $100,000 fine, despite the sentencing guidelines recommending a range
between five years and eight months and twelve years and eight months’ incarceration. The
circuit court deviated up from the sentencing guidelines because it felt the guidelines
insufficiently addressed the grievousness of Pedroza’s injury and Cellucci’s “level of
planning/premeditation.” The circuit court conceded that a combination of ASD and substance
abuse may have played a role but decided that the ASD diagnosis “pale[d] in comparison” to the
“blow to civil society.”
Cellucci moved to reconsider the sentence. He pointed to his sentencing memorandum,
the presentencing report, and evidence and argument at the sentencing hearing to generally argue
that he presented circumstances in mitigation; however, he did not specifically identify those
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circumstances. Further, Cellucci argued modifying his sentence was compatible with the public
interest because the sentence violated his due process rights and was cruel and unusual
punishment under the Eighth Amendment, partly due to his ASD.
The circuit court denied the motion to reconsider (the denial order), focusing solely on
whether Cellucci’s ASD was a mitigating circumstance. It reasoned Cellucci “has not presented
sufficient evidence to establish . . . that he now, or at the time of the offense, suffers from ASD.”
Alternatively, the circuit court determined that even if Cellucci had ASD, the diagnosis did not
qualify as a mitigating circumstance under Wilson v. Commonwealth, 54 Va. App. 631 (2009),
and had no logical nexus to the offense. The circuit court characterized Cellucci’s ASD evidence
as a “dying ember,” “vacant, wanting of substance, and only now being emphasized as a
post-hearing ‘hail Mary.’” It concluded that, after considering all the evidence, “as a matter of
fact and law that [Cellucci] . . . failed to prove any circumstance in mitigation of his offense.”
Because it found no mitigating circumstances, the circuit court declined to address whether a
sentence modification was compatible with the public interest.
ANALYSIS
On the motion to reconsider, the circuit court was required to review all the evidence
Cellucci presented and identify any mitigating circumstances. However, the circuit court
overlooked Cellucci’s lack of criminal history, both before and after the crime, ability to be
rehabilitated, and age as mitigating circumstances. In erroneously concluding that Cellucci
proved no mitigating circumstances evidence, the circuit court also failed to consider these
relevant factors that should have been given significant weight. Thus, the circuit court abused its
discretion in concluding that Cellucci failed to prove any mitigating circumstances.
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I. Standard of Review
We review a denial of a motion to reconsider a prior ruling for an abuse of discretion.
See Thomas v. Commonwealth, 62 Va. App. 104, 109 (2013). “A trial court ‘“by definition
abuses its discretion when it makes an error of law.”’” Commonwealth v. Greer, 63 Va. App.
561, 568 (2014) (quoting Porter v. Commonwealth, 276 Va. 203, 260 (2008)). Further,
[a] court abuses its discretion: “when a relevant factor that should
have been given significant weight is not considered; when an
irrelevant or improper factor is considered and given significant
weight; and when all proper factors, and no improper ones, are
considered, but the court, in weighing those factors, commits a
clear error of judgment.”
Barrow v. Commonwealth, 73 Va. App. 149, 153 (2021) (quoting Lawlor v. Commonwealth, 285
Va. 187, 213 (2013)).
II. The Circuit Court’s Mitigating Circumstances Decision
In this case, the circuit court failed to consider all of the evidence on the motion to
reconsider, and thus, did not comply with the procedural requirements of Code § 19.2-303.
Moreover, the circuit court made an error of law in concluding Cellucci had failed to prove
mitigating circumstances and erred in failing to consider those mitigating circumstances.
A. Minh Duy Du v. Commonwealth, 292 Va. 555 (2016), does not apply in this case.
At the outset, we must address the Commonwealth’s contention that Minh Duy Du v.
Commonwealth, 292 Va. 555 (2016), precludes this Court’s review of Cellucci’s sentence.
Under Minh Duy Du, when a sentence does not exceed the statutory maximum, we will not
overturn the sentence as an abuse of discretion, and our “review is at an end.” Id. at 564-65
(quoting Dorszynski v. United States, 418 U.S. 424, 431 (1974)). However, this case’s
procedural posture obviates Minh Duy Du’s application. Before us is the question of whether the
circuit court abused its discretion in reviewing the Code § 19.2-303 factors, a statutory
procedural requirement, not the substantive question of whether the circuit court abused its
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discretion by sentencing Cellucci to life plus a $100,000 fine. Minh Duy Du’s reasonableness
test would only apply in this case once we concluded the trial court complied with the Code
§ 19.2-303 statutory procedures. Thus, confined to the narrow question at hand, Minh Duy Du
does not control this case’s outcome.
B. The circuit court abused its discretion regarding Cellucci’s mitigating circumstances
evidence.
Under Code § 19.2-303, a trial court may modify the unserved portion of a felon’s
sentence any time before the felon is transferred to the Department of Corrections “if it appears
compatible with the public interest and there are circumstances in mitigation of the offense.”
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 (1993) (quoting Correll v. Commonwealth, 232 Va.
454, 468-69 (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,
54 Va. App. at 642. 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 (alteration in original) (quoting Commonwealth v. Shifflett, 257 Va. 34, 44
(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
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(6) the defendant’s subaverage intellectual function. Id. at 641-42 (quoting Code § 19.2-264.4) 3;
see also Murphy, 246 Va. at 141-42 (dismissing a defendant’s contentions that the trial court did
not consider mitigating circumstances because the trial court listed the mitigating factors it
considered).
Additionally, as a general principle, “[a] court speaks through its orders,” and those
orders are presumed correct unless “evidence in the record clearly establishes that the court had a
different intent.” See McBride v. Commonwealth, 24 Va. App. 30, 35-36 (1997); Mack v.
Commonwealth, 177 Va. 921, 929 (1941) (noting that a court’s order is generally presumed
correct, “and he who asserts the contrary is required to overcome the presumption by record
proof”). In fact, the Virginia Supreme Court has presumed that a trial court “considered the
relevant factors without giving significant weight to any irrelevant improper factor” when the
parties argued the relevant factors to the court. Manchester Oaks Homeowners Ass’n v. Batt, 284
Va. 409, 430 (2012). However, a trial judge “may not arbitrarily or without justification
discredit evidence which is uncontradicted and not inconsistent with other evidence in the case.”
Bolden v. Commonwealth, 263 Va. 465, 472 n.3 (2002) (quoting Chesson v. Commonwealth, 216
Va. 827, 832 (1976)).
1. The circuit court made an error of law when it concluded Cellucci presented no
mitigating circumstances evidence.
Even viewing the evidence in the light most favorable to the Commonwealth, 4 Cellucci
presented uncontradicted mitigating circumstances evidence at the sentencing hearing, including
his sentencing memorandum, the pre-sentencing report, and argument. Prior to his arrest,
3
The General Assembly repealed Code § 19.2-264.4 in 2021 when it abolished the death
penalty; however, the mitigating circumstances factors remain relevant to our analysis.
4
On appeal, “we consider the evidence presented at trial in the light most favorable to . . .
the prevailing party below.” Bolden v. Commonwealth, 275 Va. 144, 148 (2008).
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Cellucci had no criminal record. Further, in the two and a half years between the attack and his
arrest, Cellucci stopped abusing drugs, became involved in a church community, maintained a
stable homelife, raised his daughter, worked to support his family, attended school, and did not
incur further criminal charges. These changes demonstrate his ability to be rehabilitated.
Moreover, Cellucci was only twenty-three when he committed the crime. Thus, Cellucci
demonstrated three different circumstances in mitigation of his offense.
In denying Cellucci’s motion to reconsider, the circuit court exclusively considered
Cellucci’s ASD as his mitigating circumstance. Although, as discussed below, we conclude that
the circuit court abused its discretion in considering Cellucci’s mitigating circumstances
evidence, we hold that it did not abuse its discretion in finding that Cellucci failed to prove ASD
as a mitigating circumstance. The circuit court considered the forensic psychological evaluation
and determined that Cellucci did not have ASD at the time of the offense 5 and even if he did, his
ASD did not have “a nexus” to the crime. Having considered the report, the circuit court did not
abuse its discretion in concluding that Cellucci failed to prove that his ASD explained his crime.
While the circuit court considered Cellucci’s ASD evidence, it then proceeded to ignore
the uncontradicted mitigating circumstances evidence it had previously considered and accepted.
The circuit court reiterated that at the sentencing hearing it had considered all the mitigating
circumstances and noted that Cellucci failed to specify mitigating circumstances other than his
ASD in his motion to reconsider. Yet, Cellucci generally referenced the sentencing hearing
evidence to show mitigating circumstances, even though his brief in support of the motion to
reconsider focused on his ASD diagnosis as it related to the public interest factor. In fact,
5
We decline to decide whether the circuit court correctly determined that Cellucci failed
to prove that he has ASD at all or at the time of the offense. Yet, the forensic psychological
evaluation suggests a diagnosis from an early age and an ongoing and lifelong condition based
upon its description of Cellucci’s past and present symptoms.
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Cellucci referred the circuit court to the very mitigating circumstances evidence the circuit court
previously relied on in the sentencing hearing.
During the sentencing hearing, the circuit court stated that it factored Cellucci’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 (2019), the circuit court found and
considered at least some mitigating circumstances evidence at the sentencing hearing. However,
on the motion to reconsider, the circuit court did not incorporate its prior sentencing ruling or
order into the denial order and instead explained that it came to its conclusion “[f]or the reasons
set forth below.” It then concluded “as a matter of fact and law” that Cellucci did not prove any
mitigating circumstances. If the circuit court could not identify the specific mitigating
circumstances Cellucci’s motion referred to, it could have scheduled a hearing to properly
address the motion before it.
Therefore, and because it decided not to hear the motion, the only evidence in the record
about the circuit court’s intent on the motion to reconsider is the circuit court’s denial order.
Evidently, between the sentencing hearing and the motion to reconsider, the circuit court
changed its decision about whether Cellucci had demonstrated mitigating circumstances
evidence. The circuit court further demonstrated that it changed its decision about whether
Cellucci proved any mitigating circumstances by declining to consider the public interest factor
under Code § 19.2-303. By doing so, the circuit court confirmed that it found absolutely no
circumstances in mitigation, not solely that Cellucci’s ASD diagnosis was not a mitigating
circumstance. 6
6
We agree with the dissent 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
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In short, the circuit court could not arbitrarily discredit uncontradicted evidence of
Cellucci’s lack of criminal history, age, and ability to be rehabilitated. Though Wilson, 54
Va. App. at 641-42, only specifically includes lack of criminal history and age as mitigating
circumstances, trial courts should consider a defendant’s ability to be rehabilitated.
Consequently, the circuit court made a clear error of law when it found as a matter of law that
these two circumstances were not mitigating.
2. The circuit court abused its discretion when it failed to consider Cellucci’s
mitigating circumstances evidence.
Moreover, although we would normally presume that the circuit court correctly weighed
the Code § 19.2-303 factors, see Mack, 177 Va. at 929, the circuit explicitly demonstrated that it
did not consider Cellucci’s lack of criminal history, age, and ability to be rehabilitated. As
(quoting Yarborough v. Commonwealth, 217 Va. 971, 978 (1977)). Moreover, we also concur
that we must review an order within its entire context. Id. (quoting Yarborough, 217 Va. at 978).
Where we differ from the dissent is in how we apply these principles to this case. In spite of the
requisite presumptions and inferences given to a trial court’s order, 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 circuit court’s order that the dissent can rely on to conclude
that the circuit court considered all the mitigating circumstances is its general statement that it
considered all of the evidence Cellucci 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 circuit court’s express language and the order’s context sufficiently contradict the
presumption.
First, the circuit court expressly held that Cellucci “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 (1996). We cannot restrict the word “any” to mean only
evidence relating to Cellucci’s ASD. To do so would render the word “any” meaningless.
Further, the order’s context shows that the circuit court only considered the ASD and not any
other mitigating circumstances. Unlike in its sentencing decision, where the circuit court
considered aggravating factors when it deviated up from the guidelines, Code § 19.2-303 did not
direct the circuit 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 dissent suggests, the circuit court found and considered the three mitigating
circumstances Cellucci presented, it would have had to review the public interest factor as
required by Code § 19.2-303. By failing to do so, the circuit court provided contextual clues that
it found no mitigating circumstances.
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discussed above, because the circuit court found as a matter of law and fact that Cellucci
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
(2015). 7 Yet, the circuit court explained its reasoning, revealing its error of law and failure to
consider the relevant factors. As a result, the circuit 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, 73 Va. App. at 153.
Overall, the circuit court abused its discretion by making an error of law that Cellucci did
not prove any mitigating circumstances. Accordingly, it also abused its discretion by failing to
consider and weigh Cellucci’s mitigating circumstances, including his lack of criminal history,
age, and substantial capacity for rehabilitation. Lastly, we decline to address the public interest
factor. As a result, we reverse and remand for the circuit court to review and consider Cellucci’s
mitigating circumstances evidence and the public interest factor. 8
7
While a trial court need not always explain its reasoning for a particular ruling, a
detailed ruling assists appellate courts in reviewing whether a trial court properly analyzed an
issue.
8
In this type of case, the best practice would be to remand the motion to reconsider the
sentencing modification decision to a different judge. The rationale behind remanding to a
different judge takes root in the deeply personal nature of sentencing and the concerns about the
appearance of fairness. Criminal sentencing “involves a complex interplay of factfinding,
prediction, and moral judgment culminating in the awesome responsibility of deciding exactly
how long another human being will be deprived of his liberty.” Toby J. Heytens, Reassignment,
66 Stan. L. Rev. 1, 49 (2014). In fact, “[c]riminal sentencing decisions are among the most
difficult judgment calls trial judges face.” Minh Duy Du, 292 Va. at 563. Thus, the nature and
requirements of resentencing can make it “particularly difficult . . . to reconsider one’s own
previous decisions.” Heytens, supra, at 49. Moreover, some courts may reassign a case to avoid
even a slight appearance of impropriety or unfairness. Id. at 49 n.234 (citing United States v.
Figueroa, 622 F.3d 739, 745 (7th Cir. 2010) (Evans, J., concurring) (concurring with
reassignment because the defendant “[wa]s entitled, procedurally, to a cleaner hearing than the
one he got” after the trial judge made “extraneous and inflammatory comments”). It also
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CONCLUSION
We do not undermine the seriousness of Cellucci’s crime. Yet, in reviewing Cellucci’s
motion to reconsider, the circuit court erroneously concluded no mitigating circumstances
existed and consequently failed to consider all mitigating circumstances evidence. Thus, we
hold the circuit court abused its discretion in finding that Cellucci presented no mitigating
circumstances evidence and in failing to consider Cellucci’s lack of criminal history, ability to be
rehabilitated, and age. Therefore, we reverse and remand.
Reversed and remanded.
alleviates pressure on the circuit court because it cannot be accused of either “stubbornly
adhering to [its] original position” or “simply cav[ing] to appellate pressure.” Id. at 31.
This approach aligns with the Fourth Circuit’s approach to reassigning cases on remand.
The Fourth Circuit looks to whether the (1) original judge can put aside his “previously
expressed views or findings determined to be erroneous or based on evidence that must be
rejected,” (2) reassignment will “preserve the appearance of justice,” and (3) reassignment would
cause disproportionate waste and duplication to any value in maintaining an appearance of
fairness. Steves & Sons, Inc. v. JELD-WEN, Inc., 988 F.3d 690, 728-29 (4th Cir. 2021).
Because of the circuit court’s necessary involvement with this case’s facts, it may have
difficulty reconsidering its own decision that no mitigating circumstances existed, despite the
clear record in this case. Therefore, the circuit court should consider reassigning the case to a
different judge.
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Decker, C.J., dissenting.
The majority concludes that the trial court erroneously found that the appellant proved no
circumstances in mitigation of his crime and as such abused its discretion. I disagree with this
interpretation of the order denying the motion to reconsider under Code § 19.2-303, and
therefore I respectfully dissent. 9
Code § 19.2-303 permits a court to modify the sentence of a convicted felon who has not
yet been transferred to the Department of Corrections if “there are circumstances in mitigation of
the offense” and modification “appears compatible with the public interest.” The burden to
prove these elements falls on the defendant. Harris v. Commonwealth, 57 Va. App. 205, 212
(2010). The trial court’s decision is reviewed for an abuse of discretion. See Thomas v.
Commonwealth, 62 Va. App. 104, 109 (2013). A 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. Minh Duy Du v.
Commonwealth, 292 Va. 555, 564-65 (2016); Barrow v. Commonwealth, 73 Va. App. 149, 153
(2021).
In his motion to reconsider his sentence, the appellant argued that “there are
circumstances in mitigation of the offense.” He specifically references his “Sentencing
Memorandum, the pre-sentencing report, and evidence and argument at [his] sentencing
9
In addition, I disagree with the majority’s inclusion of footnote eight suggesting that the
trial court reassign the case on remand. This Court does not comment on a judicial circuit’s
administrative handling of a case unless we are called on to review such a decision as a matter of
law. See Ferrara v. Commonwealth, 299 Va. 438, 447 (2021) (recognizing the “control
necessarily vested in courts to manage their own affairs so as to achieve the orderly and
expeditious disposition of cases” (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 630-31
(1962))), cert. denied, 142 S. Ct. 814 (2022); Yarbrough v. Commonwealth, 258 Va. 347, 361
(1999) (noting a trial court’s inherent authority to administer cases on its docket). We were not
asked to do so here and should not provide an advisory opinion.
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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.
When denying the motion to reconsider 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 reconsideration, and his brief in support of
that motion. The court noted that the motion neglected to specify the mitigating circumstances
that the appellant believed supported reconsideration of his sentence. However, it inferred,
based on the appellant’s brief, that his argument was that “the dispositive circumstance in
mitigation of his offense” was his ASD diagnosis. Also, the trial court found that the appellant’s
evidence that he had ASD “had minimal probative value.” In fact, the court found that the
appellant did not prove that he had ASD at the time of the offense. The trial court 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 reading the order as a whole in light of the applicable standard of review, I conclude
that it does not compel a finding that the court disregarded the other evidence highlighted by the
appellant as mitigating. It is true that the trial court’s single statement that the appellant “failed
to prove any circumstance in mitigation of his offense,” without more, might be viewed as
implying that it neglected to consider the undisputed evidence of his age, his lack of prior
criminal convictions, and his argument that he had shown his ability to be rehabilitated. 10 See
generally Wilson v. Commonwealth, 54 Va. App. 631, 641-42 (2009) (explaining that the
defendant’s age and absence of a previous criminal record may constitute evidence of mitigating
10
To support his argument that he is amenable to rehabilitation, the appellant points to
the almost three years that passed between his flight following the offense and his indictment,
noting that during that time he became a productive member of society.
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circumstances as contemplated by Code § 19.2-303). However, 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 (2018) (quoting Yarborough v. Commonwealth,
217 Va. 971, 978 (1977)) (applying this principle in the context of reviewing a letter opinion);
see also Duggins v. Commonwealth, 59 Va. App. 785, 789 n.2 (2012) (citing the principle that
this Court presumes that trial courts know and correctly apply the law). Although a court speaks
through its written orders, Roe v. Commonwealth, 271 Va. 453, 457 (2006), a reviewing court
should read those orders in context, Coward, 295 Va. at 363 n.11.
In ruling on the motion to reconsider under Code § 19.2-303, the trial court expressly
stated that it considered the presentence report and the arguments at sentencing, which addressed
the appellant’s age and lack of criminal convictions, as well as his assertion that he had been
rehabilitated. The appellant argues on appeal that his evidence of these factors proved mitigating
circumstances. Mitigating circumstances “tend to lessen an accused’s moral culpability for the
crime committed.” Wilson, 54 Va. App. at 642. Whether a certain fact, such as a defendant’s
youth, tends to lessen his moral culpability depends on the particular circumstances of each case.
Here, I do not believe that in making this discretionary determination, the trial court was
obligated to find that the evidence highlighted by the appellant mitigated his crime. Viewing the
order in its entirety and under the proper standard, I 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. 11 See generally Henderson v. Commonwealth, 285 Va. 318,
326 (2013) (inferring a trial court’s finding based on its ruling); Groves v. Commonwealth, 50
11
Once the trial court found that the appellant had failed to prove any circumstances in
mitigation of his offense, it did not need to address the second statutory requirement concerning
the public interest. See Code § 19.2-303.
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Va. App. 57, 61-62 (2007) (noting that a “judge is presumed to know the law and to apply it
correctly in each case” (quoting Crest v. Commonwealth, 40 Va. App. 165, 172 n.3 (2003))).
Having rejected the majority’s premise that the trial court concluded that the appellant
failed to present any mitigating evidence at all, I also conclude that the court did not abuse its
discretion as a matter of law by denying the motion to reconsider the appellant’s sentence.
The Supreme Court of Virginia has made clear that “when 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, 292 Va. at 564 (quoting
Alston v. Commonwealth, 274 Va. 759, 771-72 (2007)). This concept is not new. In fact, it is
well established in Virginia law. 12 The appellant’s sentence was within the permissible statutory
range. 13 See Code §§ 18.2-10(b), -51.2(A). Consequently, I do not believe that the trial court
abused its discretion in denying the appellant’s motion to reconsider his sentence. See Lawlor v.
Commonwealth, 285 Va. 187, 212-13 (2013) (“[W]hen a decision is discretionary . . . the court
12
In Minh Duy Du, 292 Va. at 562, the defendant appealed after the trial court imposed
his sentence and denied his motion to reconsider filed in compliance with Rule 1:1. I conclude
that the holding in Minh Duy Du applies to our review in this case. As noted, I disagree that the
record indicates that the court failed to consider evidence of mitigating circumstances. The
majority concludes that Minh Duy Du does not apply to the preliminary question of whether the
court considered the requisite factors under the statute. However, it concedes that Minh Duy Du
applies generally to a review of a trial court’s substantive ruling on a motion under Code
§ 19.2-303 for a sentence modification after the period in Rule 1:1 has expired.
I recognize that the appellant argues that Minh Duy Du and the related decision in Alston
v. Commonwealth, 274 Va. 759 (2007), should not prevent substantive review of his sentence.
He suggests that these cases erroneously interpret Abdo v. Commonwealth, 218 Va. 473 (1977).
However, even if this Court disagreed with Supreme Court precedent, we are not in a position to
overrule either Minh Duy Du or Alston. We are “bound by decisions of the Supreme Court of
Virginia.” Vay v. Commonwealth, 67 Va. App. 236, 258 n.6 (2017).
13
In fact, the appellant has already challenged his sentence in a direct appeal. This Court
denied his petition on the ground that the sentence was within the statutory range. Cellucci v.
Commonwealth, No. 1088-20-4 (Va. Ct. App. Apr. 9, 2021). While that appeal was pending, the
appellant filed the instant motion under Code § 19.2-303 in the trial court.
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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.” (second and third alterations in original)).
Even if I were to accept the proposition that this principle does not apply here to preclude
substantive review of the order denying the motion to reconsider the appellant’s sentence, I
would still conclude that this case requires affirmance. The appellant argues that the trial court
erred by finding that he failed to prove that he had ASD at the time of the offense and concluding
that he established no nexus between his purported ASD and his crime. He essentially contends
that the evidence compelled the findings that he had ASD and that it “explain[ed]” his offense.
This is not the law in Virginia, and the facts belie this conclusion. “Criminal sentencing
decisions . . . 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.” Min Duy Du, 292 Va. at 563; see also Code § 19.2-303
(permitting “the court that heard the case” to consider the defendant’s motion to modify the
unserved portion of his sentence). The standard of review for the trial court’s factual findings is
whether they were plainly wrong or without evidence to support them. See Vandyke v.
Commonwealth, 71 Va. App. 723, 729 (2020). The question for an appellate court is not whether
it would have made the same findings.
The clinician who prepared the psychological evaluation in evidence opined that the
appellant “meets [the] criteria for a diagnosis of” ASD. Nonetheless, the trial court, considering
the entire report, found that the appellant did not prove that he had ASD at the time of the
offense. 14 The court also concluded, in the alternative, that the opinion expressed in the report
14
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 the report, the
court opined that it was “unsurprising that the evaluator could only diagnose the [appellant] with
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that the appellant’s ASD “may have played” a “role . . . lead[ing] to the offense” did not prove
that his purported condition explained his crime. (Emphasis added). These factual findings are
not plainly wrong or without evidence to support them. Consequently, the court was under no
obligation to make the factual findings proposed by the appellant and did not abuse its discretion
by declining to do so.
I believe that the record, viewed under the proper standard, establishes that the trial court
considered the evidence of mitigating circumstances as required by Code § 19.2-303. Further,
regardless of how I might have viewed the evidence if sitting as the factfinder, I conclude that
the record supports the trial court’s factual findings that the appellant did not establish that he
had ASD at the time of the offense or that the condition explained his crime. For these reasons, I
would hold that the trial court did not abuse its discretion and accordingly would affirm the
decision.
ASD ‘by history’ rather than ‘currently.’” The court further noted that the ASD diagnosis was
“undermin[ed]” by the clinician’s 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.”
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