Smith v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Coleman and
Senior Judge Duff
Argued at Alexandria, Virginia

ROY DAMIEN SMITH, JR.
OPINION BY
v. Record No. 1241-97-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
MAY 12, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Frank A. Hoss, Jr., Judge
William C. Boyce, Jr. (Weimer & Boyce, on
brief), for appellant.

Jeffrey S. Shapiro, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

Roy Damien Smith, Jr. (appellant) entered an Alford plea to

charges of first degree murder and two counts of attempted first

degree murder. On appeal, he contends the trial court erred in

considering his failure to express remorse for the plight of the

victims when imposing a sentence. For the following reasons, we

affirm.

I.

Appellant was indicted on one count of capital murder, two

counts of attempted capital murder, three counts of use of a

firearm in the commission of murder, and one count of conspiracy

to distribute cocaine. Before trial, the Commonwealth and

appellant agreed to a plea bargain in which the charges were

amended to first degree murder and two counts of attempted first

degree murder and appellant entered an Alford plea. See North
Carolina v. Alford, 400 U.S. 25 (1970). Appellant stated: "I'm

pleading guilty because I feel I have no other choice. I just

want to save my life."

The Commonwealth called Detective Richard Cantarella, who

presented a summary of the evidence. Viewed in the light most

favorable to the Commonwealth, see Juares v. Commonwealth, 26 Va.

App. 154, 156, 493 S.E.2d 677, 678 (1997), the evidence

established that on December 9, 1995, appellant entered an

apartment where a woman, several men, and three young children

were present. Appellant attempted to sell cocaine to Antonio

Douglas, one of the men. Douglas refused and walked to the front

of the apartment. Appellant asked the woman to stay in the back,

walked to the front of the apartment, pulled out a gun, and shot

both Douglas and a second man in the head. Later, appellant

fatally wounded a third man with several shots, including two to

the head.
At the conclusion of the summary, the following colloquy

took place:
COURT: Are you pleading guilty because
that's what you believe the Commonwealth's
evidence will be and that [sic] you do not
wish to run the risk of being found guilty
beyond a reasonable doubt?

[APPELLANT]: Yes, sir.

The trial court accepted appellant's Alford plea and found

him guilty of first degree murder and two counts of attempted

first degree murder.

2
 At sentencing, appellant was given the opportunity for

allocution and he made the following statement:
I'm a changed man, you know. . . . Even
though I know I hurted [sic] people in my
life, my family -- I'm ashamed of being in
this situation for real, you know. . . . God
opened my eyes . . . and told me it's time to
wake up, it's time to change, it's time to go
on that straight path. . . . [I]f it take[s]
my whole life from now on until the day I
die, I'm going to maintain, regardless if you
hit me with time or whatever you do, I'm
going [to] change.

Following appellant's statement, the trial court found him to be

a dangerous person and sentenced him to life imprisonment.
I have considered the evidence in this case,
I have considered the presentence
report. . . . And even after listening to
you, the whole time that you told me how
things have affected you and how you are now
going to walk straight no matter what
happens, I still haven't heard anything from
you about the poor person that died on this
occasion . . . . I think you are a dangerous
person, sir. Consequently, on the charge of
murder, I am sentencing you to life in
prison.

Appellant was also sentenced to two concurrent sentences of ten

years for the attempted murders.

II.

The sole issue before us on appeal is whether appellant's

entry of an Alford plea requires the trial judge to disregard his

lack of remorse at sentencing. Appellant contends it is

unreasonable to consider his lack of remorse for a murder he

denied committing. He further argues that requiring defendants

to acknowledge responsibility and express remorse to avoid a more

3
severe sentence may chill the use of the Alford plea and may

increase the burden on the courts.

"'For the determination of sentences, justice generally

requires consideration of more than the particular acts by which

the crime was committed and that there be taken into account the

circumstances of the offense together with the character and

propensities of the offender.'" Shifflett v. Commonwealth, 26

Va. App. 254, 259, 494 S.E.2d 163, 166 (1997) (en banc) (quoting
Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55 (1937)).

"'[P]ossession of the fullest information possible concerning the

defendant's life and characteristics is highly relevant - if not

essential - to the selection of an appropriate sentence.'"

Shifflett, 26 Va. App. at 260, 494 S.E.2d at 166 (citation

omitted). A lack of remorse is "'obviously proper'" evidence to

consider "in determining 'dangerousness,' viz., whether the

defendant 'would in all probability commit criminal acts of

violence in the future.'" Thomas v. Commonwealth, 244 Va. 1, 23,

419 S.E.2d 606, 619, cert. denied, 506 U.S. 958 (1992) (quoting
Clark v. Commonwealth, 220 Va. 201, 210, 257 S.E.2d 784, 790

(1979), cert. denied, 444 U.S. 1049 (1980)). See also United

States v. Jacobson, 15 F.3d 19, 23 (2d Cir. 1994) (lack of

remorse is relevant to sentencing).

In Virginia, "[a]n accused may plead not guilty, guilty or

nolo contendere." Code § 19.2-254. Appellant's right to enter a

plea of guilty without an express admission of guilt was firmly

4
established in North Carolina v. Alford, 400 U.S. 25 (1970). The

Supreme Court determined that such a plea is constitutional and

held that "while most pleas of guilty consist of both a waiver of

trial and an express admission of guilt, the latter element is

not a constitutional requisite to the imposition of criminal

penalty." Id. at 37.

Although the specific question before us is an issue of

first impression in Virginia, several sister states have

considered the effect of a lack of remorse at sentencing when a

defendant has not accepted criminal responsibility. In a case

directly on point, the Court of Appeals of Idaho found that
Alford "does not require . . . that a court accept a guilty plea

from a defendant while simultaneously treating the defendant as

innocent for purposes of sentencing." State v. Howry, 896 P.2d

1002, 1004 (Idaho Ct. App. 1995).

The Howry court rejected the defendant's contention that

considering a lack of remorse at sentencing subverts the purpose

of the Alford plea, and held that "once the Alford plea is
entered, the court may treat the defendant, for purpose of

sentencing, as if he or she were guilty." Id. Additionally,
[a]lthough an Alford plea allows a defendant
to plead guilty amid assertions of innocence,
it does not require a court to accept those
assertions. The sentencing court may, of
necessity, consider a broad range of
information, including the evidence of the
crime, the defendant's criminal history, and
the demeanor of the defendant, including the
presence or absence of remorse.

5
Id. The Howry court concluded that the sentencing court was

"entitled to consider all relevant information regarding the

crime, including [the] defendant's lack of remorse." Id.

Also, in Jennings v. State, the Court of Appeals of Maryland

held that "a sentencing court may consider, on the issue of a

defendant's prospects for rehabilitation, the defendant's lack of

remorse." 664 A.2d 903, 910 (Md. 1995). The court distinguished

lack of remorse, a proper factor to consider in fashioning an

appropriate sentence, from denial of criminal responsibility,

which is not a permissible consideration at sentencing. "It is

absolutely clear that a trial court may not punish a defendant

for invoking his right to plead not guilty." Jennings, 664 A.2d

at 908.

Although the defendant in Jennings did not enter an Alford

plea, he argued on appeal that the trial court enhanced his

sentence because he refused to accept criminal responsibility for

the crime of which he was convicted. See id. The court rejected

this argument, finding that
the sentencing court's remarks reflect a
refusal to grant [the defendant] the benefit
of a lesser sentence . . . rather than the
intentional imposition of a greater one in
punishment for [his] refusal to plead guilty
or his continuing protestations of innocence.

Id. at 909. See also Saenz v. State, 620 A.2d 401, 407 (Md. Ct.

Spec. App. 1993) ("trial court's present tense observation of a

defendant's lack of remorse, so long as it is not explicitly

linked to a defendant's prior claim of innocence or not guilty

6
plea or exercise of his right to remain silent, is an appropriate

factor to consider at sentencing").

We agree with our sister states that a trial court may

consider a defendant's lack of remorse at sentencing, even when

the defendant has chosen to enter an Alford plea. Consideration

of a defendant's attitude "play[s] an important role in the

court's determination of the rehabilitative potential [and future

dangerousness] of the defendant." Howry, 896 P.2d at 1004. The

court must take into account a wide range of information,

including the defendant's remorse or lack thereof, in determining

"'a sentence that best effectuates the criminal justice system's

goals of deterrence (general and specific), incapacitation,

retribution and rehabilitation.'" Shifflett, 26 Va. App. at 259,

494 S.E.2d at 166 (quoting Gilliam v. Commonwealth, 21 Va. App.

519, 524, 465 S.E.2d 592, 594 (1996)). Consequently, we hold

that a defendant's Alford plea does not require that the trial

court disregard his lack of remorse at sentencing.

In the instant case, appellant acknowledged that he "hurted

[sic] people in my life, my family" and was "ashamed of being in

this situation." He also promised "to go on that straight path."

However, appellant did not mention the victims of the shootings

or their families. The trial court considered this lack of

remorse along with appellant's criminal history and the other

"evidence in this case" and imposed the maximum sentences allowed

7
under the statute. 1 See Code §§ 18.2-10(b), 18.2-26(1), and

18.2-32. 2 Where, as here, "the maximum punishment is prescribed

by statute, 'and the sentence imposed does not exceed that

maximum, the sentence will not be overturned as being an abuse of

discretion.'" Valentine v. Commonwealth, 18 Va. App. 334, 339,

443 S.E.2d 445, 448 (1994) (citation omitted). We hold that once

appellant was found guilty, the trial court did not err in

considering his lack of remorse as one factor in sentencing and

did not abuse its discretion in imposing sentences within the

statutory requirements.
Our holding does not, as appellant suggests, require him to

assume responsibility for crimes while asserting his innocence.

Appellant's denial of responsibility would not be inconsistent

with an expression of sympathy for the victims of the "situation"

to which he referred during allocution. Appellant's lack of

concern for the victims of the crimes for which he was convicted

was a factor relevant when assessing his future dangerousness,

which the trial court properly considered at sentencing.

Lastly, appellant argues that requiring him to accept

1
The presentence report disclosed an extensive juvenile
record, multiple probation violations and revocations, and
outstanding bench warrants in New Jersey on charges of attempted
murder, cocaine possession, and weapons and probation violations.
2
First degree murder is punishable as a Class 2 felony with a
maximum penalty of life in prison. Attempted first degree murder
is punishable as a Class 4 felony with a maximum penalty of ten
years in prison. See Code §§ 18.2-10(b), 18.2-26(1), and
18.2-32.

8
responsibility and express remorse for a crime he has not

admitted in exchange for a potentially lighter sentence

effectively compels him to be a witness against himself in

violation of the Fifth Amendment. However, an expression of

remorse does not presuppose acceptance of criminal

responsibility. Appellant was not compelled to testify against

himself; he merely had to choose whether to show sympathy for the

victims. "'The Fifth Amendment does not insulate a defendant

from all "difficult choices" that are presented during the course

of criminal proceedings.'" Doss v. Commonwealth, 23 Va. App.

679, 687-88, 479 S.E.2d 92, 96-97 (1996) (quoting United States

v. Frazier, 971 F.2d 1076, 1080 (4th Cir. 1992), cert. denied,

506 U.S. 1071 (1993)) ("Placing the defendant in a position of

relinquishing the instrumentality of a crime to which he had been

found guilty, in order to receive a suspended sentence, is a

choice that did not impermissibly burden the defendant's

privilege against self-incrimination."). Appellant exercised his

right to allocution at sentencing and chose not to express

remorse for the victims. The trial court was within its

discretion when it considered this choice along with all other

relevant sentencing information. For the foregoing reasons, we

affirm the convictions.

Affirmed.

9