                                             COURT OF APPEALS OF VIRGINIA
UNPUBLISHED


              Present: Chief Judge Huff, Judges Petty and McCullough
              Argued by teleconference

              JUSTIN DWAYNE STUMP
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1902-13-3                                    CHIEF JUDGE GLEN A. HUFF
                                                                                  MARCH 24, 2015
              COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
                                             Marcus H. Long, Jr., Judge

                               Steven D. Smith (SD Smith, Esquire, PLLC, on brief), for
                               appellant.

                               Kathleen B. Martin, Senior Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     On September 9, 2013, the Circuit Court of Montgomery County (“trial court”) found

              that Justin Dwayne Stump (“appellant”) failed to comply with the terms of his probation, which

              was ordered pursuant to a deferred disposition on two counts of possession of a controlled

              substance, in violation of Code § 18.2-250. Consequently, the trial court revoked appellant’s

              deferred disposition and found appellant guilty of the possession charges pursuant to Code

              § 18.2-251. On appeal, appellant argues that

                               [t]he trial court erred in finding [appellant] in violation of the
                               requirements of his deferred disposition for failure to attend a
                               mandatory drug treatment program . . . because [appellant] was
                               incarcerated and convicted on other unrelated charges, which fact
                               was known to the Commonwealth at the time of the plea
                               agreement, and [he] was not given an opportunity to comply with
                               the requirements of Code § 18.2-251.

                     For the following reasons, this Court affirms the trial court’s ruling.



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                             I. BACKGROUND

       On appeal, “‘we consider the evidence and all reasonable inferences flowing from that

evidence in the light most favorable to the Commonwealth, the prevailing party at trial.’”

Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc)

(quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed,

the evidence is as follows.

       On November 18, 2012, appellant was charged with two counts of possession of a

controlled substance, in violation of Code § 18.2-250. Subsequently, on February 6, 2013, appellant

was arrested on unrelated charges of grand larceny and breaking and entering. Appellant has been

continuously incarcerated since that time.

       On May 29, 2013, after appellant’s arrest for the unrelated charges, the trial court

determined that appellant was eligible for a deferred disposition under Code § 18.2-251 for his

possession charges. Consequently, appellant entered into a plea agreement with the Commonwealth

for a deferred disposition whereby appellant was placed on “supervised probation for one year.” As

part of his probation, appellant was required, among other things, to “perform and complete 200

hours of community service under the supervision of New River Valley [Alcohol Safety Action

Program],” undergo a substance abuse assessment, and complete a treatment and education

program. After a noncompliance letter was filed by New River Valley ASAP, however, the trial

court issued a rule to show cause for appellant’s failure to comply with the conditions of his

probation.

       On August 14, 2013, appellant was convicted on the unrelated grand larceny and breaking

and entering charges and was sentenced to three years’ and three months’ incarceration. On that

same day, the trial court heard the show cause for appellant’s failure to comply with the terms of his

probation. At the hearing, appellant argued that he was not able to comply with VASAP because he
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had been continuously incarcerated on the unrelated grand larceny and breaking and entering

charges since February 6, 2013. Additionally, appellant asserted that he committed no affirmative

act since entering the plea agreement that rendered him unable to comply with the terms of his

probation. The trial court noted that this failure was “[appellant’s] own fault.” The case was

continued for sentencing guidelines to be prepared.

       On September 4, 2013, appellant stipulated that he had failed to complete the terms of his

probation, but asserted that he had not anticipated the length of the sentence he would receive for

the unrelated charges when he entered the plea agreement. Additionally, appellant represented that

he was still ready to comply with the terms of his deferred disposition. Nevertheless, the trial court

revoked appellant’s deferred disposition and entered a final conviction order under Code

§ 18.2-251. This appeal followed.

                                           II. ANALYSIS

       On appeal, appellant contends that the trial court erred in finding that appellant failed to

comply with the terms of his probation. Specifically, appellant argues that under the contractual

principle of “impracticability” appellant should have been relieved of his obligations under the

plea agreement.

       Code § 18.2-251 provides that

               [w]henever any person who has not previously been convicted of
               any offense under this article or under any statute of the United
               States or of any state relating to narcotic drugs . . . pleads guilty to
               . . . possession of a controlled substance under § 18.2-250 . . ., the
               court, upon such plea if the facts found by the court would justify a
               finding of guilt, without entering a judgment of guilt and with the
               consent of the accused, may defer further proceedings and place
               him on probation upon terms and conditions.

If, however, a defendant violates “a term or condition” of his probation and deferred disposition,

the trial court “may enter an adjudication of guilt and proceed as otherwise provided.” Id.

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       Statutes that permit circuit courts to impose alternatives to incarceration, such as

Code § 18.2-251, are “highly remedial” in nature and are liberally construed to provide trial

courts valuable tools for rehabilitation of criminals. Grant v. Commonwealth, 223 Va. 680, 684,

292 S.E.2d 348, 350 (1982). As a result, circuit courts retain “full authority to independently

evaluate [a] defendant’s compliance” with a deferred disposition order, Connelly v.

Commonwealth, 14 Va. App. 888, 890, 420 S.E.2d 244, 245 (1992), and “weigh any mitigating

factors presented by the defendant,” Keselica v. Commonwealth, 34 Va. App. 31, 36, 537 S.E.2d

611, 613 (2000). Accordingly, this Court reviews adjudications of guilt under Code § 18.2-251

for an abuse of discretion by the circuit court. Connelly, 14 Va. App. at 890, 537 S.E.2d at 245.

       In the present case, appellant stipulated that he failed to comply with the terms of his

probation, and the trial court heard and considered appellant’s mitigating factors for this failure.

Specifically, appellant informed the trial court that he was unable to comply with VASAP

because of his incarceration and that he had not anticipated the length of sentence he would

receive for the unrelated charges. Additionally, appellant asserted that he was still willing to

comply with the terms of his probation. Notwithstanding these mitigating factors, the trial court

noted that appellant’s failure to comply with VASAP was “[appellant’s] own fault.”

       Not only was appellant presently incarcerated on the unrelated charges when he entered

the plea agreement, but he was also aware of the possibility of his continued incarceration.

Nevertheless, he chose to bind himself to the terms of probation in the plea agreement to get a

deferred disposition on his possession charges. Additionally, appellant was aware that the plea

agreement did not – indeed, could not – guarantee that the charges would be dismissed without a

finding of guilt. See Code § 18.2-251 (“Upon violation of a term or condition, the court may

enter an adjudication of guilty and proceed as otherwise provided.”).



                                                -4-
       Accordingly, in accepting the plea agreement and deferred disposition, appellant accepted

the inherent risk that a conviction and lengthy sentence on the unrelated charges could result in

his being unable to comply with VASAP. Therefore, this Court holds that the trial court, after

“weigh[ing the] mitigating factors presented by [appellant],” Keselica, 34 Va. App. at 36, 537

S.E.2d at 613, did not abuse its discretion by finding appellant guilty under Code § 18.2-251.

       Nevertheless, appellant contends that his failure to fulfill his obligations under the plea

agreement should be excused. He argues that his obligation to comply with VASAP was

rendered “impracticable” by his incarceration. Appellant correctly notes that Virginia law, while

emphasizing constitutional issues, allows plea agreements to be construed in accordance with

principles of contract law:

               “In the process of determining whether disputed plea agreements
               have been formed or performed, courts have necessarily drawn on
               the most relevant body of developed rules and principles of private
               law, those pertaining to the formation and interpretation of
               commercial contracts. But the courts have recognized that . . . the
               defendant’s underlying ‘contract’ right is constitutionally based
               and therefore reflects concerns that differ fundamentally from and
               run wider than those of commercial contract law.”

Sandy v. Commonwealth, 25 Va. App. 1, 5, 486 S.E.2d 102, 104 (1997) (quoting United States

v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986)), rev’d on other grounds, 257 Va. 87, 509 S.E.2d

492 (1999). Continuing, appellant cites to § 266 of the Restatement (Second) of Contracts,

entitled “Existing Impracticability or Frustration,” which provides:

               (1) Where, at the time a contract is made, a party’s performance
                   under it is impracticable without his fault because of a fact of
                   which he has no reason to know and the non-existence of
                   which is a basic assumption of which the contract is made, no
                   duty to render that performance arises, unless the language or
                   circumstances indicate to the contrary.

               (2) Where, at the time a contract is made, a party’s principal
                   purpose is substantially frustrated without his fault by a fact of
                   which he has no reason to know and the non-existence of
                                                -5-
                   which is a basic assumption of which the contract is made, no
                   duty of that party to render that performance arises, unless the
                   language or circumstances indicate the contrary.

Assuming without deciding that these principles of contract law apply to the present case,

appellant’s argument still fails.

       Both subsections of § 266 of the Restatement (Second) of Contracts require that the

impracticability or frustration of purpose result because of “a fact of which [appellant] has no

reason to know.” (Emphasis added). In the present case, at the time appellant entered into a plea

agreement with the Commonwealth for a deferred disposition, he had been arrested for, and was

awaiting trial on, the unrelated charges. As such, he had a “reason to know” that his

performance under the agreement could be inhibited depending on the outcome of his unrelated

charges. Given these circumstances, appellant’s attempt to rely on § 266 of the Restatement

(Second) of Contracts to relieve his obligations under the plea agreement is to no avail.1

                                       III. CONCLUSION

       For the foregoing reasons, this Court affirms the ruling of the trial court.

                                                                                         Affirmed.




       1
          On appeal, appellant also argues for the first time that he could have complied with
VASAP had the services been provided to him through the Department of Corrections. While it
is true that Code § 18.2-251 allows for “substance abuse assessment . . . and . . . treatment”
programs to be provided “through the Department of Corrections,” appellant’s plea agreement
required him to complete VASAP through “New River Valley ASAP,” not through a “similar
program which is made available through the Department of Corrections.” Code § 18.2-251. As
appellant was currently incarcerated and aware of the possibility of continued incarceration when
he entered the plea agreement, he could have asked that the services be provided through the
Department of Corrections, but he did not. Furthermore, appellant failed to present this
argument before the trial court. As such, it is barred by Rule 5A:18. See Johnson v.
Commonwealth, 58 Va. App. 625, 637, 712 S.E.2d 751, 757 (2011) (“‘Making one specific
argument on an issue does not preserve a separate legal point on the same issue for review.’”
(quoting Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en
banc))).
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