Kelly Michael Vance v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Beales, Chaney and Senior Judge Annunziata
KELLY MICHAEL VANCE
MEMORANDUM OPINION*
v. Record No. 1415-22-1 PER CURIAM
JULY 5, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Bryant L. Sugg, Judge
(Andrew S. Gordon, Senior Assistant Public Defender, on brief), for
appellant.
(Jason S. Miyares, Attorney General; Mason D. Williams, Assistant
Attorney General, on brief), for appellee.
Upon his guilty plea, the trial court convicted Kelly Michael Vance of second-degree
murder and sentenced him to 40 years of incarceration. On appeal, Vance contends that “[t]he
trial court erred in abusing its discretion and imposing forty (40) years of incarceration with no
time suspended.” After examining the briefs and the record, we have determined that oral
argument in this appeal is not necessary because this “appeal is wholly without merit.” Code
§ 17.1-403(ii)(a); Rule 5A:27(a). Consequently, we affirm the judgment of the trial court.
BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, [as] the prevailing party at trial.” Scott v.
Commonwealth, 292 Va. 380, 381 (2016).
* This opinion is not designated for publication. See Code § 17.1-413(A).
At a plea hearing on April 26, 2022, the Commonwealth proffered, without objection, the
following facts. At approximately 4:45 p.m. on June 19, 2019, Vance entered a dental office in
Newport News and asked the receptionist if the dental practice accepted AFLAC insurance.
While the receptionist was speaking with Vance, Dr. William Trolenberg walked down the
hallway and asked if he could help. The receptionist informed Dr. Trolenberg that Vance had
asked whether they took Vance’s insurance, and, subsequently, Dr. Trolenberg “went about his
business.” Vance then took a business card and left the office. Dr. Trolenberg left the office
around 5:00 p.m., setting the office alarm system before running to his car to get out of the heavy
rain.
Footage taken from a nearby surveillance camera showed Dr. Trolenberg running to his
car. Vance had been waiting outside the dental office. As Dr. Trolenberg began backing out of
his parking spot, Vance stopped him, and Dr. Trolenberg let Vance get into the front passenger
seat of his vehicle. Minutes later, a gunshot can be heard on the surveillance footage, and
Dr. Trolenberg opened his door and fell to the pavement. Vance exited the car, walked to the
other side, and shot Dr. Trolenberg again as Dr. Trolenberg attempted to crawl away. Vance
then fled the scene, running between nearby houses. Dr. Trolenberg later died at the hospital
from the gunshot wounds.
Dr. Elizabeth Kinnison conducted an autopsy on Dr. Trolenberg and confirmed that he
had been shot twice in the head. One shot was fired at close-range and caused serious vascular
damage but no definitive brain injuries. The other shot, which was fired from a greater distance,
entered the left side of Dr. Trolenberg’s head and exited his right ear, causing his death.
Vance intelligently, freely, and voluntarily pleaded guilty to second-degree murder. The
trial court conducted a thorough plea colloquy during which Vance acknowledged that he
understood that he faced a maximum 40-year sentence with no parole for his conviction and that
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the trial court could deviate from the sentencing guidelines. The trial court found Vance guilty
of second-degree murder based on his plea and the proffered evidence.
At Vance’s sentencing hearing, Dr. Trolenberg’s family and friends expressed their
heartache and deep sorrow over Dr. Trolenberg’s murder. Several family members provided
photos of memorable occasions. They described him as kind, generous, loving, and
hardworking. They expressed that he was a leader and mentor to his family and friends and that
he loved learning and engaging with others. His sister told the trial court, “[T]he lives of nearly
everyone in this [court]room and many more who cannot be here today were forever changed”
by this senseless murder. Dr. Trolenberg’s eldest daughter stated that the greatest impact of his
murder was that her son would never know his grandfather. His mother stated that when she
thinks about how her son died, it still haunts her every day. Dr. Trolenberg’s wife described her
feelings as she continues to live as a widow after her husband’s death as “[p]ainful” and
“[e]mpty.” Furthermore, since his death, Dr. Trolenberg’s family and friends have experienced
stress, anxiety, and fear.
Vance testified in his own behalf at his sentencing hearing. He explained that his father
was in the military and was often away from home working or on deployment. He described his
stepmother as emotionally abusive and said that he spent most of his childhood caring for his
younger stepbrothers. After graduating high school, Vance joined the Navy and was deployed to
numerous locations. He expressed that he had some setbacks within his career because he failed
to obey orders and had marital problems. Vance underwent a mental health evaluation, which
indicated a potential diagnosis of adjustment disorder, with anxiety and depression. Vance was
honorably discharged from the military.
After he left the military, Vance became involved with a woman named Jennifer Ruiz.
They began planning an international vacation together (although Vance admitted that he had
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lied to Ruiz about his intentions because he had never intended to go). Vance promised to
provide her with financial support for the vacation, but he did not actually have the money to pay
for the trip. Consequently, on June 19, 2019, the day before they were supposed to leave, Vance
stated, “I was kind of panicking because I didn’t have the money to go on this trip.” He said that
he got in his car and drove to Newport News without a plan but thought that “[m]aybe a good
samaritan” would lend him the money.
After making a stop at a garden center in Newport News, he ended up at the dental
practice, went inside, and took notice of Dr. Trolenberg (a man he had never even heard of
before) because “he seem[ed], like, a nice person.” He stated that after Dr. Trolenberg allowed
him into the vehicle to get out of the heavy rain, he asked Dr. Trolenberg for the money. Vance
stated, “[H]e [Dr. Trolenberg] . . . put his right hand on . . . my thigh.” Vance said that this
caused him to become concerned, so he pulled out his gun. He stated that Dr. Trolenberg then
became angry and asked Vance if Vance was going to shoot him. Vance said he pulled the
trigger and that his mind was “still kind of hazy” about what happened. He admitted that he then
exited the vehicle and shot Dr. Trolenberg again.
The Commonwealth argued that under the circumstances of this case “there’s no reason
to deviate from the maximum” sentence of 40 years of imprisonment. The Commonwealth
further asserted that the guidelines are voluntary and that the guidelines do not account for the
egregious and shocking nature of the crime. The Commonwealth emphasized that
Dr. Trolenberg’s family, friends, and employees suffered a painful loss. Although Vance had no
prior criminal history, his actions were unpredictable, and the crime was heinous.
Vance argued that he should be sentenced within the guidelines, which recommended a
range between 12 years and 9 months of incarceration and 21 years and 4 months, because he
had no criminal record. He also emphasized he had honorably served his country in the military.
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Furthermore, he emphasized that “he likely had some mental health issues for which he did not
receive adequate treatment.” Finally, he emphasized that he had not planned to attack
Dr. Trolenberg and that he had accepted responsibility for his actions and had expressed remorse
to the family.
The trial court then sentenced Vance to 40 years of incarceration “after taking into
consideration the nature of this charge, the facts and circumstances as presented in the recitation
of the facts, the presentence investigation and report, taking into consideration the sentencing
guidelines, all of the evidence and testimony that has been elicited today, and your [Vance’s]
allocution.” Vance now appeals to this Court.
ANALYSIS
On appeal, Vance contends that the trial court abused its discretion by imposing a 40-year
sentence with no time suspended. “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)). Furthermore, the sentencing guidelines are only a tool for the trial
court and are not binding. “The sentencing guidelines are advisory only and do not require trial
courts to impose specific sentences.” Runyon v. Commonwealth, 29 Va. App. 573, 577-78
(1999). “[T]he recommended sentencing ranges contained in these discretionary guidelines are
not binding on the trial judge but, rather, are mere tools to be used by the judge in fixing an
appropriate sentence within the limitations established by the statute governing punishment for
the particular crime.” Luttrell v. Commonwealth, 42 Va. App. 461, 465 (2004).
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Here, the trial court convicted Vance of second-degree murder—the maximum sentence
for which is 40 years of incarceration. See Code § 18.2-32. The trial court sentenced Vance to
40 years of imprisonment, which clearly does not exceed that maximum. See Minh Duy Du, 292
Va. at 564. Consequently, the trial court did not abuse its discretion.
Vance also argues that the trial court failed to properly weigh his mitigating evidence.
However, it was within the trial court’s purview to weigh any mitigating factors Vance
presented. Keselica v. Commonwealth, 34 Va. App. 31, 36 (2000). The record affirmatively
demonstrates that the trial court considered all of the evidence before it, including Vance’s
mitigation evidence (e.g., lack of prior criminal history) and his allocution. 1 However, the trial
court weighed more heavily the heinous nature of the crime and Vance’s history of deception.
Here, the evidence showed that Vance had sought out a person at random whom he could con
into giving him some money. When Dr. Trolenberg did not immediately give Vance the money,
Vance took out a firearm and shot Dr. Trolenberg in the head. Then, as the badly wounded
Dr. Trolenberg tried to crawl away from his car, Vance got out of the car, walked around to the
other side of the vehicle, and shot Dr. Trolenberg in the head for the second time—killing him.
Given the severity of the aggravating factors in this case and given that Vance’s sentence
was within the statutory range set by the legislature, we do not disturb the trial court’s sentencing
decision. See Code § 18.2-32; Thomason v. Commonwealth, 69 Va. App. 89, 99 (2018) (“[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.” (quoting Minh Duy Du, 292 Va. at 565)).
1
To the extent Vance contends that the trial court abused its discretion by considering
facts not in evidence, we note that he did not preserve his argument for appeal and does not
invoke the ends of justice exception to Rule 5A:18. This Court will not apply this exception sua
sponte. Edwards v. Commonwealth, 41 Va. App. 752, 761 (2003) (en banc). Consequently,
Rule 5A:18 bars our consideration of this portion of Vance’s argument on appeal.
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CONCLUSION
For all of these reasons, we affirm the trial court’s judgment and sentencing decision.
Affirmed.
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