Kevin Orlando Bowles v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Beales, Huff and Chaney
Argued at Norfolk, Virginia
KEVIN ORLANDO BOWLES
MEMORANDUM OPINION* BY
v. Record No. 1355-22-1 JUDGE VERNIDA R. CHANEY
AUGUST 15, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND
COUNTY OF JAMES CITY
Holly B. Smith, Judge1
(Charles E. Haden, on brief), for appellant. Appellant submitting
on brief.
David A. Mick, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
Following his guilty pleas, the trial court convicted Kevin Orlando Bowles of possession of
a Schedule I controlled substance and driving under the influence, third or subsequent offense
within five years. The trial court sentenced Bowles to a total of ten years of incarceration with eight
years and five months suspended. On appeal, Bowles challenges the voluntariness of his guilty
pleas and argues that the sentence the trial court imposed represents an abuse of its sentencing
discretion. Finding no error in the trial court’s judgment, this Court affirms Bowles’s convictions.
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)
*
This opinion is not designated for publication. See Code § 17.1-413(A).
1
The Honorable Charles J. Maxfield, judge designate, presided over Bowles’s guilty
plea.
(quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). This Court “discard[s] the evidence of
the accused in conflict with that of the Commonwealth, and regard[s] 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)).
Before accepting Bowles’s guilty pleas, the trial court conducted a colloquy with him to
ensure that his pleas were entered freely and voluntarily. During the colloquy, Bowles confirmed
that he had spoken with his attorney and fully understood what the Commonwealth needed to prove
for a conviction. Bowles understood that by pleading guilty he was waiving his rights to a trial by
jury, to confront the witnesses against him, and to appeal certain decisions of the court. Bowles
confirmed that he was pleading guilty “freely and voluntarily” and that no one had forced him to
enter his pleas. R. 108-10. Bowles understood that the driving charge carried a six-month
mandatory minimum term of incarceration and that the trial court could sentence him to a total
maximum of 15 years of incarceration. Bowles also understood that the trial court was not bound
by the discretionary sentencing guidelines.
The Commonwealth proffered that on August 13, 2021, shortly before midnight, James City
County emergency dispatch received a call regarding a driver weaving in the lane, crossing marked
lines, and braking erratically. After describing the car and providing the tag number, the caller
indicated to police that the car had parked at a local hotel. When an officer arrived and noted a car
matching the caller’s description, Bowles, the driver, stepped out of the car. Bowles’s mother and
two minor daughters were also in the car. Police determined that Bowles’s driver’s license was
revoked for a prior conviction for driving under the influence. Bowles was described as “unsteady
on his feet” with “bloodshot eyes” and smelled of alcohol. R. 115. Bowles performed field sobriety
tests, though he was unable to follow directions, struggled with his balance, and displayed a lack of
coordination. The officer searched Bowles incident to his arrest for driving under the influence and
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found a rock-like substance that ultimately tested positive for Eutylone. An analysis of Bowles’s
blood performed by the Department of Forensic Science (DFS) showed a blood alcohol
concentration of 0.116%. The Commonwealth entered three documents into evidence: the DFS
certificate indicating the rock-like substance contained Eutylone, the DFS certificate showing
Bowles’s blood alcohol content, and Bowles’s driving transcript.
The trial court accepted Bowles’s pleas, making a finding that they were freely, intelligently,
and voluntarily made with an understanding of the nature of the charges and the consequences of
the pleas. Based on the pleas and the proffered evidence, the trial court convicted Bowles of
possession of a Schedule I controlled substance and driving under the influence, third or subsequent
offense within five years. 2
At the sentencing hearing, Bowles testified on his own behalf. He reported the mental
health counseling that he had been engaged in since his 2016 schizophrenia diagnosis. Bowles
noted that he had attended—and successfully completed—both an inpatient program and a virtual
outpatient program. Bowles entered three letters into evidence: one from his inpatient program, one
from his outpatient program, and one from his case manager. Bowles told the court that he had
been sober for a year and had provided exclusively negative urine screens while on pretrial
supervision. Bowles further testified that he cares for his disabled mother and has a relationship
with his five children. Bowles had permanent supportive housing provided through a grant and had
been assured that he could get a job with a local grocery store.
Bowles argued that the trial court should sentence him to an alternative disposition, such as
house arrest. In support of this argument, Bowles noted his mental health issues, his ongoing
sobriety, and the support system he had put in place. The Commonwealth argued that the trial court
2
In exchange for his pleas, the Commonwealth moved to nolle prosequi additional
charges of driving with a revoked driver’s license and two counts of felony child abuse.
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should impose a sentence at the midpoint of the discretionary sentencing guidelines. 3 The
Commonwealth contended that Bowles’s answers on the presentence report showed a refusal to take
responsibility for his crimes. Moreover, Bowles’s history of drug offenses was inconsistent with his
statements denying a drug or alcohol problem.
The trial court found the facts to be serious and stated that “the fact that [Bowles did]n’t
really necessarily agree that [he] committed an offense” was “something . . . to consider.” R. 154.
The trial court further noted the fact that Bowles had a “lengthy history of substance abuse” and was
on supervision at the time of these offenses. R. 154. On the other hand, the trial court found
mitigating that “there’s been some good progress recently with [Bowles’s] counselors.” R. 155.
The trial court commended Bowles’s steady housing and noted that the letters received in evidence
showed that Bowles was “compliant with” the rehabilitation programs and further found Bowles’s
attendance of sober support meetings and treatment mitigating. R. 155. Accordingly, the trial court
sentenced Bowles to one year and seven months of active incarceration. He appeals.
ANALYSIS
I. Guilty Pleas
Bowles argues that the trial court erred by accepting his guilty pleas because he did not enter
them freely and voluntarily. He argues that “the record failed to establish” that he “was given notice
of the elements of [the offenses]” or “what the Commonwealth must prove before [he] could be”
convicted. Op. Br. 12. He also argues that he was not “made aware of the various collateral
consequences of his pleas of guilty,” including the loss of his rights to vote and possess a firearm
and disqualification of certain public benefits and occupational licenses. Op. Br. 14. Relying on
Padilla v. Kentucky, 559 U.S. 356 (2010), Bowles suggests that the failure to advise him of those
3
The discretionary sentencing guidelines recommended a total sentence between one
year and seven months’ incarceration and three years and four months’ incarceration, with a
midpoint of two years and ten months.
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collateral consequences rendered his pleas invalid. Bowles acknowledges that he did not move to
withdraw his guilty pleas or otherwise preserve his argument for appellate review but asks that we
address it under the “good cause” and “ends of justice” exceptions to Rule 5A:18.4
‘“Good cause’ relates to the reason why an objection was not stated at the time of the
ruling.” Pope v. Commonwealth, 60 Va. App. 486, 508 (2012) (quoting Campbell v.
Commonwealth, 14 Va. App. 988, 996 (1992) (en banc)). “The Court may only invoke the ‘good
cause’ exception where an appellant did not have the opportunity to object to a ruling in the trial
court; however, when an appellant ‘had the opportunity to object but elected not to do so,’ the
exception does not apply.” Perry v. Commonwealth, 58 Va. App. 655, 667 (2011) (emphasis
added) (quoting Luck v. Commonwealth, 32 Va. App. 827, 834 (2000)).
The trial court accepted Bowles’s guilty pleas on March 7, 2022 and entered final
judgment on August 18, 2022. Thus, Bowles had over five months to move to withdraw his
guilty pleas but failed to do so. Code § 19.2-296 (providing that a trial court, “to correct
manifest injustice, the court within twenty-one days after entry of a final order may set aside the
judgment of conviction and permit the defendant to withdraw his plea”). Nothing in the record
suggests that anything prevented Bowles from filing such a motion. Accordingly, the good cause
exception does not apply because there was ample opportunity for Bowles to alert the trial court
of the relief he sought. Moreover, there were valid strategic reasons for not doing so considering
the charges the Commonwealth moved to nolle prosequi in exchange for Bowles’s pleas.
Combined, those charges presented a potential sentencing exposure of an additional 10 years and
12 months. See Code §§ 18.2-10, 18.2-11, 18.2-272, 18.2-371.1(B).
4
“No 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 for good cause
shown or to enable this Court to attain the ends of justice.” Rule 5A:18.
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“The ‘ends of justice’ exception to Rule 5A:18 is ‘narrow and is to be used sparingly.’”
Melick v. Commonwealth, 69 Va. App. 122, 146 (2018) (quoting Pearce v. Commonwealth, 53
Va. App. 113, 123 (2008)). Whether to apply the ends of justice exception involves two
questions: “(1) whether there is error as contended by the appellant; and (2) whether the failure
to apply the ends of justice provision would result in a grave injustice.” Commonwealth v. Bass,
292 Va. 19, 27 (2016) (quoting Gheorghiu v. Commonwealth, 280 Va. 678, 689 (2010)). “The
burden of establishing a manifest injustice is a heavy one, and it rests with the appellant.” Holt
v. Commonwealth, 66 Va. App. 199, 210 (2016) (en banc) (quoting Brittle v. Commonwealth, 54
Va. App. 505, 514 (2009)). “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.” Melick, 69 Va. App. at 146 (quoting Redman v. Commonwealth, 25 Va. App. 215,
221 (1997)). Furthermore, to demonstrate that a miscarriage of justice has occurred, “[i]t is
never enough for the defendant to merely assert a winning argument on the merits—for if that
were enough[,] procedural default ‘would never apply, except when it does not matter.’”
Winslow v. Commonwealth, 62 Va. App. 539, 546 (2013) (quoting Alford v. Commonwealth, 56
Va. App. 706, 710 (2010)).
A defendant who enters a guilty plea waives several rights, so a “plea of guilty is
constitutionally valid only to the extent it is ‘voluntary’ and ‘intelligent.’” Bousley v. United
States, 523 U.S. 614, 618 (1998) (quoting Brady v. United States, 397 U.S. 742, 748 (1970)).
Thus, to withstand scrutiny on appeal, the record must contain “an affirmative showing that [the
guilty plea] was intelligent and voluntary.” Boykin v. Alabama, 395 U.S. 238, 242 (1969).
The record demonstrates that the trial court conducted a thorough colloquy with Bowles,
in which he confirmed that he had discussed the charges and their elements with his attorney.
See Hill v. Commonwealth, 47 Va. App. 667, 674-75 (2006) (rejecting a defendant’s challenge
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on direct appeal to the voluntariness of his conditional guilty plea because his statements during
the plea colloquy demonstrated that his plea “was made voluntarily, knowingly, and
intelligently” (citing Boykin, 395 U.S. at 242)).5 Bowles stated he understood “what the state
would have to prove” before he could be found guilty. R. 107-08. He further understood the
penalties each charge carried, including the six-month mandatory minimum term of incarceration
for the driving offense. In addition, Bowles knew that he was waiving several important trial
rights, including the rights to a jury trial, silence, confrontation, and to appeal certain decisions
of the court. Bowles also confirmed that no one had made any threats or promises, other than the
nolle prosequied charges, to induce his guilty pleas. Thus, the record contains “an affirmative
showing” that Bowles’s guilty pleas were “intelligent and voluntary.” Boykin, 395 U.S. at 242.
No authority requires that the trial court review each of the specific elements of the
offenses for Bowles’s guilty pleas to be valid, and we are unpersuaded by his contrary argument.
“A circuit court may not accept a plea of guilty . . . without first determining that the plea is
made . . . with an understanding of the nature of the charge and the consequences of the plea.”
Rule 3A:8(b)(1) (emphasis added); see also Rule 7C:6; Henderson v. Morgan, 426 U.S. 637, 645
(1976) (holding that a defendant must receive “real notice of the true nature of the charge against
him” for a plea to be voluntary (emphasis added) (quoting Smith v. O’Grady, 312 U.S. 329, 334
(1941))). Here, Bowles affirmatively represented that he understood the charges against him and
what the Commonwealth had to prove for the trial court to find him guilty of those charges. After
that discussion, Bowles decided to plead guilty because he was “in fact guilty.” R. 108. Bowles
5
Although relying on “admissions made by a defendant in a guilty plea and the attendant
colloquy . . . is misplaced in the context of a Code § 19.2-296 motion to withdraw a guilty plea,”
Bowles did not move to withdraw his pleas in this case. Hubbard v. Commonwealth, 60
Va. App. 200, 208 (2012) (emphasis added) (quoting Bottoms v. Commonwealth, 281 Va. 23, 33
(2011)).
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also understood the important trial rights he was giving up. Thus, he was aware of the nature of the
charges and the consequences of his pleas.
Bowles also argues that his guilty pleas were not knowing and voluntary because the
record does not demonstrate that he was advised of various “collateral consequences” of his
pleas. Op. Br. 14. This argument lacks merit. “For a guilty plea to be constitutionally valid, a
defendant must be made aware of all the direct, but not the collateral, consequences of his plea.”
Brown v. Commonwealth, 297 Va. 295, 302 (2019) (quoting Meyer v. Branker, 506 F.3d 358,
367-68 (4th Cir. 2007)). Indeed, a “trial court is not required to discuss every nuance of the law
regarding a defendant’s plea in order to render a guilty plea voluntary and knowing.” Zigta v.
Commonwealth, 38 Va. App. 149, 154 (2002). Moreover, Bowles’s reliance on Padilla is
misplaced. Padilla addressed a claim that the trial attorney was ineffective for failing to advise
his client that he would be subject to deportation. Even assuming Padilla could be relevant to
the voluntary nature of certain guilty pleas, Bowles has not presented any evidence or argument
suggesting that he would be subject to deportation.
Finally, Bowles argues that the trial court was deficient in that it did not ask every one of
the “Suggested Questions to Be Put by the Court to an Accused Who Has Pleaded Guilty,” found
in an appendix to the Rules of the Virginia Supreme Court. Op. Br. 12-14. See Va. Sup. Ct. R.
Pt. 3A, App. Form 6. Bowles cites no precedent to support this argument. Moreover, the
questions are, as the title notes, “suggested.” They are not mandatory, and declining to ask each
suggested question does not indicate a failure on the part of the trial court.
Accordingly, we conclude that the record contains an affirmative showing that Bowles’s
guilty pleas were entered knowingly, voluntarily, and intelligently. Boykin, 395 U.S. at 242.
Thus, no manifest injustice will result by applying Rule 5A:18.
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II. Sentencing
“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)).
Bowles argues the trial court abused its discretion by not considering the mitigating
evidence he presented. The record does not support Bowles’s claim. The trial court received the
mitigation evidence Bowles cites and expressly stated it was considering that evidence, including
the “good progress” Bowles recently had made. R. 155. The trial court further expressly found
that Bowles had “been maintaining steady housing” and that Bowles had been “compliant with” the
rehabilitation programs and attended support meetings and treatment to help maintain his sobriety.
R. 155. It was within the trial court’s purview to weigh the mitigating circumstances Bowles
presented. Keselica v. Commonwealth, 34 Va. App. 31, 36 (2000).
The trial court is not obligated to read into the record every factor considered and the
weight given to each one. “Absent a statutory requirement to do so, ‘a trial court is not required
to give findings of fact and conclusions of law.’” Bowman v. Commonwealth, 290 Va. 492, 500
n.8 (2015) (quoting Fitzgerald v. Commonwealth, 223 Va. 615, 627 (1982)). Considering the
record, there is no support for Bowles’s argument that the trial court failed to consider his
evidence.
Under settled principles, we may only consider whether the sentence fell outside the
permissible statutory range. See Minh Duy Du, 292 Va. at 564; Smith v. Commonwealth, 26
Va. App. 620, 626 (1998); Valentine v. Commonwealth, 18 Va. App. 334, 339 (1994). “It lies
within the province of the legislature to define and classify crimes and to determine the
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punishments for those crimes.” DePriest v. Commonwealth, 33 Va. App. 754, 764 (2000). “No
punishment authorized by statute, even though severe, is cruel and unusual unless it is one
‘prescribing a punishment in quantum so severe for a comparatively trivial offense that it would
be so out of proportion to the crime as to shock the conscience . . . .’” Id. (quoting Hart v.
Commonwealth, 131 Va. 726, 745 (1921)). “[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). Bowles was sentenced within the statutory ranges set by the legislature. See §§ 18.2-10,
18.2-250, 18.2-266, 18.2-270. Thus, our review is complete.
CONCLUSION
For the foregoing reasons, this Court affirms the trial court’s judgment.
Affirmed.
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