                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Alston, O’Brien and AtLee
UNPUBLISHED


              Argued at Fredericksburg, Virginia


              DION MICAH BLACKWELL
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1986-17-4                                  JUDGE RICHARD Y. ATLEE, JR.
                                                                               NOVEMBER 20, 2018
              COMMONWEALTH OF VIRGINIA


                                   FROM THE CIRCUIT COURT OF WARREN COUNTY
                                               Ronald L. Napier, Judge

                               D. Eric Wiseley (Struckmann, White & Wiseley PC, on briefs),
                               for appellant.

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


                     Appellant Dion Micah Blackwell pled guilty to possession of heroin with intent to

              distribute. A judge of the Circuit Court of Warren County (“trial court”) accepted his plea and

              sentenced him to five years in prison with six months suspended. On appeal, Blackwell argues

              the following:

                           1. The trial court erred when it admitted evidence in sentencing of
                              prior charges in Maryland for which appellant had not been
                              convicted.

                           2. The trial court erred when it departed upward from the guidelines
                              and refused to suspend any period of incarceration beyond that
                              which is required by statute because the Appellant is from
                              Baltimore.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
               3. The trial court erred when it refused to admit Appellant to
                  probation, CCAP,[1] or other alternative punishment because he is
                  from Maryland.

We disagree and affirm.

                                             I. BACKGROUND

         Blackwell arranged to bring six grams of heroin from Baltimore, Maryland to Front

Royal, Virginia. He made these arrangements with a “friend,” who unbeknownst to Blackwell

was acting as a confidential informant for the police. Law enforcement officers arrested

Blackwell and recovered the heroin from his person. He pled guilty, the trial court accepted his

plea, and ordered the preparation of a pre-sentence report (“PSR”).

         Blackwell had no prior convictions, but his PSR detailed seven prior or existing charges

in Baltimore, Maryland. Three of those charges had been nolle prosequied. The remaining four

charges were on the “Stet Docket.”2 No one at the sentencing hearing, including the trial court

judge, was certain as to what the Stet Docket was or could provide a definitive explanation. The

probation officer testified that her understanding was that it was “where cases go to die.”

Blackwell’s counsel agreed with the probation officer’s characterization, and further said that he

believed Stet Docket cases were ones in which no disposition was made, as there was “not a

good charge” or the prosecution was not interested in pursuing the matter. Blackwell objected to

the evidence about the charges on the Stet Docket because it did not show that he had been

convicted of those charges; however, there was no indication that they had been dismissed or

nolle prosequied.




         1
         “CCAP,” as used throughout this memorandum opinion, refers to the “Community
Corrections Alternative Program,” administered through the Virginia Department of Corrections.
         2
             The record refers to the “STE” docket, yet the parties agree that this is a typographical
error.
                                                   -2-
       Blackwell’s PSR stated that he was approved to participate in the CCAP, and he was

specifically recommended to participate in the Substance Abuse Program and Anger

Management. It also noted that, because he resides in Maryland, any supervised probation after

incarceration would require an Interstate Compact.

       At the sentencing hearing, an investigator from the Warren County Sheriff’s Office,

assigned to the Northwest Virginia Regional Drug Task Force, testified. He stated that cases of

heroin overdose in the county had doubled in the past year and that “ninety percent” of the

heroin in the area came from Baltimore.3

       The sentencing guidelines ranged from seven months of incarceration to one year, four

months, with a midpoint of one year. The Commonwealth asked the court to impose a five-year

sentence with no probation, in part because Blackwell could return to Baltimore if he were

placed on probation and that his prior criminal history showed that Maryland did not take drug

cases seriously. The Commonwealth argued that they should “send a message” that it is

“unprofitable . . . to bring their drugs into our community to sell.”

       After hearing Blackwell’s allocution and counsel’s arguments, the trial court sentenced

Blackwell to five years in prison. At a later hearing, it suspended six months of that sentence. In

its final disposition, the trial court noted that the “heroin epidemic” was the rationale for

departing from the guidelines.

                                            II. ANALYSIS

       “We review the trial court’s sentence for abuse of discretion. Given this deferential

standard of review, we will not interfere with the sentence so long as it ‘was within the range set

by the legislature’ for the particular crime of which the defendant was convicted.” Scott v.


       3
          No one objected to this statement before the trial court. As such, reviewing the facts in
the light most favorable to the Commonwealth, we credit it on appeal. Pijor v. Commonwealth,
294 Va. 502, 516, 808 S.E.2d 408, 415 (2017).
                                               -3-
Commonwealth, 58 Va. App. 35, 46, 707 S.E.2d 17, 23 (2011) (citations omitted) (quoting Jett v.

Commonwealth, 34 Va. App. 252, 256, 540 S.E.2d 511, 513 (2001)).

                         A. Consideration of Existing Stet Docket Charges

       In his first assignment of error, Blackwell argues the trial court erred in admitting the

PSR, containing the Stet Docket charges, because he “had not yet been convicted” of them.

Despite this language used in his assignment of error, he states in his reply brief and

acknowledged at oral argument that he does not, in fact, object to admission of the PSR, or the

inclusion of the Stet Docket charges in it. Rather, his argument concerns the trial court’s use of

those charges at sentencing and the Commonwealth’s failure to present adequate evidence of

what the Stet Docket was. This discrepancy is fatal to Blackwell’s argument, as his assignment

of error does not encompass the argument he makes on appeal. Thus, we do not consider it.

Rule 5A:20(c); see also Carroll v. Commonwealth, 280 Va. 641, 649, 701 S.E.2d 414, 418

(2010) (finding that appellant failed to “lay his finger on the error” argued on brief in his

questions presented (now assignments of error)); Winston v. Commonwealth, 51 Va. App. 74, 81

n.4, 654 S.E.2d 340, 345 n.4 (2007) (“As appellant did not include this argument in his questions

presented [(now assignments of error)], we will not address it on appeal.”). Accordingly, we do

not consider Blackwell’s argument on the trial court’s alleged consideration of the Stet Docket

charges at sentencing.

                    B. Effect of Baltimore Residency on Blackwell’s Sentence

       Blackwell makes two arguments regarding the purported effect of his Baltimore

residency upon the duration of his sentence. First, he argues that the trial court erred in departing

upwards from the PSR’s recommended sentence because of his Baltimore residency. Second, he

argues that the trial court erred in refusing to admit Blackwell to probation, CCAP, or “other

alternative punishment,” purportedly because he is from Baltimore.

                                                -4-
       As part of both of these arguments, Blackwell contends that there was a racial component

to any comments about his being from Baltimore — specifically, that they were oblique

references to his being “an urbanite African-American.” In arguing this, Blackwell relies upon

two moments from the sentencing hearing. Specifically, Blackwell argues that the prosecution

gestured to the gallery when referencing how a longer sentence could “send a message” to

Blackwell’s “family and friends” in Maryland.4 According to Blackwell, everyone in the gallery

was African-American. Yet the record reflects neither of these facts — the gesture nor the race

of the gallery members. In view of the record’s silence, we cannot rely upon these allegations as

evidence of racial bias. See Jackson v. Commonwealth, 44 Va. App. 218, 224, 604 S.E.2d 122,

125 (2004) (“An appellate court must dispose of the case upon the record and cannot base its

decision upon appellant’s petition or brief, or statements of counsel in open court. We may act

only upon facts contained in the record.” (quoting Smith v. Commonwealth, 16 Va. App. 630,

635, 432 S.E.2d 2, 6 (1993))).

       Blackwell’s allegations that his sentence was racially motivated also rest upon an

exchange between counsel during closing arguments. In response to the Commonwealth’s

closing argument about “sending a message” to Maryland residents about bringing drugs into

Virginia, Blackwell’s counsel retorted: “I hope that Maryland isn’t a euphemism for something

else. I hope saying he is from Baltimore is not just some sort of euphemism they are throwing

around and saying that this guy needs to be treated this way because of the fact that he is from

Baltimore.” The Commonwealth responded: “Maryland . . . It is a euphemism. Maryland . . .

His record shows that Maryland doesn’t take doing drug cases seriously and because of that I




       4
       Blackwell’s mother testified at the sentencing hearing, during which she identified
Blackwell’s other family members in the gallery.
                                             -5-
would be concerned about him being on probation in Maryland. Quite frankly, it is more about

sending a message.” (Ellipses in original.)

        As a preliminary matter, Blackwell failed to make this specific argument before the trial

court. See Rule 5A:18. In addition, many facts — specifically, the alleged gesture to the

all-African-American gallery — upon which his argument depends are not in the record. His

argument, even had he preserved it, thus relies solely upon the exchange between opposing

counsel regarding whether any reference to his Baltimore residency was a “euphemism.” Yet

even that exchange does not address race. Assuming the transcript accurately reflects the

exchange and the prosecution intended to acknowledge that “Maryland . . . is a euphemism,” the

prompt explanation of that “euphemism” was that it stands for the state not taking “drug cases

seriously,” not Blackwell’s race.

        Finally, the record does not show that the trial court based its upward departure upon

Blackwell being from Baltimore, much less his race. Instead, the trial court noted that the reason

it departed upwards from the recommended sentencing guideline range was the “heroin

epidemic.” This comports with the evidence presented regarding the amount of heroin coming

into the area, its increasingly devastating impact upon the region, taken with the fact that

Blackwell brought in a large amount of heroin — enough for 60 to 120 doses. Though the trial

court, when imposing Blackwell’s sentence, noted that the prosecution’s arguments were

“well-founded,” it did not specifically note which, of the many arguments presented, it referred

to, and it did not mention Blackwell’s Baltimore residency. Thus, we take the trial court at its

word and presume its stated rationale for departing from the discretionary guidelines — the

heroin epidemic — was, in fact, its actual rationale, rather than Blackwell’s city of residence or

his race.




                                                -6-
       As to Blackwell’s argument that the trial court erred in declining to consider or impose

alternative punishment like CCAP or probation,5 “[w]e have previously ‘noted the wide latitude

the legislature has afforded trial courts in fashioning rehabilitative programs for defendants.’”

Hunter v. Commonwealth, 56 Va. App. 582, 587, 695 S.E.2d 567, 569-70 (2010) (quoting

Nuckoles v. Commonwealth, 12 Va. App. 1083, 1085, 407 S.E.2d 355, 356 (1991)). A

defendant is not entitled to probation; rather, it “represents ‘an act of grace on the part of the

Commonwealth to one who has been convicted and sentenced to a term of confinement.’” Id. at

587, 695 S.E.2d at 569 (quoting Price v. Commonwealth, 51 Va. App. 443, 448, 658 S.E.2d 700,

703 (2008)). Putting aside the fact that the record contains no indication that the trial court failed

to consider alternatives to incarceration, or that it declined to impose them on the grounds

Blackwell alleges, it did not abuse its discretion in not imposing such alternatives. In fact, there

were numerous reasons the trial court could have determined that CCAP was not appropriate in

Blackwell’s case. First, the probation officer determined that CCAP is meant for “medium to

high-risk offenders” and that her understanding was that it “really want[s] to focus on even more

at-risk” offenders than Blackwell.6 Furthermore, in arguing that Blackwell should be put in the

CCAP, defense counsel admitted “I don’t know much about it,” except that it is


       5
          There appears to be a discrepancy between Blackwell’s assignment of error and his own
characterization of his argument. He assigned error to the trial court “refus[ing] to admit
[Blackwell] to probation, CCAP, or other alternative punishment because he is from Maryland”;
however, he clarifies in his reply brief that he “does not argue the trial court erred not to impose
alternatives to incarceration,” but that it “erred not to consider alternatives to incarceration on
grounds [Blackwell] was from Baltimore, Maryland.” (Emphasis added.) Thus, Blackwell’s
assignment of error does not encompass what he claims to argue. Nevertheless, given that
Blackwell’s argument appears to comport with his assigned error, we decline to find this
procedurally defaulted under Rule 5A:20(c), and instead address it on the merits.
       6
         She further explained that the issue with the previous “Detention and Diversion”
programs was that “a lot of low-risk offenders were going in . . . so when they had someone who
really needed to be in the program which was at medium or high risk there wasn’t a bed
available.”

                                                 -7-
“evidence-based” and includes job training. Accordingly, the trial court did not abuse its

considerable discretion in declining to order Blackwell participate in CCAP, probation, or other

alternative punishments.7

                                        III. CONCLUSION

       Blackwell failed to preserve his argument regarding his Stet Docket offenses, and the trial

court did not err in sentencing Blackwell to five years in prison with six months suspended, or in

declining to impose probation or other alternative punishment.

                                                                                         Affirmed.




       7
          To the extent that Blackwell raises constitutional arguments regarding equal protection
or the Privileges and Immunities Clause in arguing that the trial court could not let his Baltimore
residency influence his sentence, he also failed to make these arguments at trial. He asks this
Court to apply the “ends of justice” exception to Rule 5A:18. At trial, he merely argued that
imposing a sentence without probation because he was a Baltimore resident was “unfair.” Even
if there was reason to believe a constitutional violation may have occurred, that alone does not
automatically trigger the ends of justice exception. See, e.g., Flanagan v. Commonwealth, 58
Va. App. 681, 694-95, 714 S.E.2d 212, 218-19 (2011).
                                                 -8-
