                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges Beales, Athey and Senior Judge Haley
            Argued at Fredericksburg, Virginia
PUBLISHED




            JOHN CARLOS BARDALES
                                                                                 OPINION BY
            v.     Record No. 0455-19-4                                   JUDGE RANDOLPH A. BEALES
                                                                                 APRIL 7, 2020
            COMMONWEALTH OF VIRGINIA


                                 FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                             Daniel E. Ortiz, Judge1

                           Andrew W. Lindsey (Price Benowtiz, LLP, on brief), for appellant.

                           Matthew P. Dullaghan, Senior Assistant Attorney General (Mark R.
                           Herring, Attorney General, on brief), for appellee.


                   John Carlos Bardales entered a plea agreement in which he pled guilty to a robbery he

            committed while he was a minor. He was sentenced to “the Department of Juvenile Justice for a

            determinate period as a serious juvenile offender pursuant to § 16.1-285.1 . . . not to exceed his

            twenty-first (21st) birthday” and “[f]ollowing his release from the Department of Juvenile

            Justice, . . . a sentence as an adult” in the Department of Corrections (DOC) for five years. After

            the Department of Juvenile Justice (DJJ) requested that the circuit court review Bardales’s

            placement with DJJ, the circuit court on February 19, 2019 suspended his five-year incarceration

            with DOC on the condition that he successfully complete the special DOC Youthful Offender

            Program pursuant to Code § 19.2-311 and Code § 53.1-63. Bardales now challenges the circuit

            court’s final order, claiming that it violated his plea agreement.



                   1
                    Judge Jan L. Brodie presided over all the proceedings in the case except for the final
            proceeding. Judge Daniel E. Ortiz presided over that hearing and entered the final order on
            February 19, 2019.
                                         I. BACKGROUND2

       Bardales was indicted3 in February 2017 for a robbery he committed on October 24,

2016, when he was seventeen years old. On February 27, 2017, while still seventeen, Bardales

signed a plea agreement. Paragraph 7 of the plea agreement stated in full:

               The following is submitted: The defendant will plead guilty to the
               charge, be found guilty and will be sentenced accordingly. The
               only agreement with regards to sentencing is that in exchange for
               the defendant’s plea, the Commonwealth agrees that the defendant
               shall receive a blended sentence that would allow him to serve the
               portion of any active sentence in the custody of the Department of
               Juvenile Justice to the extent that he is eligible for such placement,
               however, such an agreement does not limit this court’s ability to
               sentence the defendant within the full range of punishment. The
               Commonwealth nolle prossed related and unrelated charges at
               preliminary hearing.

       At the February 27, 2017 hearing on Bardales’s guilty plea, Bardales was represented by

Joseph Dailey. After conducting a plea colloquy, the circuit court accepted Bardales’s guilty

plea. Based on counsel for appellant’s request (and the Commonwealth’s concurrence) that

Bardales be screened for the Youthful Offender Program, the circuit court ordered a presentence

investigation and screening for the Youthful Offender Program and scheduled the sentencing

hearing for June 9, 2017.




       2
         Part of the record in this case was sealed. In order to appropriately address the
assignment of error raised by appellant, this opinion includes some limited portions of the record
that were sealed. Consequently, “[t]o the extent that this opinion mentions facts found in the
sealed record, we unseal only those specific facts, finding them relevant to the decision in this
case. The remainder of the previously sealed record remains sealed.” Levick v. MacDougall,
294 Va. 283, 288 n.1 (2017).
       3
          The Fairfax County Juvenile and Domestic Relations District Court entered an order
dated January 19, 2017 stating, “The Commonwealth timely filed a notice of intent to try
defendant as an adult. At the hearing, defendant confirmed that he was aware of his right to a
preliminary hearing on this charge, but that he would waive that hearing.” The order certified
the case to the grand jury of the circuit court.
                                                 -2-
       At the June 9, 2017 sentencing hearing, Bardales’s counsel requested “some sort of

blended sentence to DJJ.” Counsel stated, “John [Bardales] is asking for the court for an order

for him to be committed to the Department of Juvenile Justice until he’s 21, with the remaining

amount of time suspended -- or the adult time suspended which allows him to be on probation.”

After the circuit court confirmed that Bardales did not desire to participate in the DOC Youthful

Offender Program, the court sentenced him to DJJ as a serious juvenile offender, followed by

five years of incarceration in DOC.

       A year later, in a memorandum dated June 29, 2018, DJJ notified the circuit court that

“Bardales is having difficulty adjusting to the expectations of the Virginia Department of

Juvenile Justice (DJJ) and is struggling with adhering to daily operational rules within the Bon

Air Juvenile Correctional facility to the degree that he is affecting the wellbeing of other

residents and staff.”4 The memorandum from DJJ requested the circuit court to review its order

regarding Bardales before the two-year automatic review would occur in June 2019.5 The court

scheduled a hearing for the matter in September 2018. On September 11, 2018, the court entered

an order granting Bardales’s motion to replace his original counsel with new counsel, who then

sought to argue a motion to reconsider Bardales’s sentence.6




       4
        A June 6, 2018 DJJ progress report shows that Bardales “accrued several infractions
and two criminal charges since starting his sentence June 26, 2017,” including a conviction for
misdemeanor possession of a controlled substance and a pending charge of assault on a law
enforcement officer.
       5
          Pursuant to Code § 16.1-285.1(F), DJJ is to petition the court that committed the
juvenile to DJJ for a review of the continued commitment of the juvenile at least sixty days prior
to the second anniversary of his commitment to DJJ, but may also petition the court for an earlier
review.

       Code § 16.1-285.1(E) provides that “[t]he court which commits the juvenile to the
       6

Department under this section shall have continuing jurisdiction over the juvenile throughout his
commitment.” (Emphasis added.)
                                              -3-
       At the September 14, 2018 hearing, Bardales’s new counsel argued that “if [Bardales]

serves an active portion outside of DJJ, that is functionally a rejection of his plea agreement. His

plea agreement says any active portion has to be in DJJ.” The circuit court disagreed with

Bardales’s position, noting, “This plea agreement only says that he would serve a portion of the

active sentence in the custody of DJJ. It doesn’t say that his whole sentence would be in DJJ.”

When the circuit court stated that it would place Bardales to serve the remainder of his sentence

in DOC, counsel stated, “For the record, I’m objecting that the plea has been violated, but if

we’re shifting to what’s next, we would ask for what everyone said he should have gotten in the

first place, which is [the] youthful offender [program].” After hearing that the Commonwealth

did not object to Bardales’s placement in the Youthful Offender Program, the circuit court

“continu[ed] this matter to December 13[, 2018] to determine his eligibility for the youthful

offender program as an alternative to the DJJ and short of sending him just over to DOC.”

       At the conclusion of the December 13, 2018 hearing, the circuit court entered an order

placing Bardales “into the Youthful Offender Program, if eligible” and once again continued the

matter for a review hearing to determine his eligibility for that program.

       At that February 8, 2019 hearing, the judge noted that, after conducting an assessment,

the Youthful Offender Program staff deemed Bardales “eligible [but] not suitable” for the

Youthful Offender Program. Despite the staff’s assessment, the circuit court entered a final

order on February 19, 2019 which suspended the five years of the sentence to DOC imposed on

June 9, 2017, conditioned upon Bardales’s remand to the custody of DOC “for an indeterminate

period of time not to exceed four years” for his successful completion of DOC’s Youthful

Offender Program, pursuant to Code § 19.2-311. Bardales timely filed an appeal of this order.




                                                -4-
       On appeal, Bardales argues, “The trial court erred by sentencing Appellant to active

incarceration outside the Department of Juvenile Justice, in violation of Appellant’s accepted

plea agreement.”

                                           II. ANALYSIS

       A circuit court’s interpretation of a plea agreement is governed by the law of contracts

and is a matter of law subject to de novo review. Hood v. Commonwealth, 269 Va. 176, 181

(2005); Commonwealth v. Sluss, 14 Va. App. 601, 604 (1992). These agreements “are subject to

due process safeguards which require that the government strictly adhere to the terms of its

agreement.” Sluss, 14 Va. App. at 604. To the extent that factual findings of the circuit court are

part of the analysis, we cannot disturb factual findings made by the circuit court unless they are

plainly wrong. Hood, 269 Va. at 181; Naulty v. Commonwealth, 2 Va. App. 523, 527 (1986).

       The question before us then is simply one of interpretation of the plea agreement.

Bardales argues, “The plain language of th[e] agreement specified that any active incarceration

portion of the blended sentence would be served in the DJJ.” He also argues that “the trial

court’s ultimate sentencing of Appellant to additional active incarceration outside of DJJ violated

the terms of the plea agreement.” In his argument, Bardales focuses on the words “the” and

“any” from one sentence in paragraph 7 of the plea agreement as follows:

               The only agreement with regards to sentencing is that in exchange
               for the defendant’s plea, the Commonwealth agrees that the
               defendant shall receive a blended sentence that would allow him to
               serve the portion of any active sentence in the custody of the
               Department of Juvenile Justice to the extent that he is eligible for
               such placement, however, such an agreement does not limit this
               court’s ability to sentence the defendant within the full range of
               punishment.

(Emphasis added.) Focusing on those words, Bardales argues that any actual incarceration

outside of DJJ violates his plea agreement.



                                               -5-
       However, Bardales’s argument does not take into account the entirety of paragraph 7, or

even the entirety of the sentence on which he focuses. The sentence at issue reads,

               The only agreement with regards to sentencing is that in exchange
               for the defendant’s plea, the Commonwealth agrees that the
               defendant shall receive a blended sentence that would allow him to
               serve the portion of any active sentence in the custody of the
               Department of Juvenile Justice to the extent that he is eligible for
               such placement . . . .

(Emphasis added.) Importantly, the rest of the sentence says, “however, such an agreement does

not limit this court’s ability to sentence the defendant within the full range of punishment.” In

addition, paragraph 4 of the plea agreement states, in part, “My attorney has advised me that the

punishment which the law provides is as follows: commitment to the Department of Juvenile

Justice, or confinement in a state correctional facility for life or any term not less than five years,

or a blended juvenile and adult sentence.” (Emphasis added.) Because the plea agreement did

not limit the circuit court’s ability to sentence Bardales for up to a confinement for life, as

Bardales acknowledged in the plea agreement, the court logically must be able to place him in

confinement somewhere other than DJJ, which is limited by statute to confining juveniles only

until they turn twenty-one years of age (see Code § 16.1-285.1(C)). The plea agreement itself

anticipates that Bardales could be in DOC – through use of the language “a blended juvenile and

adult sentence.”

       Bardales’s eligibility for placement in DJJ includes his age (a juvenile may not be

committed to DJJ beyond his twenty-first birthday, see Code § 16.1-285.1(C)), but is not limited

to his age, see, e.g., Code § 16.1-285.1(D) (providing that DJJ’s placement decisions “shall be

made based on the availability of treatment programs at the facility; the level of security at the

facility; the offense for which the juvenile has been committed; and the welfare, age and gender

of the juvenile”). Here, DJJ sent a memorandum to the circuit court requesting a review because

Bardales was “affecting the wellbeing of other residents and staff.” In addition, a DJJ progress
                                                 -6-
report showed that Bardales “accrued several infractions and two criminal charges,” including a

conviction for possession of a controlled substance and a pending charge of assault on a law

enforcement officer while in DJJ. The circuit court, after reviewing the information presented to

it, determined that Bardales was no longer eligible to be placed in DJJ because of his conduct.

At the September 14, 2018 hearing, the circuit court stated, “[R]ight now [Bardales has] thrown

away his chances at DJJ. They want him out of there.” At the December 13, 2018 hearing, the

court stated, “You’ve [Bardales] had a horrendous history over in DJJ. I’ve never seen anything

like this, someone that just can’t look and do what’s requested, required of them. . . . This is

serious stuff.” And at the February 8, 2019 hearing, the circuit court stated, when considering

whether to place Bardales in the Youthful Offender Program, “My bigger concern is he’s picking

up assault charges in DJJ.” Each of these statements by the circuit court is a finding of fact by

the court. Given the record before us, we cannot say that the circuit court was plainly wrong in

those findings of fact.

       In short, the plea agreement provided that Bardales would “receive a blended sentence

that would allow him to serve the portion of any active sentence in the custody of the

Department of Juvenile Justice to the extent that he is eligible for such placement . . . .”

(Emphasis added.) After Bardales had spent just over a year in the custody of DJJ – based on the

request of DJJ to review the matter and after conducting multiple hearings – the circuit court

removed Bardales from DJJ and placed him in the DOC Youthful Offender Program. Based

upon the evidence in the record, we cannot say that the circuit court erred.

       Furthermore, Bardales’s argued interpretation of the plea agreement would ultimately

lead to an absurd result. He argues that, once he turns twenty-one (and thus has aged out of DJJ)

he could be placed on probation, but he could not be committed to active incarceration in DOC

or even its Youthful Offender Program. If Bardales could never be sent to DOC before or after

                                                 -7-
he turns twenty-one, there would be virtually no enforcement mechanism for a failure on his part

to comply with probation. In addition, if Bardales’s position were correct, regardless of how bad

Bardales’s behavior and actions were while in the DJJ facility, the circuit court would actually

have no recourse or enforcement mechanism for Bardales outside of DJJ at its disposal. Taking

Bardales’s argument to its logical conclusion demonstrates the absurdity of his position.

       For all of these reasons, the circuit court did not err in its interpretation of the plea

agreement and in its final order remanding Bardales to the custody of DOC for its Youthful

Offender Program.

                                          III. CONCLUSION

       Contrary to Bardales’s argument that his plea agreement prevented any incarceration

outside of DJJ, his plea agreement explicitly provided that Bardales was to receive “a blended

sentence that would allow him to serve the portion of any active sentence in the custody of the

Department of Juvenile Justice to the extent that he is eligible for such placement . . . .”

(Emphasis added.) The plea agreement also explicitly stated that “such an agreement does not

limit this court’s ability to sentence the defendant within the full range of punishment.”

       After receiving a request from DJJ to review Bardales’s placement there because of

Bardales’s actions and behavior while in DJJ, the circuit court held hearings and ultimately

determined that Bardales should be removed from DJJ and placed in the DOC Youthful Offender

Program. Because the circuit court did not err in its interpretation of the plea agreement, it did

not err in its order placing Bardales in the custody of DOC to complete the Youthful Offender

Program. For all of these reasons, we affirm the decision of the circuit court.

                                                                                               Affirmed.




                                                 -8-
