Breshon Avonte Evins v. Commonwealth of Virginia ( 2022 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Chaney, Raphael and Callins
UNPUBLISHED
BRESHON AVONTE EVINS
MEMORANDUM OPINION*
v. Record No. 0308-22-2 PER CURIAM
DECEMBER 29, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
John Marshall, Judge
(Owen I. Conway; Owen I. Conway, PLLC, on brief), for appellant.
Appellant submitting on brief.
(Jason S. Miyares, Attorney General; Elizabeth Kiernan Fitzgerald,
Assistant Attorney General, on brief), for appellee.
Following his no contest plea, the trial court convicted Breshon Avonte Evins as an
accessory after the fact to first-degree murder; it sentenced him to five years’ incarceration with one
year suspended. On appeal, Evins argues that the trial court abused its discretion in imposing this
sentence. After examining the briefs and record in this case, the panel unanimously holds that oral
argument is unnecessary because “the appeal is wholly without merit.” Code § 17.1-403(ii)(a);
Rule 5A:27(a). The trial court’s judgment is affirmed.
BACKGROUND
Before accepting his no contest plea, the trial court conducted a colloquy with Evins to
ensure it was entered freely and voluntarily. During the colloquy, Evins confirmed that he
understood the nature of the charge and what the Commonwealth would have to prove to convict
him. After discussing the charge with his attorney, he decided to plead no contest because he “did
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
in fact commit the offense as charged.” Evins understood that he could be sentenced to a maximum
of five years’ incarceration. The trial court accepted Evins’s plea, finding that he entered it freely,
voluntarily, and intelligently.
The Commonwealth proffered that in September 2020, Amaru Aruna asked Evins to give
him a gun so that he could kill Joshua Mitrenga. Evins complied, “knowing that the gun was going
to be used against . . . Mitrenga,” and went home. Later, Aruna led Mitrenga into an isolated area
and “shot him four times, killing him.” Immediately after the shooting, Aruna ran to Evins’s house
and gave him the gun. Evins kept the gun “for some time” before returning it to Aruna. Aruna
visited Evins two days after the shooting; as they smoked and discussed the homicide, Evins asked
Aruna if Aruna was “safe.” Evins gave multiple, contradictory versions of his involvement in the
killing to police. In the “final version,” “detectives gleaned from” Evins that he gave Aruna the gun
and, subsequently, heard the shooting as Evins left “the scene.” Police also interviewed Aruna, who
gave a “full confession” but claimed that he had “acted alone” and “no one helped him.” Evins
agreed with the Commonwealth’s proffer, adding only that Aruna instructed him to sell the gun
after the shooting.
Based on Evins’s plea and the proffered evidence, the trial court convicted Evins as an
accessory after the fact to first-degree murder and continued the case for sentencing. At the
sentencing hearing, Mitrenga’s grandmother testified that her family was struggling through “many
stages of grief” and had “not healed.” The trial court also accepted a victim impact statement
written by the Mitrenga family, which described Mitrenga as “an [e]xquisite human being [who]
loved classical music, poetry, [and] philosophy.” Mitrenga’s murder had “shattered” the family; his
relatives were “numb,” “broken,” and “destroyed.”
The Commonwealth asked the trial court to sentence Evins to five years of incarceration. It
argued that Mitrenga’s murder was “senseless” and “another example of young people . . . using
-2-
guns indiscriminately.” The Commonwealth acknowledged that Evins was nineteen years old and
had no criminal record but emphasized the devastating impact of the offense on the Mitrenga
family.
In response, Evins argued that he was a “young man” who had “made a bad decision” but
did not “pull the trigger.” Stressing that he had been convicted only as an accessory after the fact,
Evins asserted that he did not give Aruna the gun before the shooting. He argued that his shifting
story during his police interview was attributable to a misguided desire to protect Aruna, a
sixteen-year-old boy. Evins emphasized that he ultimately was forthcoming with the police and led
them to the killer. Accordingly, he asked the trial court to sentence him to a period of five years’
incarceration, with four years suspended. In allocution, Evins apologized “for what happened to
Joshua Mitrenga” and had “apologized to [Mitrenga’s] family for what happened to him.” Evins
further stated that he was not “there” and assured the trial court that he would not “murder” anyone.
He had been reflecting upon his actions for seven months and was “ready to change virtually
everything” about his life.
The trial court found that, considering all the evidence, it was unknown whether Evins had
given Aruna the gun before the shooting. The trial court also found that it was appropriate to
consider Evins’s youth and lack of a criminal record, noting, “To discount that is not fair in my
eyes.” Despite consideration of those mitigating factors, the trial court found that the case involved
a “senseless killing” and Evins “knew a hundred percent what happened.” Accordingly, it
sentenced him to five years’ incarceration with one year suspended. Evins appeals.
ANALYSIS
“We review the trial court’s sentence for abuse of discretion.” Scott v. Commonwealth,
58 Va. App. 35, 46 (2011). It is well-established that “when a statute prescribes a maximum
imprisonment penalty and the sentence does not exceed that maximum, the sentence will not be
-3-
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). Evins’s sentence was within the range set by the
legislature. See Code §§ 18.2-10, 18.2-19.
Evins argues that the trial court erred by imposing four years of active incarceration. He
argues that his sentence was “excessive” given his youth and lack of criminal record. He
emphasizes that his statements to police “ultimately led to the shooter” and asserts that he “accepted
responsibility” and “should have been given a lesser sentence.” We disagree.
To the extent Evins argues that his sentence was excessive and disproportionate, this 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 (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”). “It lies within the province of the legislature to define
and classify crimes and to determine the punishments for those crimes.” DePriest v.
Commonwealth, 33 Va. App. 754, 764 (2000).
It was within the trial court’s purview to weigh the mitigating evidence Evins presented.
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.
-4-
“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 expressly considered the mitigating evidence Evins cites on
appeal, including his youth, lack of a criminal record, and the information he gave during his
police interview. Balanced against that evidence, however, was Mitrenga’s “senseless” death and
the devastating impact it had on his family. Moreover, despite knowing what Aruna had done,
Evins agreed to keep the gun Aruna used to murder Mitrenga for “some time” immediately after
the shooting. After considering the evidence, the trial court imposed the sentence 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.
-5-