Brandon L. Hubbard, s/k/a Brandon Lamonte Hubbard v. Commonwealth ( 2005 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Clements and McClanahan
Argued at Salem, Virginia
BRANDON L. HUBBARD, S/K/A
BRANDON LAMONTE HUBBARD
MEMORANDUM OPINION* BY
v. Record No. 0474-04-3 JUDGE RUDOLPH BUMGARDNER, III
MAY 17, 2005
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
J. Samuel Johnston, Jr., Judge
Mark B. Arthur (Fralin, Feinman, Coates & Kinnier, P.C., on brief),
for appellant.
Deana A. Malek, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
Brandon L. Hubbard appeals the revocation of his suspended sentence. He contends that
he did not willfully violate the terms of probation when he failed to complete the diversion
program. The defendant did not present this claim to the trial court. Accordingly, we dismiss
the appeal.
The defendant pled guilty to distributing cocaine and at his request was approved for an
alternative sentencing program. The trial court sentenced him to twenty years but suspended the
sentence on condition that he “enter and successfully complete the Men’s Adult Detention and
Diversion Center programs.”
The defendant entered the program and passed the medical examination. During the
examination, the defendant told the examiners that he had a history of tachycardia (rapid heart
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
rate) and dyspnea (shortness of breath) and “did not believe he was medically capable of
completing the program.” He was informed that he “was physically capable of completing the
detention center program and he would not be given a medical discharge.”
After three days the defendant requested a medical discharge and voluntarily withdrew
from the program when it was denied. He was returned to the circuit court, and after a show
cause hearing, it revoked his suspended sentence.1 The defendant was granted an appeal on the
question of whether the trial court abused its discretion in finding that he willfully violated his
suspended sentence by failing to complete the diversion and detention center programs due to a
medical condition.
At the show cause hearing, the defendant never argued his probation should not be
revoked. He acknowledged that he voluntarily withdrew from the program knowing he would be
charged with violating probation and would be subject to a twenty-year prison sentence. He
requested the trial court to sentence him in accordance with the guidelines, but never argued that
he left involuntarily because of an unforeseen medical condition. “No ruling of the trial court . . .
will be considered as a basis for reversal unless the objection was stated together with the
grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of
Appeals to attain the ends of justice.” Rule 5A:18.2
1
The trial court found the defendant in violation of the conditions of probation, imposed
the twenty-year sentence, and re-suspended seventeen years for fifteen years.
2
“In order to avail oneself of the exception, a defendant must affirmatively show that a
miscarriage of justice has occurred, not that a miscarriage might have occurred.” Redman v.
Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997). The defendant failed to
request that this Court invoke the exception to the rule. We will not consider such an argument
sua sponte. Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003)
(en banc).
-2-
On brief, the defendant argues “[T]he trial court erred in revoking Hubbard’s suspended
sentence without considering reasonable alternatives to imprisonment due to the unforeseen
consequences of [his] heart condition on his ability to complete his alternative sentencing
program.” That question was neither raised in the trial court nor in his petition for appeal. We
will not address it for the first time on appeal. Rules 5A:12(c), 5A:18.
This Court will not consider arguments raised for the first time on appeal. Ohree v.
Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). According, we dismiss the
appeal.
Dismissed.
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