COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Senior Judges Annunziata, Frank and Petty
CHARLES ROBERT FOSTER
MEMORANDUM OPINION*
v. Record No. 0812-21-1 PER CURIAM
MAY 31, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
David W. Lannetti, Judge
(Eric P. Korslund; Law Office of Eric Korslund, P.L.L.C., on brief),
for appellant.
(Jason S. Miyares, Attorney General; Sharon M. Carr, Assistant
Attorney General; on brief), for appellee. Appellee submitting on
brief.
Counsel for Charles Robert Foster, appellant, filed a brief on his behalf accompanied by a
motion for leave to withdraw in accordance with Anders v. California, 386 U.S. 738, 744 (1967).
A copy of that brief has been furnished to Foster with sufficient time for him to raise any matter
that he chooses. Foster has not filed any supplemental pleadings. After examining the briefs and
record in this case, we affirm the trial court’s judgment.
Upon his guilty plea, the trial court convicted appellant of aggravated malicious wounding
and sentenced him to fifty years’ incarceration with sixteen years suspended, leaving appellant with
an active sentence of thirty-four years. On appeal, he argues that the trial court abused its discretion
in fashioning the sentence. After examining the briefs and record in this case, the panel
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.
unanimously holds that oral argument is unnecessary because “the appeal is wholly without merit.”
Code § 17.1-403(ii)(a); Rule 5A:27(a).
BACKGROUND
“On appeal, we review the evidence in the ‘light most favorable’ to the Commonwealth,
the prevailing party in the trial court.” Yerling v. Commonwealth, 71 Va. App. 527, 530 (2020)
(quoting Vasquez v. Commonwealth, 291 Va. 232, 236 (2016)). This standard requires us to
“discard the evidence of the accused in conflict with that of the Commonwealth, and regard as
true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn
[from that evidence].” Bagley v. Commonwealth, 73 Va. App. 1, 26 (2021) (alteration in
original) (quoting Cooper v. Commonwealth, 54 Va. App. 558, 562 (2009)).
On June 13, 2018, appellant pleaded guilty to aggravated malicious wounding. Before
accepting appellant’s guilty plea, the trial court conducted a colloquy to ensure that appellant was
entering his plea freely and voluntarily. Appellant confirmed that he had discussed the charge with
his attorney and knew the maximum punishment for the offense.
At the sentencing hearing, Mia Kirkwood, appellant’s former wife, testified that on
February 20, 2017, while they were still married, appellant arrived at her workplace very early in
the morning. Appellant was angry with her because he believed he was entitled to a portion of
her income tax refund which she had refused to give him. Kirkwood saw appellant in the
parking lot when she went outside to move her car. When she “noticed his eyes,” she
“immediately started running.” Suddenly, appellant stabbed Kirkwood “straight across [her]
back,” and she fell to the ground. Kirkwood “had to get over a hundred stitches” to close the
wound and spent more than three days in the hospital. Her wound required follow-up treatments,
and she still experienced pain “every time it rains, when it’s cold, [and] even sometimes at night
out of the blue . . . .” Kirkwood has a scar on her back that is “longer than a 12-inch ruler” and,
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because of her keloids, the scar is raised off her skin. Kirkwood testified that the experience
“has ruined [her] for the rest of [her] life” and that she has been diagnosed with post-traumatic
stress disorder, depression, and “severe anxiety.”
Acknowledging that appellant apologized to Kirkwood in allocution, the trial court
nevertheless emphasized “the lack of remorse that has been shown by the defendant throughout”
the case. The court highlighted the seriousness of the offense, the severity of Kirkwood’s
wounds, and the negative impact the attack has had on her life when it sentenced appellant to
thirty-four years of active incarceration.1 This appeal followed.
ANALYSIS
Appellant argues that the trial court abused its discretion by sentencing him to an active
term of incarceration of thirty-four years. “Criminal sentencing decisions . . . are vested in the
sound discretion of trial judges, not appellate judges.” Du v. Commonwealth, 292 Va. 555, 563
(2016). “When exercising its discretionary power, . . . the trial court ‘has a range of choice, and
its decision will not be disturbed as long as it stays within that range and is not influenced by any
mistake of law.’” Id. at 563-64 (quoting Lawlor v. Commonwealth, 285 Va. 187, 212-13
(2013)). “Only when reasonable jurists could not differ can we say an abuse of discretion has
occurred.” Id. at 564 (quoting Grattan v. Commonwealth, 278 Va. 602, 620 (2009)).
Accordingly, we may reverse a trial court’s sentencing decision “only upon clear evidence that
[the decision] was not judicially sound[.]” DeLuca v. Commonwealth, 73 Va. App. 567, 575
(2021) (alterations in original) (quoting Jefferson v. Commonwealth, 27 Va. App. 477, 488
(1998)). “[I]n conducting our review, ‘we are bound by the trial court’s findings of historical
1
The discretionary sentencing guidelines recommended a range from fifteen years and
seven months to thirty-four years and eight months.
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fact unless plainly wrong or without evidence to support them . . . .” Id. (quoting Branch v.
Commonwealth, 60 Va. App. 540, 548 (2012) (second alteration in original)).
“Given this deferential standard of review, 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.” Fazili v. Commonwealth, 71 Va. App. 239, 248 (2019) (quoting Scott v.
Commonwealth, 58 Va. App. 35, 46 (2011)). The Virginia criminal sentencing guidelines are
“discretionary, rather than mandatory.” West v. Dir. of Dep’t of Corr., 273 Va. 56, 65 (2007). They
are “merely procedural tools to assist and guide a judge in the exercise of the judge’s sentencing
discretion.” Luttrell v. Commonwealth, 42 Va. App. 461, 468 (2004). Thus, “the [trial] court was
required only to consider the sentencing guidelines before sentencing [appellant] and to file with the
record of the case a written explanation of any departure from the indicated range of punishment.”
West, 273 Va. at 65 (citing Code § 19.2-298.01(B)). The task of sentencing “rest[s] 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.”
Du, 292 Va. at 563.
Here, the record demonstrates that the sentencing court considered the discretionary
sentencing guidelines, the circumstances of the offense, and appellant’s history and
characteristics—including his mental health. After considering all the evidence and explaining its
reasoning on the record, the trial court sentenced appellant within the statutory range set by the
General Assembly. See Code § 18.2-51.2. We do not assess the appropriate application of any
aggravating or mitigating factors supporting a trial court’s sentencing decision. It is within the trial
court’s purview to weigh any mitigating factors appellant presented. See Keselica v.
Commonwealth, 34 Va. App. 31, 36 (2000). Appellant’s sentence was “within the statutory range,
and our task is complete.” Thomason v. Commonwealth, 69 Va. App. 89, 99 (2018).
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CONCLUSION
Accordingly, we affirm the trial court’s judgment and grant the motion for leave to
withdraw. See Anders, 386 U.S. at 744. This Court’s records shall reflect that Charles Robert
Foster is now proceeding without the assistance of counsel in this matter and is representing
himself on any further proceedings or appeal.
Affirmed.
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