                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Huff, Russell and Athey
UNPUBLISHED


              Argued at Fredericksburg, Virginia


              JOEL RENE ABALOS
                                                                             MEMORANDUM OPINION* BY
              v.     Record No. 0724-19-4                                   JUDGE WESLEY G. RUSSELL, JR.
                                                                                  JANUARY 28, 2020
              COMMONWEALTH OF VIRGINIA


                               FROM THE CIRCUIT COURT OF RAPPAHANNOCK COUNTY
                                              Jeffrey W. Parker, Judge

                               Ryan David Ruzic, Deputy Public Defender, for appellant.

                               Liam A. Curry, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     A jury convicted Joel Rene Abalos, appellant, of misdemeanor domestic assault on a family

              member in violation of Code § 18.2-57.2 and recommended that he serve seven months in jail. On

              appeal, he argues the trial court abused its discretion in sentencing him to seven months in jail with

              one month suspended. For the reasons that follow, we affirm the judgment of the trial court.

                                                        BACKGROUND1

                     Appellant appeared before the juvenile and domestic relations district court (“JDR court”)

              on a charge of assault on a family member. After hearing the evidence, the JDR court, initially with

              appellant’s assent, found the evidence sufficient to convict appellant of domestic assault on a family




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                        Pursuant to Rule 5A:8(c), the parties submitted an agreed written statement of facts in
              lieu of a transcript. The written statement of facts was approved by the trial court. Accordingly,
              our recitation of the proceedings below is taken from that written statement of facts.
member, but deferred disposition pursuant to Code § 18.2-57.3.2 Shortly thereafter, appellant

withdrew his assent to the deferred disposition and asked the JDR court to find him guilty so that he

could appeal the conviction to the circuit court (“trial court”). Consistent with appellant’s request,

the JDR court found appellant guilty of the offense, convicted him, sentenced him to six months in

jail, and ordered that he pay a $2,500 fine.

        Appellant appealed his conviction to the trial court and requested trial by jury. Upon motion

of appellant, the trial court allowed appellant to represent himself, but appointed an attorney from

the Office of the Public Defender to act as standby counsel. In closing argument to the jury,

appellant stated that he had been given first offender disposition in the JDR court. The

Commonwealth objected to appellant’s reference to the proceedings in the JDR court, and the trial




        2
         Code § 18.2-57.3(A) allows a circuit court, subject to certain conditions, to defer the
proceedings absent a finding of guilt “[w]hen a person is charged with a simple assault in
violation of subsection A of § 18.2-57[.]” In turn, Code § 18.2-57.3(B) provides, in part, that

                [f]or a person to be eligible for such deferral, the court shall find
                that (i) the person was an adult at the time of the commission of the
                offense; (ii) the person has not previously been convicted of any
                offense under this article or under any statute of the United States
                or of any state or any ordinance of any local government relating to
                an assault or assault and battery against a family or household
                member; (iii)(a) the person has not previously been convicted of an
                act of violence as defined in § 19.2-297.1 or (b) if such person has
                been previously convicted of such an act of violence, the attorney
                for the Commonwealth does not object to the deferral; (iv) the
                person has not previously had a proceeding against him for
                violation of such an offense dismissed as provided in this section;
                (v) the person pleads guilty to, or enters a plea of not guilty or nolo
                contendere and the court finds the evidence is sufficient to find the
                person guilty of, simple assault in violation of subsection A of
                § 18.2-57 where the victim was a family or household member of
                the person or a violation of § 18.2-57.2; and (vi) the person
                consents to such deferral and to a waiver of his right to appeal a
                finding of facts sufficient to justify a finding of guilt under this
                section entered pursuant to subsection F for a violation of a term or
                condition of his probation.
                                                  -2-
court sustained the Commonwealth’s objection.3 The jury found appellant guilty, and

recommended that he serve seven months in jail. At appellant’s request, the remainder of the

sentencing proceeding was continued until the next day.

        At that time, appellant requested and the trial court allowed his standby counsel to represent

him for the remainder of the sentencing hearing.4 During the sentencing hearing, counsel requested

the trial court suspend the jury verdict and defer a finding of guilt, but the Commonwealth objected.

As reflected in the written statement of facts, the entirety of the discussion related to the trial court

deferring a finding of guilt was as follows:

                On April 19, 2019 the parties reconvened. Appellant moved, and
                the [c]ourt granted, that standby counsel be allowed to represent
                [a]ppellant for the hearing. Counsel for [a]ppellant at that time
                moved the [c]ourt to suspend the jury verdict and defer a finding of
                guilt pursuant to Virginia Code § [18.2-57.35]. The
                Commonwealth objected to such action noting that [a]ppellant was
                in fact the beneficiary of a deferred finding in this case in the
                Juvenile and Domestic Relations Court, which he promptly
                renounced and asked to be convicted so that he might appeal. The
                [trial c]ourt, agreeing with the Commonwealth, denied
                [a]ppellant’s motion [for a deferred disposition].




        3
         Other than noting that the trial court sustained the Commonwealth’s objection to
appellant’s reference to the proceedings in the JDR court, the written statement of facts does not
indicate whether the trial court took any other action regarding the objection, such as giving the
jury a cautionary instruction to disregard appellant’s statement.
        4
         Appellant’s original standby counsel was unavailable for the reconvened sentencing
hearing, so another lawyer from the Public Defender’s Office represented appellant at that
hearing.
        5
         The written statement of facts contains a typographical error. Instead of correctly
identifying the relevant code section as Code § 18.2-57.3, the written statement of facts refers to
“Virginia Code § 186.2-57.2,” which does not exist. Given context, it is clear that appellant
sought relief pursuant to Code § 18.2-57.3. Accordingly, we conduct our review with that
understanding.
                                               -3-
Although he asked the trial court for a deferred disposition, appellant never objected to the

Commonwealth’s argument that such a disposition was inappropriate in light of what had transpired

in the JDR court.

        Appellant then argued that the trial court should “suspend the jury’s recommended sentence

and place [a]ppellant on probation[.]” In pronouncing sentence, the trial court noted that

“[a]ppellant was his own worst enemy who thoroughly aggravated the jury the previous day.” The

trial court then suspended one month of the recommended sentence, leaving appellant with six

months to serve in jail, on the condition that he successfully complete twelve months of supervised

probation, complete domestic abuse counseling, and participate in any other counseling

recommended by the probation office. In a sentencing memorandum, the trial court wrote, “it is the

[c]ourt’s belief that the suspension of the one month sentence was in the best interest of the [c]ourt

and the Commonwealth and the parties to insure the [appellant] complied with the counseling

requirement.” Appellant did not object to the sentence he received nor did he file a motion to

reconsider.

        On appeal, appellant argues that the trial court abused its discretion when it considered at

sentencing that appellant had refused to accept a deferred disposition in the JDR court. Specifically,

he argues that his “declination of a deferred finding in lower court . . . is not a circumstance

surrounding the offense, the history and background of the defendant, nor a fact in mitigation nor

a fact in aggravation.” Furthermore, in his reply brief, he argues that, in the trial court, no

consideration should have been given to the proceedings below because the trial court

proceeding was supposed to be a trial de novo.

                                             ANALYSIS

        On appeal, appellant argues that his sentencing was in error because the trial court

impermissibly considered what transpired in the JDR court. Trial courts have long been given

                                                 -4-
great latitude in determining what to consider in determining an appropriate sentence. As we

have noted,

               both before and since the American colonies became a nation,
               courts in this country and in England practiced a policy under
               which a sentencing judge could exercise a wide discretion in the
               sources and types of evidence used to assist him in determining the
               kind and extent of punishment to be imposed within limits fixed by
               law.

Harvey v. Commonwealth, 65 Va. App. 280, 284 (2015) (quoting McClain v. Commonwealth,

189 Va. 847, 859-60 (1949)). As a result, we review challenges to such determinations “under

an abuse of discretion standard.” Prieto v. Commonwealth, 283 Va. 149, 168 (2012).

       Before we can conduct such a review however, a litigant must have raised his argument

in the trial court. Rule 5A:18 provides 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[.]” Accordingly, we cannot address appellant’s argument that the trial court

impermissibly considered the proceedings in the JDR court unless appellant raised such an

objection in the trial court. A review of the record on appeal reveals that he failed to do so.

       The written statement of facts reveals that, in the trial court, appellant requested a

deferred disposition and that the Commonwealth argued that he should not receive one because

he had refused that outcome in the JDR court. In sum, appellant gave a reason why the trial

court should grant him a deferred disposition and the Commonwealth gave a reason why it

should not. Although the trial court ultimately agreed with the Commonwealth’s reason, there is

no indication that appellant ever argued, as he does on appeal, that the trial court should not even

consider that reason. The record simply does not demonstrate that appellant objected to the trial

court considering what had occurred in the JDR court or otherwise brought the issue to the trial

court’s attention.



                                                 -5-
       Appellant’s failure to comply with Rule 5A:18 is fatal to his claim on appeal. “The

laudatory purpose behind Rule 5A:18 . . . is to require that objections be promptly brought to the

attention of the trial court with sufficient specificity that the alleged error can be dealt with and

timely addressed and corrected when necessary.” Redman v. Commonwealth, 25 Va. App. 215,

220 (1997) (ellipsis in original) (quoting Brown v. Commonwealth, 8 Va. App. 126, 131 (1989)).

The rule “places the parties on notice that they must give the trial court the first opportunity to

rule on disputed evidentiary and procedural questions. The purpose of this rule is to allow

correction of an error if possible during the trial, thereby avoiding the necessity of mistrials and

reversals.” Brooks v. Commonwealth, 61 Va. App. 576, 581 (2013) (quoting Gardner v.

Commonwealth, 3 Va. App. 418, 423 (1986)).

       Because appellant did not raise this issue in the trial court, Rule 5A:18 precludes us from

“consider[ing it] for the first time on appeal[.]” Vay v. Commonwealth, 67 Va. App. 236, 261

n.11 (2017). Accordingly, we do not reach the merits of appellant’s assignment of error, and

therefore, the judgment of the trial court is affirmed.6




       6
          The bar imposed by Rule 5A:18 is subject to limited exceptions “for good cause shown
or to enable the Court of Appeals to attain the ends of justice.” In his reply brief, appellant
references the rule’s exceptions and states that his sentencing constitutes “a grave injustice[,]”
but does not ask us expressly to apply the exceptions. We do not raise the exceptions to the bar
of Rule 5A:18 sua sponte. Hicks v. Commonwealth, 71 Va. App. 255, 269 n.6 (2019). Even if
appellant’s reply brief is read as an invocation of the ends of justice exception, appellant cannot
satisfy that test. See, e.g., Holt v. Commonwealth, 66 Va. App. 199, 210 (2016) (en banc) (“In
order to show that a miscarriage of justice has occurred, thereby invoking the ends of justice
exception, the appellant must demonstrate that he or she was convicted for conduct that was not
a criminal offense or the record must affirmatively prove that an element of the offense did not
occur.” (quoting Redman, 25 Va. App. at 221-22)). Appellant’s argument does not challenge
that he actually committed the offense or assert that his sentence exceeded the statutory range.
Even assuming the trial court erred in considering the events in the JDR court, any such error
would not fall within the ends of justice exception.
                                                 -6-
                                   CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

                                                                          Affirmed.




                                         -7-
