COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Humphreys, Decker and Russell
Argued at Virginia Beach, Virginia
CREICHUAN GARRETT
MEMORANDUM OPINION* BY
v. Record No. 1931-16-1 JUDGE WESLEY G. RUSSELL, JR.
SEPTEMBER 5, 2017
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Everett A. Martin, Jr., Judge
J. Barry McCracken, Assistant Public Defender, for appellant.
Aaron J. Campbell, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Pursuant to a plea agreement, Creichuan Garrett, appellant, pled guilty to two counts of
statutory burglary, two counts of grand larceny, and one count of felony failure to appear. On
appeal, Garrett concedes that he is guilty of the charged offenses and only argues that the trial court
abused its discretion in sentencing him to a total active term of incarceration of four years and six
months for the five convictions. We disagree and affirm.
BACKGROUND
There is no dispute that Garrett committed the charged offenses. He pled guilty in the trial
court and, to his credit, explicitly accepted responsibility for his actions. Accordingly, we need not
recite all of the facts regarding his various offenses. Rather, because he only challenges his
sentence on appeal, we recite only those facts germane to his appellate argument.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
The Commonwealth and Garrett engaged in plea negotiations about the five charges and
reached an agreement regarding them. Garrett agreed: (1) to plead guilty to the five charges; (2) to
“pay restitution” to the victims of his crimes; (3) to “have no contact” with the victims, and (4) that
he would be banned from a “one-block radius of” the area in which he had committed the offenses.
In return, the Commonwealth agreed “to cap Defendant’s active sentence at either six (6) years or
seven (7) months below the high end of the properly calculated sentencing guidelines range,
whichever is higher.” As part of the agreement, Garrett and the Commonwealth jointly requested
that the trial court order a presentence report.1
Consistent with the practice in the Norfolk Circuit Court, Garrett was presented with a form
entitled “Advice to Defendants Pleading Guilty.” The form confirms the charges an accused faces,
the charges to which he has agreed to plead guilty, that he has had an opportunity to fully discuss
the potential plea with counsel, that he understands the plea agreement, and that he is “freely and
voluntarily” pleading guilty to the listed offenses.
Among other things, the form also informs a defendant of the maximum sentence for the
crimes charged. In Garrett’s case, the form indicated that the maximum amount of incarceration he
faced was twenty years for each of the statutory burglaries, twenty years for each of the grand
larcenies, and five years for the felony failure to appear, for a total of eighty-five years of potential
imprisonment.
The form also advises a defendant that, by pleading guilty, he is waiving certain rights.
Specifically, the form notes that a guilty plea waives a defendant’s “right to a jury trial,” “right to
refuse to testify,” “right to have the witnesses against [him] testify in open court,” “right to defend
[himself],” and “right to appeal the decision of the court.” The form makes clear that, by pleading
1
These terms are reflected in the written plea agreement that was signed by the
defendant, his counsel, and counsel for the Commonwealth. The written agreement was
presented to and eventually accepted by the trial court.
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guilty, a defendant “waive[s] all preceding non-jurisdictional defects, including constitutional
claims.”
Garrett initialed each page of the form, and signed it, indicating that he had “read every item
in this document, line by line, or if [he was unable] to read, [his] attorney had read it to [him], line
by line.” Garrett also acknowledged that he fully understood the contents of the form. The parties
presented the form to the trial court at the guilty plea hearing.
In addition to being presented with the written plea agreement and the advice form at the
guilty plea hearing, the trial court was presented with a summary of the evidence. It then conducted
a guilty plea colloquy with Garrett. In addition to ascertaining that Garrett could read and write, that
he had consulted with counsel before entering into the plea agreement, that he was satisfied with his
counsel’s performance, and that the plea was freely and voluntarily entered, the trial court asked
specific questions regarding how the plea agreement would affect Garrett’s sentence. Specifically,
the following exchange occurred:
COURT: There’s a Plea Agreement that provides the maximum
sentence you will receive will be either six years in prison
or seven months below the high end of the properly
calculated sentencing guidelines, whichever is higher, and
that you’ll have to pay restitution and stay off certain
blocks up in Park Place. Is that your understanding of the
Plea Agreement?
GARRETT: Yes, sir.
COURT: Did you read, sign and understand it?
GARRETT: Yes, sir.
....
COURT: What were you told the high end of the sentencing
guidelines is?
GARRETT: Six and a half years.
COURT: Is that what you told him, [defense counsel]?
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DEFENSE
COUNSEL: It was six years, Your Honor.
COURT: Do you understand when the probation officer calculates
the guidelines, he may come across information that [the
lawyers] didn’t know about and that the high end could be
either higher or lower than what [your lawyer] has told
you?
GARRETT: Yes, sir.
COURT: He usually does a good job in calculating. I just wanted to
advise you. Mistakes can happen though. Do you
understand that?
GARRETT: Yes, sir.
(Emphasis added). Based on the evidence presented, including the colloquy, the trial court accepted
the guilty pleas, ordered a presentence report, and set a date for the sentencing hearing.
At the sentencing hearing the trial court received the sentencing guidelines worksheet that
had been prepared. Neither party objected to the guidelines worksheet or the calculations that went
into determining the guidelines recommendation. Under the guidelines, the recommended range of
incarceration was from a low of three years, eight months to a high of six years, seven months, with
a midpoint recommendation of four years, six months.
The Commonwealth requested that Garrett receive a sentence of six years of incarceration,
the maximum amount allowed under the plea agreement. The Commonwealth argued that a
six-year sentence was appropriate given Garrett’s “criminal history . . . [which was] replete with
burglaries and larcenies essentially from the time he was a juvenile until now. It’s a pattern of
behavior that has not changed or altered even though” Garrett previously had been committed to
the Department of Juvenile Justice.
In response, Garrett argued that a two-year sentence was appropriate, stressing that he
was only nineteen years old at the time of the offenses and had accepted responsibility for his
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actions. Garrett acknowledged his criminal history, but argued that there were reasons to think
that Garrett’s future would be better than his past. Although he argued for the two-year sentence,
Garrett never argued that the six-year sentence sought by the Commonwealth (and countenanced
by his plea agreement) was outrageous or represented something beyond the bounds of the trial
court’s discretion.
The trial court sentenced Garrett to one year of incarceration for each burglary
conviction, one year of incarceration for each grand larceny conviction, and six months of
incarceration for the failure to appear conviction for a total term of active incarceration of four
years and six months, which represented the midpoint of the sentencing guidelines
recommendation. Accordingly, the term of incarceration imposed by the trial court was eighty
years and six months less than the statutory maximum for the offenses and one and a half years
less than the maximum provided for in the parties’ plea agreement.
On appeal, Garrett challenges the four-year-and-six-month sentence. Specifically, he
contends on brief that the trial court abused its discretion because it did not “adequately take into
account [Garrett’s] mental health, drug dependency, and immaturity at the time of the
offenses . . .” and “[Garrett’s] guilty pleas in conjunction with the insight and maturity evidenced
in his statement in allocution reflected his true contrition for his conduct.”2
2
The presentence report contains references to Garrett undergoing substance abuse
treatment while in the custody of DJJ and receiving treatment at various times for ADHD and
“bipolar.” However, in his argument before the trial court at the sentencing hearing, Garrett
made no express reference to either his mental health status or drug dependency.
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ANALYSIS3
“We review [a] trial court’s sentence for abuse of discretion.” Johnson v.
Commonwealth, 63 Va. App. 175, 181, 755 S.E.2d 468, 471 (2014) (quoting Valentine v.
Commonwealth, 18 Va. App. 334, 339, 443 S.E.2d 445, 448 (1994)). The Supreme Court, in an
uninterrupted line of decisions, repeatedly has held that a trial court does not abuse its sentencing
discretion when it sentences a defendant within the statutory range that the General Assembly
has established for the offense or offenses. See, e.g., Alston v. Commonwealth, 274 Va. 759,
771-72, 652 S.E.2d 456, 463 (2007); Rawls v. Commonwealth, 272 Va. 334, 351, 634 S.E.2d
697, 706 (2006); Williams v. Commonwealth, 270 Va. 580, 584, 621 S.E.2d 98, 100 (2005);
Abdo v. Commonwealth, 218 Va. 473, 479, 237 S.E.2d 900, 903 (1977). In 2016, the Supreme
Court reaffirmed this principle, explaining that
[a] Virginia trial court clearly acts within the scope of its
sentencing authority when it chooses a point within the permitted
statutory range at which to fix punishment. In cases where the
argument on appeal is simply a challenge to the duration of
imprisonment, we have consistently held that the sentencing
statutes define the outer boundaries of the bell-shaped curve of
reasonableness. Consequently, when 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. In this respect, our view adheres to the general
proposition that once 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.
3
In all cases, we seek “the best and narrowest ground available” for resolving a case.
Armstead v. Commonwealth, 56 Va. App. 569, 576, 695 S.E.2d 561, 564 (2010). Given that
even Garrett recognizes that the merits of his appellate argument repeatedly have been addressed
and rejected in the prior decisions of this Court and the Supreme Court, we conclude that
reaching the merits is the best and narrowest ground. See Abdo v. Commonwealth, 64 Va. App.
468, 473 n.1, 769 S.E.2d 677, 679 n.1 (2015) (finding that, in the appropriate circumstances,
resolving a case on the merits can represent the best and narrowest ground). Accordingly, we do
not reach the questions of whether Garrett sufficiently raised his appellate argument in the trial
court or whether Garrett’s plea agreement, which he acknowledged in the trial court allowed for
a longer term of active incarceration than he ultimately received, waived the argument he raises
on appeal.
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Minh Duy Du v. Commonwealth, 292 Va. 555, 564-65, 790 S.E.2d 493, 499 (2016) (internal
quotation marks and citations omitted).
Garrett acknowledges that this has been the consistent position of the Supreme Court, but
argues that “it is long past time to reconsider and discard the dated doctrine that a trial court’s
sentence will be presumed reasonable so long as it does not exceed a statutorily imposed
maximum.” In support of this argument, Garrett first states that the first Supreme Court cases
applying the principle involved jury verdicts, and thus, the “rule sprang from reluctance on the
part of the Virginia Supreme Court to second-guess jury verdicts” and should not be applied to
bench trials. Garrett supplements this argument by asserting that Virginia is only one of ten
states to apply the rule with the other forty states “permit[ting] appellate review of the
reasonableness of sentencing whether or not it exceeds the maximum established by statute.”4
Whatever the relative merits of these arguments, our recognition of the appropriate role
of an intermediate appellate court precludes us from doing what Garrett asks. “‘[W]e are bound
by decisions of the Supreme Court of Virginia and are without authority to overrule’ them.” Vay
v. Commonwealth, 67 Va. App. 236, 258 n.6, 795 S.E.2d 495, 505 n.6 (2017) (quoting Roane v.
Roane, 12 Va. App. 989, 993, 407 S.E.2d 698, 700 (1991)). Thus, even if we thought Garrett’s
arguments for overturning binding precedent had merit and that sentencing a repeat offender to a
term of incarceration that represented the midpoint of the sentencing guidelines recommendation,
was within the terms of his plea agreement, and represented less than 6% of the total time
4
In his review of the processes employed by other states, Garrett notes that several states
have statutes that expressly authorize appellate courts to consider whether a term-of-years
sentence within the range set by the legislature for the offense can constitute an abuse of
discretion in a specific case. Virginia has no such statute. Because we assume that the General
Assembly is aware of the prior decisions of this Court and the Supreme Court, Washington v.
Commonwealth, 46 Va. App. 276, 281-82, 616 S.E.2d 774, 777 (2005) (en banc), we conclude
that the absence of such a Virginia statute represents the General Assembly’s agreement with the
existing case law.
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authorized by statute could constitute an abuse of discretion, we lack the authority to grant
Garrett the relief he seeks.5
CONCLUSION
In our system, the General Assembly has the power to set punishments for criminal
offenses. Whether specifically set penalties or ranges of penalties, the setting of the appropriate
potential punishments is wholly a legislative function. The role of the judicial branch is to
evaluate individual cases and offenders in order to discern the appropriate sentence for each
offense from the menu of choices provided by the General Assembly. In Virginia, the discretion
to make these evaluations is vested where the judicial branch comes into the closest contact with
the offender, his crimes, and the victims–the trial court. Unless a trial court strays from the range
set by the General Assembly, Virginia’s appellate courts will not second-guess the trial court’s
exercise of judgment regarding the appropriate punishment. For these reasons, the judgment of
the trial court in this matter is affirmed.
Affirmed.
5
Even if the Supreme Court cases did not compel this result, the prior decisions of this
Court would. We have repeatedly held that “we will not interfere with the sentence so long as it
was within the range set by the legislature for the particular crime of which the defendant was
convicted.” Scott v. Commonwealth, 58 Va. App. 35, 46, 707 S.E.2d 17, 23 (2011) (internal
quotation marks and citations omitted). Because prior panels of this Court have rejected
Garrett’s argument in published opinions, we are bound to follow those opinions under the
inter-panel accord doctrine. Vay, 67 Va. App. at 257, 795 S.E.2d at 505.
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