Derrick Alexander Marks v. Commonwealth of Virginia ( 2022 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Malveaux, Fulton and White
UNPUBLISHED
DERRICK ALEXANDER MARKS
MEMORANDUM OPINION*
v. Record No. 0512-22-4 PER CURIAM
DECEMBER 29, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
James E. Plowman, Jr., Judge
(Paul D. Fore, Senior Trial Attorney; Office of the Public Defender,
on brief), for appellant.
(Jason S. Miyares, Attorney General; Jason D. Reed, Assistant
Attorney General, on brief), for appellee.
Following his guilty pleas, the trial court convicted Derrick Alexander Marks of possession
of a Schedule I or II controlled substance and leaving the scene of an accident. The trial court
sentenced Marks to a total of two years and twelve months’ incarceration. On appeal, Marks argues
that the trial court abused its sentencing discretion. After examining the briefs and record in this
case, the panel unanimously holds that oral argument is unnecessary because “the dispositive issue”
in this appeal has been “authoritatively decided, and the appellant has not argued that the case law
should be overturned, extended, modified, or reversed.” Code § 17.1-403(ii)(b); Rule 5A:27(b).
BACKGROUND
On appeal, we recite the facts “in the ‘light most favorable’ to the Commonwealth, the
prevailing party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022)
(quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so requires us to “discard the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
evidence of the accused in conflict with that of the Commonwealth, and regard as true all the
credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.”
Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).
On January 13, 2022, Marks pleaded guilty to possession of a Schedule I or II controlled
substance and leaving the scene of an accident. Based on his pleas, the trial court found Marks
guilty of both charges. During the sentencing phase at the March 10, 2022 hearing, Marks’s
girlfriend testified that he helped her during her illness, treated her disabled son well, and interacted
with her family often. She stated that Marks was working at a restaurant and she was “trying to
keep him out of trouble.”
Marks argued that he had served approximately forty days on these charges. He recently
had been released from a fourteen-month sentence; he had obtained full-time employment and was
on the “right track.” Marks was cooperative with probation and otherwise was doing well. In
addition, he accepted responsibility and pleaded guilty to the charges. Marks asked the trial court to
sentence him to time served. The Commonwealth argued that even after Marks was arrested on the
instant charges, he committed similar acts in another jurisdiction, incurring similar charges. The
Commonwealth asked the trial court to consider Marks’s criminal history, including those
subsequent charges, and sentence him toward “the high end of the guidelines.”1 In allocution,
Marks expressed his remorse and took full responsibility for his actions.
After considering the evidence and argument by counsel, the trial court sentenced Marks to
serve two years and twelve months’ incarceration. The trial court found that the sentencing
guidelines were inadequate. It noted that Marks had received many opportunities to reform his
1
The discretionary sentencing guidelines recommended an active sentence ranging
between three and six months’ incarceration.
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behavior, so Marks was not a suitable candidate for alternative services, including probation. Marks
appeals.
ANALYSIS
Marks argues that the sentence the trial court imposed represents an abuse of its discretion
because it improperly gave significant weight to his criminal history. Marks asserts that his criminal
record was accounted for when the sentencing guidelines were calculated.
“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)). “[O]nce it is determined that a sentence is within the
limitations set forth in the statute under which it is imposed, appellate review is at an end.”
Thomason v. Commonwealth, 69 Va. App. 89, 99 (2018) (quoting Minh Duy Du, 292 Va. at 565).
“[A] circuit court’s failure to follow the [discretionary sentencing] guidelines is ‘not . . .
reviewable on appeal.’” Fazili v. Commonwealth, 71 Va. App. 239, 248 (2019) (third alteration
in original) (quoting Code § 19.2-298.01(F)). Here, Marks’s sentences were within the
sentencing ranges set by the legislature. See Code §§ 18.2-10, 18.2-11, 18.2-250, 46.2-896,
46.2-900.
To the extent that Marks argues that his sentence was disproportionate, the Court declines
to engage in a proportionality review in cases that do not involve life sentences without the
possibility of parole. Cole v. Commonwealth, 58 Va. App. 642, 654 (2011). We noted in Cole
that the Supreme Court of the United States “has never found a non-life ‘sentence for a term of
years within the limits authorized by statute to be, by itself, a cruel and unusual punishment’ in
violation of the Eighth Amendment.” Id. at 653 (quoting Hutto v. Davis, 454 U.S. 370, 372
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(1982) (per curiam)). Cf. Vasquez v. Commonwealth, 291 Va. 232, 243 (2016) (rejecting Eighth
Amendment challenge to 133-year active sentence because the sentence was imposed for
“eighteen separate crimes”). Thus, we decline to conduct a proportionality review in this
case. Id.Additionally, it was within the trial court’s purview to weigh Marks’s mitigating
evidence. Keselica v. Commonwealth, 34 Va. App. 31, 36 (2000). “Criminal sentencing
decisions are among the most 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. The record
demonstrates that the trial court considered the mitigating evidence and circumstances Marks
presented, including his employment and relationships with his girlfriend and her child.
Balanced against those circumstances, however, was Marks’s continued criminal conduct within
a short time of his release from an earlier period of incarceration, including incurring additional
charges after those at issue here. After considering all the circumstances, the trial court imposed
the sentence that it deemed appropriate. That sentence was “within the statutory range, and our
task is complete.” Thomason, 69 Va. App. at 99.
CONCLUSION
For the foregoing reasons, the trial court’s judgment is affirmed.
Affirmed.
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