Fazili v. Commonwealth

71 Va.App. 239

835 S.E.2d 87

Chancelier FAZILI

v.COMMONWEALTH of Virginia

Record No. 1379-18-4

Court of Appeals of Virginia, Leesburg.

DECEMBER 3, 2019

Dawn M. Butorac, Public Defender, for appellant.

Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Humphreys and Russell

OPINION BY JUDGE ROBERT J. HUMPHREYS

On March 19, 2018, appellant Chancelier Fazili ("Fazili") was indicted in the Circuit Court of Fairfax County ("circuit court") on one count of aggravated sexual battery of A.G.K., a child under the age of thirteen, in violation of Code § 18.2-67.3. The indictment alleged that the incident occurred on or about March 28, 2017.

On April 4, 2018 Fazili entered a guilty plea pursuant to a written plea agreement. By order entered on August 9, 2018, the circuit court sentenced Fazili to twenty years’ imprisonment, with fifteen years suspended for a period of ten years. As a condition of probation, the court ordered that Fazili "have no use of any device that can access internet unless approved by his Probation Officer." Fazili assigns the following errors on appeal:

I. The trial court abused its discretion by not considering relevant factors and giving them significant weight and instead gave significant weight to irrelevant and improper factors when fashioning the sentence for Mr. Fazili.

II. The trial court erred by ordering that Mr. Fazili "not use any device that can access the internet unless approved by his Probation Officer."

A. This probation condition was an error because it violates Mr. Fazili’s First Amendment rights under the United States Constitution.

B. This probation condition was an error because it violates Virginia Code § 19.2-303 by improperly delegating the parameters of this special condition to the probation officer.

C. This probation condition was an error because it is an unreasonable condition of probation.

I. BACKGROUND

Fazili initially stood charged with object sexual penetration of a child under the age of thirteen, in violation of Code § 18.2-67.2. However, pursuant to a written plea agreement, Fazili pleaded guilty to one count of aggravated sexual battery of a child under the age of thirteen, in violation of Code § 18.2-67.3. The Commonwealth proffered that the evidence would show Fazili’s sister asked Fazili to babysit her two children. On March 28, 2017, she came home to find Fazili in bed with her five-year-old daughter, A.G.K., and two-year-old son. A.G.K. was crying and told her mother "Uncle touched me." She also told a forensic interviewer that Fazili "put ‘an onion’ in her," "that this had happened more than once in her bedroom," and that "her pants got wet from ‘the onion soup.’ " Fazili later admitted that "his fingers went between the lips of her vagina but were not fully into the hole." He also told a detective that he was masturbating while touching A.G.K. "[S]wabs taken from A.G.K.’s thighs and external genitalia" contained sperm that matched Fazili’s DNA.

Prior to the sentencing hearing, the probation office inadvertently sent the circuit court a sentencing guideline with "an upper end of 5.5 years." However, the probation office resubmitted the appropriate sentencing guidelines, which recommended one day to three months’ imprisonment. At the sentencing hearing, the circuit court heard mitigating evidence relating to his troubled childhood in the war-torn Democratic Republic of Congo. The circuit court also received the presentence report, which contained a statement Fazili made to his probation officer that characterized the events as "a misunderstood from the victim [sic]."

The Commonwealth argued for an upward deviation from the sentencing guidelines, but also stated that "the Commonwealth has amended the charge to reflect obviously what we can prove and take that into consideration with the practical and strategic aspects of having to try this case with such a young victim." After considering the mitigating and aggravating evidence, the circuit court concluded that the sentencing guidelines were "wholly inappropriate because the conduct is not really what is envisioned by those guidelines."

Accordingly, the circuit court sentenced Fazili to twenty years’ imprisonment, with fifteen years suspended for a period of ten years. Pursuant to Code § 19.2-298.01(B), the circuit court explained its reasoning for the upward departure in the sentencing order:

Evidence consistent with child being raped and subject to animate object penetration of her vagina by defendant’s fingers. She was molested while her infant brother was also in bed next to defendant.¹ Sperm was found on the outside of the child’s body. The battery was thus of a more extensive nature in the scale of such crimes.

As a condition of Fazili’s probation, the circuit court ordered that he "have no use of any device that can access internet unless approved by his Probation Officer." At the sentencing hearing, Fazili’s counsel objected to this condition as a violation of Fazili’s First Amendment rights. The circuit court explained that "if he is undergoing some legitimate use of the internet the probation office may permit that. But he is not to have unfettered use of the internet." Fazili further objected to the circuit court delegating the discretion of that condition to the probation officer. On August 9, 2018, the circuit court entered a formal sentence. This appeal follows.

II. ANALYSIS

A. Sentencing Guidelines

"We review the [circuit] court’s sentence for abuse of discretion."

Scott v. Commonwealth, 58 Va. App. 35, 46, 707 S.E.2d 17 (2011) (citing Valentine v. Commonwealth, 18 Va. App. 334, 339, 443 S.E.2d 445 (1994) ). "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." Id. (quoting Jett v. Commonwealth, 34 Va. App. 252, 256, 540 S.E.2d 511 (2001) ); see also Valentine, 18 Va. App. at 339, 443 S.E.2d 445 (holding that if the sentence does not exceed the maximum set by the legislature, "the sentence will not be overturned as being an abuse of discretion" (quoting Abdo v. Commonwealth, 218 Va. 473, 479, 237 S.E.2d 900 (1977) )).

Our sentencing guidelines "are discretionary, rather than mandatory." West v. Dir., Dep’t of Corr., 273 Va. 56, 65, 639 S.E.2d 190 (2007). Accordingly, a circuit court’s failure to follow the guidelines is "not ... reviewable on appeal." Code § 19.2-298.01(F). The General Assembly only requires the circuit court "to consider the sentencing guidelines before sentencing [the 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, 639 S.E.2d 190 (citing Code § 19.2-298.01(B) ).

Aggravated sexual battery is a felony punishable by imprisonment for one to twenty years. Code § 18.2-67.3(B). Here, Fazili was sentenced to twenty years in prison with fifteen years suspended for a period of ten years. Clearly, Fazili’s sentence falls within the statutory range set by the legislature and although the circuit court ultimately rejected both Fazili’s evidence and arguments offered in mitigation and departed from the recommended sentencing guideline range, the record indicates that the circuit court gave consideration if not weight to both. Therefore, no abuse of discretion occurred with respect to the sentence imposed.

B. The Conditions of Probation and Fazili’s First Amendment Rights

As a prelude to considering Fazili’s assignment of error regarding the infringement of his First Amendment rights by the circuit court’s condition of his probation that he abstain from accessing the internet unless he secures the approval of his probation officer, we first consider the nature of probation.

It is axiomatic that the alternative to probation is incarceration for the entirety of a sentence in a facility where access to the internet is at least as restricted as the condition of probation imposed in this case. See Griffin v. Wisconsin, 483 U.S. 868, 874, 107 S.Ct. 3164, 3168-69, 97 L.Ed.2d 709 (1987) ("Probation is simply one point ... on a continuum of possible punishments ranging from solitary confinement in a maximum-security facility to a few hours of mandatory community service."); Hartless v. Commonwealth, 29 Va. App. 172, 175, 510 S.E.2d 738 (1999) (recognizing that the alternative to probation is the imposition of the court’s sentence). Nor does a convicted defendant have a right to be placed on probation under his own terms and conditions. See Code § 19.2-303 ; Burns v. United States, 287 U.S. 216, 221, 53 S.Ct. 154, 156, 77 L.Ed. 266 (1932) (explaining that it is within the court’s broad discretion whether to grant probation). In considering whether probation is appropriate in a given case, the task of the sentencing judge is to balance the appropriate punishment for the crime committed with the available rehabilitative alternatives to incarceration and the protection of the lives and property of the community if the defendant is not isolated from it. See Griffin, 483 U.S. at 875, 107 S.Ct. at 3169 ; see also Wilborn v. Saunders, 170 Va. 153, 160, 195 S.E. 723 (1938). Ideally, the result is an opportunity for a defendant to modify his or her future behavior and address any issues that contributed to their criminal actions while simultaneously providing a mechanism for closely monitoring their compliance and restricting any opportunity to re-offend. See Griffin, 483 U.S. at 875, 107 S.Ct. at 3169 ("[Probation] restrictions are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer’s being at large."); see also Wilborn, 170 Va. at 160, 195 S.E. 723 ("The Commonwealth is interested not only in the preservation of peace and good order, but in reformation of the criminal, so that he may be...