PRESENT: All the Justices

MINH DUY DU
                                                                       OPINION BY
v. Record No. 151058                                            JUSTICE D. ARTHUR KELSEY
                                                                     September 22, 2016
COMMONWEALTH OF VIRGINIA


                       FROM THE COURT OF APPEALS OF VIRGINIA

       Minh Duy Du pleaded guilty to statutory rape of his 13-year-old half-sister, aggravated

malicious wounding of his father, and malicious wounding of his stepmother. Du filed a petition

for appeal with the Court of Appeals, contending that the trial court abused its discretion by

ordering lifetime probation following his incarceration and by ordering no contact with the

victims as a condition of his suspended sentences. The Court of Appeals denied Du’s petition

for appeal in a per curiam order, holding the trial court did not abuse its discretion. We agree

and affirm.

                                                  I.

       Du was born in Vietnam. He never knew his father, who immigrated to the United States

when Du was a small child. When Du tuned 18, Du’s father asked Du’s mother to inform Du

that his father was in the United States and that he wanted Du to live with him, his wife, and their

young daughter. Du accepted the offer and traveled to the United States in 2009, having had no

previous relationship with his father, his father’s wife, or their daughter. He did not know any of

them prior to his arrival in the United States. J.A. at 165.

       At some point after his arrival, Du developed “a big grudge” against his father and

stepmother, “got really mad,” and then “left” their home with no apparent intention of returning.

Id. at 127. Thereafter, in 2013, four years after Du’s arrival to the United States, Du returned to

his father’s home and entered through a window of his half-sister’s bedroom. She was 13 years
old at that time. Du, then 22 years old, engaged in vaginal and oral sex with her. 1 When her

mother discovered Du naked in her daughter’s bedroom, her attempt to intervene led to a fight

between Du, his stepmother, and his father. Du ended the episode by taking a metal baseball bat

and striking his father and stepmother multiple times in their heads, knocking both unconscious.

A portion of the attack was recorded by a surveillance camera the family had installed in their

home. As they lay on the floor bleeding, Du told his half-sister, “They’re dead.” Id. at 69.

When the stepmother unexpectedly regained consciousness, Du again struck her in the head with

the baseball bat causing her to fall again to the floor unconscious.

       Both Du’s father and stepmother sustained serious injuries. His father was flown to a

Roanoke hospital where a neurosurgeon stated that the father was in the process of “dying” due

to his head injury. Id. at 70. Surgeons performed a craniotomy to remove a portion of the

father’s skull. His condition continued to worsen, and, as of the time of trial, Du’s father was

receiving full-time care at a nursing home and was “dependent on others for daily living

activities.” Id. His head injuries have severely damaged his cognitive capacities, leaving him at

times unable to recognize his wife and daughter when they visit him.

       Du’s stepmother was also severely injured. The blows to her head from the baseball bat

required 11 stitches to close the wound and extensive follow-up care. Since the attack, she has

suffered from chronic panic attacks, emotional instability, insomnia, and a lingering sense of

paranoia. She was unable to work as a tailor for three months during her recovery period and has

incurred, along with her husband, non-reimbursable medical expenses.




       1
          On brief, Du claims the sexual encounter was consensual. Documents presented to the
trial court upon sentencing, however, included an interview with the child victim in which she
stated that she unsuccessfully tried to “get out” of the room, hoping “he might let [her] go and
wouldn’t hurt [her].” J.A. at 127-28.


                                                 2
       Prior to trial, Du wrote several letters to his father and stepmother attempting to obstruct

the ongoing investigation of his charges and to keep them from testifying against him at trial.

Stating that he had received advice from “other inmates,” Du wrote:

               I am writing this quick letter in hopes and asking that you will not
               answer the detectives’ questions nor make a statement and please
               do not appear in court on 1/22/14. That is the first day, after the
               second day, I hope that mother will not appear. Dear mother, after
               2 miss[ed] court appearances, the case will be dropped and the
               charges will be dismissed therefore the courts will let me go. That
               is the first thing that I eluded [sic] to in my previous letters and the
               1/22/14 date is closely approaching.
                                                ....

               I am writing this letter to you concerning the upcoming court
               appearance 1/22/14. . . . I am requesting that mother and father do
               not answer the detectives’ questions prior to 1/22/14 and I am
               asking that mother and father do not appear in court on 1/22/14
               until I can retain another attorney.
                                                ....

               I have asked a few other inmates and they said the best way for me
               to get an opportunity to return home to father and mother is 1. to
               ask mother not to appear in court on the first court date
               1/22/14. The courts will appoint another date and if father and
               mother do not appear again then the courts will dismiss the case.
               2. [I]f father and mother do appear in court and the courts ask you
               to recall the events, then all father and mother have to say is “I
               want PLEA TO THE 5th (fifth)” it is the right to refuse to make a
               statement. Just answer the questions pertaining to your address,
               name, birth date, social security number, etc. . . . [I]f the courts or
               anyone ask you mother and father about the events or your
               health, the hospital or anyone ask about the events or any aspects
               pertaining to the situation, all father and mother have to say is “I
               want PLEA TO THE 5th” and I will do the same. Except stating
               my name, age and address, I will also only respond, “I want PLEA
               TO THE 5th”. Those [are] the words of advice from the inmates
               that have been incarcerated for a long time.
                                                 ....

               [P]lease give me word that you will not make accusations against
               me in court. . . .

Id. at 87-90 (emphases added).


                                                  3
       Du’s father and stepmother did not respond to these letters. Nor did they take his several

phone calls. His last letter expressed his ongoing dissatisfaction with her failure to comply with

his demands: “At the court appearance you could have asked the courts to pardon me and

request bond; however, you still have not granted me that request.” Id. at 90.

       Having failed in his attempt to pressure his father and stepmother into obstructing the

prosecution, Du decided to plead guilty to statutory rape of his 13-year-old half-sister,

aggravated malicious wounding of his father, and malicious wounding of his stepmother. At his

sentencing hearing, the Commonwealth offered into evidence the victim impact statements,

including one from Du’s stepmother. The trial court received the victim impact statements and

made them part of the evidentiary record. See id. at 156-58.

       Du’s counsel represented that the stepmother was present in the courtroom, but she was

never called to testify at the sentencing hearing. Her victim impact statement, however,

expressed her views clearly. 2 In her statement, she said that she remembered her daughter,

immediately after the beating, pleading with Du to “leave immediately.” Victim Impact

Statement at 1. 3 Appearing “very calm,” Du responded, “Don’t panic, they are dead.” Id. As

the stepmother struggled to remain semi-conscious, she worried that she and her husband would

both die and that their daughter “would fall into [Du’s] hand.” Id. “Ever since this incident,” the

stepmother explained, “I have lived in constant fear. Every day is a constant reminder of that

horrible night.” Id. She has had nightmares “every night” since the beating, and on “[m]any

nights” she “can see [Du] beating [her] and taking a knife to slit [her] throat.” Id. She

       2
          The prosecutor brought the stepmother’s victim impact statement to the attention of the
trial court at various points in the sentencing hearing. See, e.g., id. at 156-58, 160, 166-67.
       3
          The trial court sealed the victim impact statements, pursuant to Code § 19.2-299.1. To
the extent that we mention facts found only in the sealed record, we unseal only those specific
facts, finding them relevant to our decision in this case. The remainder of the previously sealed
record remains sealed.


                                                 4
continued, “I constantly imagine that [Du] is hiding in the corners of the house and could jump

out to beat and kill me.” Id. This constant, chronic state of fear has left her “deteriorated” and

“very discouraged.” Id. at 2.

       At no point in the stepmother’s statement did she say anything that could be interpreted

as a desire to have an ongoing relationship with Du. Exactly the opposite is true. The

stepmother’s statement reveals that Du’s crimes against her, her husband, and her daughter have

left her in a constant state of fearful panic at the very thought of Du.

       At the sentencing hearing, the prosecutor confronted Du with “gruesome” pictures that he

had drawn of a “mother and daughter who have been injured.” J.A. at 163. The “mother’s arm

is hacked off, there’s blood, there seems to be a lot of violence” portrayed in the picture, the

prosecutor asserted. Id. In response, Du acknowledged his picture but explained he meant it

only as a “story” of the “sacrifice of a mother for her child.” Id.

       Upon hearing the evidence and Du’s allocution, the trial court stated that the “brutal

beating” Du had given his father and stepmother was “beyond understanding.” Id. at 169. The

court found Du’s attempt “to express shame or remorse” through his “huddled” demeanor wholly

unbelievable. Id. The court imposed a sentence of life imprisonment on the aggravated

malicious wounding charge, a 20-year sentence on the malicious wounding charge, and a 10-year

sentence on the statutory rape charge. The active period of incarceration, after the court

suspended portions of these sentences, required Du to serve 50 years in the penitentiary. The

court placed Du, upon release from imprisonment, on probation for the remainder of his life.

       Given the unique circumstances of the case, the trial court also conditioned Du’s

suspended sentences on the requirement that he have “no contact with any of the three victims.”

Id. at 170. After the court announced that condition, the prosecutor — unaccompanied by any




                                                  5
supportive remarks by Du’s defense counsel — stated that Du’s stepmother “requested that it not

be ordered for her.” Id. No other explanation was given. Nothing in the record, save this one

sentence, discussed the point further.

       Earlier in the sentencing hearing, Du’s counsel had represented to the trial court that the

stepmother was present in the courtroom. Id. at 165. At no point during the hearing, however,

did she personally explain her view of the no-contact condition. Nor did the prosecutor offer any

clarification of what the stepmother meant, why she felt that way, or how she came to that

decision. The court, however, responded with its own clarification: “I don’t want him to have

any contact with her. . . . If she wishes to write him she can.” Id. at 170. Du’s counsel did not

object to the court’s ruling or make any response to it.

       After the entry of the final sentencing order, Du filed a motion to reconsider seeking to

undo the court’s imposition of lifetime probation as well as the condition forbidding him from

contacting the victims. Du’s motion did not state that counsel had consulted his stepmother

about the motion or that she joined in Du’s requested relief. Nor did Du’s stepmother seek leave

to file any pleading on her own behalf. The court denied the motion to reconsider, holding that

the severity of the crimes and the impact they had on the victims justified the sentencing

conditions.

       With respect to the no-contact condition, the court stated that it “discounted” the proffer

made by the prosecutor concerning the stepmother’s views. Id. at 225. The court “took into

account the family dynamic” and again clarified that the no-contact condition did not bar the

stepmother from contacting Du. Id. “The reason for this restriction,” the court explained, “is

that in earlier stages of the proceeding, [Du] communicated with the victims and attempted to

entice them to fail to appear and to fail to cooperate with the prosecution.” Id. at 226. The court




                                                 6
continued, “Such attempts are indicative to the Court that [Du] may attempt, at some point, to

entice the victims to recant their stories or somehow affect the validity of [his] convictions.” Id.

The court also explained that it would “not attempt to pre-judge what might happen in the event

of a violation” of the condition by Du. Id. at 225. The court stated that its “interest in protection

of those victims and of society” was “not unreasonable” given the “horribly violent and

unprovoked offenses,” Du’s persistent “attempts to obstruct the investigation and prosecution of

the offenses,” and Du’s “demeanor at sentencing.” Id. at 226.

       Du filed a petition for appeal with the Court of Appeals, arguing that the trial court

abused its discretion by ordering lifetime probation and imposing a no-contact condition on his

suspended sentences. The Court of Appeals disagreed and issued a per curiam order denying

Du’s petition. We granted his petition for appeal to address both of his challenges to the trial

court’s sentencing order.

                                                 II.

                            A. THE ABUSE OF DISCRETION STANDARD

       Criminal sentencing decisions are among the most difficult judgment calls trial judges

face. The sometimes conflicting penological goals involved in such decisions defy precise

measurements. Because this task is so difficult, it must rest heavily on judges closest to the facts

of the case — those hearing and seeing the witnesses, taking into account their verbal and non-

verbal communication, and placing all of it in the context of the entire case.

       Such decisions — if within the lawful boundaries of applicable sentencing statutes and

constitutional limitations — are vested in the sound discretion of trial judges, not appellate

judges. See generally John L. Costello, Virginia Criminal Law and Procedure § 63.3[5], at 1113

(4th ed. 2008). In an indeterminate sentencing model “not subject to established criteria, except

for the statutory framework that set its outer limits,” an appellate court simply has no principled


                                                  7
“standards it could invoke to determine whether a particular sentence was excessive in length or

otherwise inappropriate.” 6 Wayne R. LaFave et al., Criminal Procedure § 26.3(g), at 945 (4th

ed. 2015).

       The same can be said for the constituent aspects of the trial court’s sentencing decisions,

such as those regarding the suspension of active sentences and the imposition of a term of

probation. Code § 19.2-303 authorizes reasonable conditions upon the suspension of sentences,

including any period of probation. Absent an alleged statutory or constitutional violation, “[t]he

sole statutory limitation placed upon a trial court’s discretion in its determination of such

conditions is one of reasonableness.” Anderson v. Commonwealth, 256 Va. 580, 585, 507 S.E.2d

339, 341 (1998) (citing Dyke v. Commonwealth, 193 Va. 478, 484, 69 S.E.2d 483, 486 (1952)

(decided under predecessor statute)).

       The reasonableness standard takes into account the “nature of the offense, the defendant’s

background, and the surrounding circumstances.” Murry v. Commonwealth, 288 Va. 117, 122,

762 S.E.2d 573, 576 (2014). When exercising its discretionary power, however, the trial court

“has a range of choice, and its decision will not be disturbed as long as it stays within that range

and is not influenced by any mistake of law.” Lawlor v. Commonwealth, 285 Va. 187, 212-13,

738 S.E.2d 847, 861 (2013) (alteration and citation omitted). The exercise of discretion thus

presupposes “that, for some decisions, conscientious jurists could reach different conclusions

based on exactly the same facts — yet still remain entirely reasonable.” Thomas v.

Commonwealth, 62 Va. App. 104, 111, 742 S.E.2d 403, 407 (2013) (citation omitted). “This

bell-shaped curve of reasonability governing our appellate review rests on the venerable belief

that the judge closest to the contest is the judge best able to discern where the equities lie.”

Sauder v. Ferguson, 289 Va. 449, 459, 771 S.E.2d 664, 670 (2015) (citation omitted).




                                                  8
       It necessarily follows that an abuse of discretion cannot be shown merely because

“[r]easonable trial judges and even some members of this Court, had they been sitting as trial

judges in this case,” might have reached a different conclusion than the one under review. Coe v.

Commonwealth, 231 Va. 83, 88, 340 S.E.2d 820, 823 (1986). “Only when reasonable jurists

could not differ can we say an abuse of discretion has occurred.” Grattan v. Commonwealth, 278

Va. 602, 620, 685 S.E.2d 634, 644 (2009) (citation omitted). 4

                                    B. LIFETIME PROBATION

       A Virginia trial court “clearly” acts within the scope of its sentencing authority “when it

chooses a point within the permitted statutory range” at which to fix punishment. Alston v.

Commonwealth, 274 Va. 759, 771, 652 S.E.2d 456, 463 (2007). In cases where the argument on

appeal is simply a challenge to the duration of imprisonment, we have consistently held that the

sentencing statutes define the outer boundaries of the bell-shaped curve of reasonableness.

Consequently, “when a statute prescribes a maximum imprisonment penalty and the sentence

does not exceed that maximum, the sentence will not be overturned as being an abuse of

discretion.” Id. at 771-72, 652 S.E.2d at 463 (quoting Abdo v. Commonwealth, 218 Va. 473,

479, 237 S.E.2d 900, 903 (1977)). 5 In this respect, our view adheres to the “general proposition

that once it is determined that a sentence is within the limitations set forth in the statute under




       4
          See also AME Fin. Corp. v. Kiritsis, 281 Va. 384, 393, 707 S.E.2d 820, 824 (2011) (“In
evaluating whether a trial court abused its discretion, ‘we do not substitute our judgment for that
of the trial court.’” (quoting Beck v. Commonwealth, 253 Va. 373, 385, 484 S.E.2d 898, 906
(1997))); Noll v. Rahal, 219 Va. 795, 801, 250 S.E.2d 741, 745 (1979).
       5
         See also Williams v. Commonwealth, 270 Va. 580, 584, 621 S.E.2d 98, 100 (2005);
Perry v. Commonwealth, 208 Va. 283, 289, 156 S.E.2d 566, 571 (1967). Criminal convictions,
however, still remain subject to review and modification by the Governor consistent with his
executive clemency powers. See Va. Const. art. V, § 12; Code § 53.1-229.


                                                  9
which it is imposed, appellate review is at an end.” Dorszynski v. United States, 418 U.S. 424,

431 (1974).

       In this case, the statutory maximum sentences applicable to Du’s three criminal

convictions — aggravated malicious wounding of his father, malicious wounding of his

stepmother, and statutory rape of his half-sister — added up to life imprisonment plus 30 years.

If the trial court had imposed a life sentence, Du’s claim that the sentences were excessive would

necessarily fail. Because the imposition of lifetime probation is far less severe than life

imprisonment, a fortiori, Du’s claim that the imposition of lifetime probation was excessive

likewise fails. We thus reject Du’s challenge that the trial court’s decision to order lifetime

probation, following Du’s 50 years of active incarceration, constituted an abuse of discretion. 6

                                 C. NO-CONTACT CONDITION

       Du next contends that the trial court abused its discretion in ordering him, as a condition

of his suspended sentences, not to contact his victims. 7 We will address this argument only as it



       6
          One of the three crimes Du committed was statutory rape of his 13-year-old half-sister.
As we have emphasized, “the Commonwealth has the legitimate concern that a probationer is
more likely to engage in criminal activities than an ordinary citizen. This concern is heightened
when, as here, a probationer is a sex offender.” Murry, 288 Va. at 127, 762 S.E.2d at 579
(citation omitted). We have also recognized “elevated public safety concerns with ‘the crime of
child molestation,’ which all too often goes unreported.” Id. (citation omitted).
       7
          Du also argues that the no-contact provision in Code § 19.2-303 relating to gang
members “preclude[s] the finding that a prohibition on contact between non-gang members could
be reasonable” because the gang provision “prohibits members of a criminal street gang from
being barred from contact with members of their family or household who may be fellow gang
members unless the trial court makes a specific finding that such a prohibition is necessary.”
Appellant’s Br. at 12-13. Du attempts to invoke the negative-implication canon, expressio unius
est exclusio alterius. We find it inapplicable. Code § 19.2-303 permits the suspension of
sentences “under such conditions as the court shall determine,” and “[t]he sole statutory
limitation placed upon a trial court’s discretion in its determination of such conditions is one of
reasonableness.” Anderson, 256 Va. at 585, 507 S.E.2d at 341. It is thus “clearly apparent . . .
that the legislature did not in fact intend that its express mention of one thing should operate as
an exclusion of all others,” and the expressio unius est exclusio alterius “maxim must give way.”


                                                 10
relates to his stepmother. 8 We agree with the Court of Appeals that Du’s argument on this issue

is meritless.

        The trial court ordered the no-contact condition after taking “into account the family

dynamic” and recalling the “earlier stages of the proceeding” in which Du “communicated with

the victims and attempted to entice them to fail to appear and to fail to cooperate with the

prosecution.” J.A. at 225-26. Among the court’s concerns was that Du might later attempt to

entice the victims into recanting in hopes of manufacturing some basis for challenging his

conviction. Id. at 226.

        Addressing directly the no-contact condition as it applied to the stepmother, the court

expressly “discounted” the prosecutor’s proffer of the stepmother’s wishes and correctly

observed that it was not binding. Id. at 225. The court did not elaborate on the specific reason

for discounting the proffer. We need not determine the precise reason, however, because we

may rely upon any reasonable basis in the record that supports the trial court’s decision. See

Haynes v. Haggerty, 291 Va. 301, 305, 784 S.E.2d 293, 294 (2016) (upholding a judgment on

grounds evident in the record though not specifically relied upon by the trial court). In this

respect, our appellate review “is not limited to the evidence mentioned by a party in trial

argument or by the trial court in its ruling.” Perry v. Commonwealth, 280 Va. 572, 580, 701

S.E.2d 431, 436 (2010) (quoting Bolden v. Commonwealth, 275 Va. 144, 147, 654 S.E.2d 584,

586 (2008)); see also Commonwealth v. Jenkins, 255 Va. 516, 522, 499 S.E.2d 263, 266 (1998).




Henry Campbell Black, Handbook on the Construction and Interpretation of the Laws § 72, at
220 (2d ed. 1911).
        8
          In the trial court, Du limited his challenge to the no-contact condition only as it applied
to his stepmother. See J.A. at 222 (addressing only the “imposition of a lifetime ban on contact
with the stepmother”). We thus do not address his argument on appeal to the extent applicable to
his father or his half-sister. See Rule 5:25.


                                                 11
        The record provides ample grounds for the trial court’s decision to discount the

prosecutor’s proffer of the stepmother’s wishes. At the time the proffer was made, the court was

aware that the stepmother had exercised her statutory right to submit a victim impact statement

(handwritten in Vietnamese by the stepmother and translated into English by an interpreter) for

the very purpose of providing her input into the court’s sentencing decision. See Code § 19.2-

11.01(A)(4)(a). That lengthy written statement detailed the following for the court:

               As the stepmother struggled to remain semi-conscious during Du’s
                beating, she worried that she and her husband would both die and
                that their daughter “would fall into [Du’s] hand.” Victim Impact
                Statement at 1.

               “Ever since this incident,” the stepmother explained, “I have lived in
                constant fear. Every day is a constant reminder of that horrible
                night.” Id.

               She has had nightmares “every night” since the beating, and on
                “[m]any nights” she “can see [Du] beating [her] and taking a knife
                to slit [her] throat.” Id.

               She “constantly imagine[s] that [Du] is hiding in the corners of the
                house and could jump out to beat and kill [her].” Id.

               This constant, chronic state of fear has left her “deteriorated” and
                “very discouraged.” Id. at 2.

        At no point in the stepmother’s statement did she express a desire to have an ongoing

relationship with Du. To the contrary, her statement reveals that his crimes have left her in a

constant state of fearful panic at the very thought of him. It seems improbable that the

prosecutor’s brief proffer could ever be persuasively reconciled with the stepmother’s statement

that she “constantly imagine[s] that [Du] is hiding in the corners of the house” ready to “jump

out to beat and kill” her. Id. at 1.

        Given the weakness of the prosecution’s proffer and the strength of the stepmother’s

victim impact statement, a trial court exercising its sound discretion could conclude that the



                                                 12
stepmother was uniquely vulnerable to the possibility that Du would try to “entice” her to

“recant” in support of his likely challenge to the “validity” of his convictions. J.A. at 226. 9 Du

had earlier attempted to manipulate her into abandoning the prosecution. It was quite reasonable

for the court to infer that Du might continue that same effort during his many years of

imprisonment. Like the Court of Appeals, we see no principled basis to declare the trial court’s

decision on this issue to be an abuse of discretion. 10

                                                  III.

       In sum, we find no merit in Du’s challenge of his lifetime probation and the no-contact

condition of the sentencing order. We thus affirm the judgment of the Court of Appeals

upholding the trial court’s sentencing order.

                                                                                             Affirmed.


JUSTICE POWELL, concurring in part and dissenting in part.

       This is a horrible case which might tempt reasonable jurists to do things that they might

not ordinarily do. I agree with the majority that the trial court did not abuse its discretion in

       9
         Other state courts have held no-contact conditions to be reasonable for analogous
reasons. See, e.g., People v. Jungers, 25 Cal. Rptr. 3d 873, 878-79 (Cal. Ct. App. 2005)
(upholding a condition of no contact with the victim as reasonable because of “[t]he state’s
compelling interest in protecting victims of domestic violence”); West v. State, 287 S.E.2d 694,
695-96 (Ga. Ct. App. 1982) (holding a no-contact condition with victims of crimes to be
reasonable); State v. Perfetto, 7 A.3d 1179, 1183 (N.H. 2010) (holding a condition of no contact
with children for defendant convicted of child pornography to be reasonable because it “provides
protection to the class of individuals exploited by him and furthers his rehabilitation by limiting
the circumstances which could lead to his reoffending”).
       10
           The trial court’s no-contact condition — like our opinion affirming it — should not be
interpreted too broadly. The fact that, at some later revocation hearing, a trial court might
determine that a condition on a suspended sentence has been breached does not ipso facto mean
that all or part of the suspended sentence necessarily will be revoked. It means only that the
suspension may be vacated to whatever degree the circumstances of the violation warrant. The
trial court in this case understood this point, explaining that it would “not attempt to pre-judge
what might happen in the event of a violation” of the condition by Du. J.A. at 225.


                                                  13
ordering lifetime probation. I also agree with the majority that a criminal sentencing is among

the most difficult judgment calls that a trial court faces. I am aware of the high hurdle imposed

by an abuse of discretion standard and wholly subscribe to the notion that, in most cases, it is the

trial judge in the courtroom who is best suited to make many decisions, not the least of which is a

sentencing decision. Finally, I agree with the majority that, when it comes to the appeal of a

sentencing order, an appellate court should tread with great care. It is against this backdrop of

understanding that I simply cannot agree with the majority’s analysis of the no-contact condition.

While I can understand why one might wish to impose a no-contact condition in this case, in my

opinion when the record is properly evaluated, the imposition of the no-contact condition with

regard to the stepmother was an abuse of discretion. 1 Accordingly, I respectfully dissent.

       Code § 19.2-303 provides that “[a]fter conviction . . . the court may suspend imposition

of sentence or suspend the sentence in whole or part and in addition may place the defendant on

probation under such conditions as the court shall determine.” This Court has recognized that

Code § 19.2-303 provides trial courts with significant latitude in the terms and conditions that

may be imposed, subject to a single limitation: the terms and conditions must be reasonable.

Anderson v. Commonwealth, 256 Va. 580, 585, 507 S.E.2d 339, 341 (1998). However, the

question of reasonableness cannot be determined in a vacuum. Indeed, conditions that are

reasonable in one case may be wholly inappropriate for another. Accordingly, we have

recognized that the imposed conditions “must be reasonable in light of the nature of the offense,

the defendant's background, and the surrounding circumstances.” Murry v. Commonwealth, 288

Va. 117, 122, 762 S.E.2d 573, 576 (2014). Additionally, because the principles of suspension



       1
          I agree with the majority that, having limited his challenge to the no-contact condition
as it applied to his stepmother, Du has waived any challenge to the no-contact condition as it
applies to his father and half-sister. See Rule 5:25.


                                                 14
and probation provide remedial tools to use in the rehabilitation of criminals and the protection

of the community, logic dictates that the imposed conditions must also be “‘reasonably related to

rehabilitation . . . and to the deterrence of future criminal conduct.’” Id. (quoting Jones v. State,

41 P.3d 1247, 1258 (Wyo. 2002)). See also United States v. Kebodeaux, 570 U.S. ___, ___, 133

S. Ct. 2496, 2504 (2013) (noting that the “principal purposes of postrelease conditions are to

rehabilitate the convict, thus preventing him from recidivating, and to protect the public”);

Griffin v. Wisconsin, 483 U.S. 868, 875 (1987) (“[R]estrictions [imposed by a court] 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.”); Peyton v. Commonwealth, 268 Va. 503, 508,

604 S.E.2d 17, 19 (2004) (“Statutes that permit the trial court to impose alternatives to

incarceration, such as probation or conditionally suspended sentences, are highly remedial and

should be liberally construed to provide trial courts valuable tools for rehabilitation of

criminals.”).

       “We review conditions of probation imposed by a trial court as part of its sentencing

determination for abuse of discretion.” Murry, 288 Va. at 122, 762 S.E.2d at 576.

                A trial court abuses its discretion “when a relevant factor that
                should have been given significant weight is not considered; when
                an irrelevant or improper factor is considered and given significant
                weight; [or] when all proper factors, and no improper ones, are
                considered, but the court, in weighing those factors, commits a
                clear error of judgment.”

Id., 288 Va. 117, 122, 762 S.E.2d 573, 576 (2014) (quoting Landrum v. Chippenham &

Johnston-Willis Hosps., Inc., 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011)).

       In the present case, the majority asserts that the trial court’s decision was reasonable

because “a trial court exercising its sound discretion could conclude that the stepmother was

uniquely vulnerable to the possibility that Du would try to ‘entice’ her to ‘recant’ in support of



                                                  15
his likely challenge to the ‘validity’ of his convictions.” In coming to this conclusion, the

majority never fully considers the most relevant factors: whether the no-contact condition is

“reasonable in light of the nature of the offense, the defendant's background, and the surrounding

circumstances” or whether the no-contact condition is “‘reasonably related to rehabilitation . . .

and to the deterrence of future criminal conduct.’” Murry, 288 Va. at 122, 762 S.E.2d at 576

(quoting Jones, 41 P.3d at 1258).

       When viewed in light of the Murry factors, it appears to me that the no-contact condition

was unreasonable and, therefore, the trial court abused its discretion. The record demonstrates

that Du only has a significant bond with three people in this country: his father, his stepmother

and his half-sister. Of those three, only his stepmother expressed her desire to allow contact with

Du. To effectively isolate Du from the only person in this country who has a significant bond

with him and who has affirmatively indicated that she wishes to remain in contact with him 2 is,

in my judgment, unreasonable. 3

       Furthermore, it cannot be said that the no-contact condition serves any rehabilitative

purpose. Such a ban does not, in any way, promote good behavior or deter Du from future


       2
         Although the majority characterizes the Commonwealth’s proffer of the stepmother’s
request to allow Du to contact her as weak, it is only relevant that the request was unequivocally
made. Similarly, whether the request can be reconciled with the victim impact statement is not
particularly relevant to whether the no-contact condition was reasonable.
       3
         To be clear, I am not saying that the no-contact condition is patently unreasonable
simply because the stepmother requested that Du be allowed to have contact with her. Rather,
my analysis is limited to the facts of this case. Here, it is the combination of the stepmother’s
request and her awareness of the fact that Du shares a significant relationship with a particularly
small group of individuals due to his background that makes this condition unreasonable.
         I am also persuaded by the fact that this condition will similarly isolate the stepmother.
As her victim impact statement points out, she speaks limited English and she has few friends or
relatives in this country. While in no way discounting the horror of the encounter, in my opinion
the trial court should have given her wishes the appropriate consideration. Although I cannot say
that the trial court gave her wishes no consideration, it is apparent that the stepmother’s request
was given less consideration than other, less relevant factors.


                                                 16
crimes. Nor can it be said that it protects the public or his stepmother. Indeed, Du will remain

incarcerated for a minimum of 50 years regardless of whether he has contact with his stepmother,

thereby ensuring the safety of the public and his stepmother.

       Instead of considering the Murry factors, the majority simply examines whether the trial

court’s rationale for imposing the no-contact condition was logical and, finding that it was,

concludes that the condition was reasonable. However, in so doing, the majority overlooks the

peculiar circumstances of this case, namely that the trial court based its rationale on a possibility

that cannot come to pass under our jurisprudence. According to the trial court, the reason that it

imposed the no-contact condition is because

               in earlier stages of the proceeding, [Du] communicated with the
               victims and attempted to entice them to fail to appear and to fail to
               cooperate with the prosecution, even going so far as to tell them to
               “take the 5th.” Such attempts are indicative to the Court that [Du]
               may attempt, at some point, to entice the victims to recant their
               stories or somehow affect the validity of [Du’] convictions.

       I recognize that, in light of Du’s earlier attempts to convince the victims to not testify or

cooperate with the prosecution, the trial court’s concern that Du would engage in further

attempts to manipulate his stepmother was certainly justified. At the same time, however, the

facts of this case demonstrate that any concern the trial court may have about such manipulation

affecting the validity of Du’s conviction in any way is clearly misplaced. We have recognized

that “recantation evidence is generally questionable in character and is widely viewed by courts

with suspicion because of the obvious opportunities and temptations for fraud. Unless proven

true, recantation evidence merely amounts to an attack on a witness’ credibility by the witness

herself.” Carpitcher v. Commonwealth, 273 Va. 335, 346, 641 S.E.2d 486, 492 (2007) (citations

omitted). Given the fact that Du confessed to committing the crimes that he ultimately pled

guilty to, and that his confession is corroborated by evidence that does not rely on any victim



                                                 17
testimony (e.g., the video evidence of Du attacking his father and stepmother and the DNA

evidence indicating sexual contact with his half-sister), it is highly unlikely that he could prove

the truth of any recantation evidence. Thus, even if the trial court’s concern was realized and Du

was able to manipulate all three victims into recanting their stories, it would have no effect on

the validity of his conviction. In other words, it appears to me that the trial court based its

decision on a factor that was entirely irrelevant. This is one way in which we have

acknowledged that a trial court commits an abuse of the considerable discretion afforded it.

Murry, 288 Va. at 117, 762 S.E.2d at 576; Landrum, 282 Va. at 352, 717 S.E.2d at 137.

       Having determined that the trial court failed to consider the relevant factors (i.e., the

Murry factors) and gave significant weight to improper or irrelevant factors (i.e., speculation that

Du might try to manipulate his stepmother into recanting), I would find that the trial court abused

its discretion in imposing the no-contact condition with regard to Du’s stepmother. I, therefore,

would reverse the judgment of the Court of Appeals upholding the trial court’s sentencing order

and remand the matter for resentencing.




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