Shanklin v. Commonwealth

NATHAN LEE SHANKLIN v. COMMONWEALTH OF VIRGINIA

Record No. 0535-17-2

COURT OF APPEALS OF VIRGINIA

APRIL 17, 2018

UNPUBLISHED

Present: Judges Chafin, Decker and AtLee

Argued at Richmond, Virginia

MEMORANDUM OPINION^* BY JUDGE MARLA GRAFF DECKER

FROM THE CIRCUIT COURT OF WESTMORELAND COUNTY

R. Michael McKenney, Judge

Mason D. Husby (Woodbridge & Coleman, P.C., on brief), for appellant.

Leah A. Darron, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Nathan Lee Shanklin appeals a condition placed on his period of suspended sentence. He argues that the trial court erred by imposing a waiver of his Fourth Amendment rights as a condition of his supervised probation. We hold that this issue is procedurally barred by Rule 5A:18. Accordingly, we affirm the judgment of the trial court.

I. BACKGROUND

The appellant was convicted of conspiracy to distribute a controlled substance; the manufacture or distribution of a controlled substance, third or subsequent offense; possession of a controlled substance; and possession of ammunition by a felon.¹ See Code §§ 18.2-248, -250, -256, -308.2. At sentencing, the Commonwealth presented evidence that theappellant had been on supervised probation for about four months at the time that he committed the instant offenses, which involved selling oxycodone and heroin. Further, the house where the sales took place contained a large amount of cash and heroin packaged for distribution, and the appellant was a member of a criminal street gang.

The trial court sentenced the appellant to a total of forty-three years in prison. The court imposed the mandatory minimum of ten years of active time and suspended thirty-three years of the combined sentences for a period of ten years.² See Code § 18.2-248(C). As a condition of the suspended sentences, the sentencing order provided that the appellant was subject to supervised probation. As part of that probation, the appellant "waive[d] his Fourth Amendment rights against unreasonable searches and seizures of his person, property or automobiles at any time by any probation officer or law enforcement officer during the period of active supervised probation." During the sentencing colloquy, the appellant indicated that he understood the sentence and did not have any questions. The court also asked defense counsel if there was "anything else" before concluding, and counsel responded, "No, sir."

II. ANALYSIS

The appellant argues that the trial court erred by imposing a waiver of his Fourth Amendment rights as a condition of the suspension of his sentence and supervised probation. He acknowledges that he did not object in the trial court to this condition and asks that the Court consider this assignment of error under the ends-of-justice exception to Rule 5A:18.

We do not decide whether the Fourth Amendment waiver constitutes error in the context of these facts because we conclude that regardless, the issue was not raised below and the ends-of-justice exception to Rule 5A:18 does not apply. We look to the alleged error only as it applies to the ends-of-justice analysis. See Dietz v. Commonwealth, 294 Va. 123, 134, 804 S.E.2d 309, 315 (2017) (noting that an appellate court decides cases on "the best and narrowest grounds available" (quoting Commonwealth v. White, 293 Va. 411, 419, 799 S.E.2d 494, 498 (2017))).

Rule 5A:18 provides, in pertinent part, that "[n]o ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except . . . to enable the Court of Appeals to attain the ends of justice." In determining whether a litigant has satisfied the requirements of the rule, Virginia's appellate courts have "consistently focused on whether the trial court had the opportunity to rule intelligently on the issue." Scialdone v. Commonwealth, 279 Va. 422, 437, 689 S.E.2d 716, 724 (2010) (applying Rule 5:25, the Supreme Court of Virginia counterpart to Rule 5A:18). "In addition, 'a specific, contemporaneous objection gives the opposing party the opportunity to meet the objection at that stage of the proceeding.'" Id. (quoting Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991)).

"'The ends of justice exception is narrow and is to be used sparingly,' and applies only in the extraordinary situation where a miscarriage of justice has occurred." Holt v. Commonwealth, 66 Va. App. 199, 209, 783 S.E.2d 546, 550 (2016) (en banc) (quoting Redman v. Commonwealth, 25 Va. App. 215, 220-21, 487 S.E.2d 269, 272 (1997)). "It is never enough for the defendant to merely assert a winning argument on the merits—for if that were enough[,] procedural default 'would never apply, except when it does not matter.'" Winslow v.Commonwealth, 62 Va. App. 539, 546, 749 S.E.2d 563, 567 (2013) (quoting Alford v. Commonwealth, 56 Va. App. 706, 710, 696 S.E.2d 266, 268 (2010)).

The Court "considers two questions when deciding whether to apply the ends of justice exception: (1) whether there is error as contended by the appellant; and (2) whether the failure to apply the ends of justice provision would result in a grave injustice." Williams v. Commonwealth, 294 Va. 25, 27-28 (2017) (published order) (quoting Commonwealth v. Bass, 292 Va. 19, 27, 786 S.E.2d 165, 169 (2016)); see also Hines v. Commonwealth, 59 Va. App. 567, 572, 721 S.E.2d 792, 794 (2012) (noting that consideration of the ends-of-justice exception to Rule 5A:18 "is a two-step process: determining whether the alleged error occurred, and, if so, whether justice requires application of the ends of justice provision").³

Factors relevant in a sentencing context to identifying whether application of the ends-of-justice exception is warranted include whether the alleged error resulted because the trial court exceeded the sentence authorized by the General Assembly and whether the error was constitutional.⁴ See Bass, 292 Va. at 28-29 & n.5, 786 S.E.2d at 170-71 & n.5; see also Frango v. Commonwealth, 66 Va. App. 34, 48, 782 S.E.2d 175, 181 (2016) (applying the ends-of-justiceexception to reverse a sentence that exceeded the statutory maximum); Webb v. Commonwealth, 64 Va. App. 371, 378-79, 768 S.E.2d 696, 700 (2015) (reviewing pursuant to the ends-of-justice exception the statutory error of accepting a non-unanimous sentencing verdict from a jury). However, our jurisprudence does not require ends-of-justice application if the alleged error is that the condition imposed was not reasonable under the statute in light of the circumstances. See Brittle v. Commonwealth, 54 Va. App. 505, 520, 680 S.E.2d 335, 343 (2009) (declining to apply the ends-of-justice exception when a sentence was "not excessive on its face"); see also Brown v. Commonwealth, 279 Va. 210, 220, 688 S.E.2d 185, 190-91 (2010) (holding that the issue of whether the trial court sentenced the defendant as a juvenile outside of its statutory authority was barred because the Commonwealth conceded it at trial).

The question of whether a trial court erred by imposing a particular condition on a period of supervised probation connected to a suspended sentence is reviewed for an abuse of discretion.⁵ Murry v. Commonwealth, 288 Va. 117, 122, 762 S.E.2d 573, 576 (2014). A reviewing court can conclude that "an abuse of discretion has occurred" only in cases in which "reasonable jurists could not differ" about the correct result. Commonwealth v. Swann, 290 Va. 194, 197, 776 S.E.2d 265, 268 (2015) (quoting Grattan v. Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009)). However, a trial court "by definition abuses its discretion when it makes an error of law." Porter v. Commonwealth, 276 Va. 203, 260, 661 S.E.2d 415, 445 (2008) (quoting Koon v. United States, 518 U.S. 81, 100 (1996)).

In reviewing a condition of probation "imposed by a trial court as part of its sentencing determination," the "only statutory limitation on the court's exercise of its discretion is 'one ofreasonableness.'" Murry, 288 Va. at 122, 762 S.E.2d at 576 (quoting Anderson v. Commonwealth, 256 Va. 580, 585, 507 S.E.2d 339, 341 (1998)). The "conditions must be reasonable in light of the nature of the offense, the defendant's background, and the surrounding circumstances." Id. The Supreme Court has recognized a probationer's constitutional right to "retain some expectation of privacy." Id. at 126, 762 S.E.2d at 578 (emphasis added). In evaluating the reasonableness of a court-imposed waiver of an offender's Fourth Amendment rights, the Court must balance the individual's "privacy interests against the Commonwealth's interests in imposing the condition" under the circumstances.⁶ Id. at 123, 762 S.E.2d at 577.

The appellant relies on Murry, 288 Va. 117, 762 S.E.2d 573, for the propositions that the challenged condition was unreasonable and that it qualifies for application of the ends-of-justice exception to Rule 5A:18. In Murry, the Supreme Court of Virginia held that the imposition of an indefinite waiver of the defendant's Fourth Amendment rights as a condition of probation was not reasonable under the circumstances of that case. Id. at 121-22, 130, 762 S.E.2d at 575-76, 581 ("The only statutory limitation on the court's exercise of its discretion is 'one of reasonableness.'" (quoting Anderson, 256 Va. at 585, 507 S.E.2d at 341)). The Supreme Court did not hold that the Fourth Amendment waiver condition was unconstitutional or unreasonable on its face.⁷ Compare Murry, 288 Va. at 130, 762 S.E.2d at 581 (holding that the condition was"not reasonable in light of Murry's offenses, his background, and the surrounding circumstances"), with State v. Bennett, 200 P.3d 455, 463 (Kan. 2009) ("The condition of probation in this case, requiring that Bennett submit to random, suspicionless searches, violates the defendant's constitutional rights under the Fourth Amendment and § 15 of the Kansas Constitution Bill of Rights."), superseded by statute on other grounds Kan. Stat. §...