                                                                    COURT OF APPEALS OF VIRGINIA


            Present: Judges Humphreys, Petty and AtLee
            Argued at Lexington, Virginia
PUBLISHED




            LEROY ELLIS
                                                                                                OPINION BY
            v.            Record No. 1111-17-3                                             JUDGE WILLIAM G. PETTY
                                                                                                 MAY 8, 2018
            COMMONWEALTH OF VIRGINIA


                                                     FROM THE CIRCUIT COURT OF HENRY COUNTY
                                                                David V. Williams, Judge

                                         Perry H. Harrold for appellant.

                                         Donald E. Jeffrey, III, Senior Assistant Attorney General (Mark R.
                                         Herring, Attorney General; Elizabeth Kiernan Fitzgerald, Assistant
                                         Attorney General, on brief), for appellee.


                          Leroy Ellis pleaded guilty pursuant to North Carolina v. Alford, 400 U.S. 24 (1970),1 to

            buying or receiving stolen property in violation of Code § 18.2-108(A). On appeal, Ellis argues

            that the trial court erred “in failing to grant [his] Motion for Reconsideration which requested

            relief from being held liable for the payment of restitution to the victim for costs not associated

            with offenses to which (Ellis) pled guilty to and for offenses which were nolle prosequi.” For

            the reasons stated below, we reverse the trial court’s order and remand for resentencing.

                                                                            BACKGROUND

                          Leroy Ellis was indicted for burglary, in violation of Code § 18.2-89; grand larceny, in

            violation of Code § 18.2-95; larceny of a firearm, in violation of Code § 18.2-95; and possession

                                                                        
                          1
                       An Alford guilty plea allows “criminal defendants who wish to avoid the consequences
            of a trial to plead guilty by conceding that the evidence is sufficient to convict them, while
            maintaining that they did not participate in the acts constituting the crimes.” Carroll v.
            Commonwealth, 280 Va. 641, 644-45, 701 S.E.2d 414, 415 (2010) (quoting Parson v. Carroll,
            272 Va. 560, 565-66, 636 S.E.2d 452, 455 (2006)).
of a firearm by a convicted felon, in violation of Code § 18.2-308.2. Before trial, the trial court

granted the Commonwealth’s motion to amend the grand larceny indictment to receiving stolen

property, in violation of Code § 18.2-108(A). Thereafter, Ellis entered an Alford guilty plea to

the amended indictment, and the Commonwealth moved to nolle prosequi the other three

charges. There was, however, no written plea agreement, nor was there any mention of

restitution. Before accepting Ellis’s plea, the trial court heard the following proffer of evidence

from the Commonwealth:

               [O]n February the 16th of 2015, [the victim] was working nights at
               Ply-Gem in Rocky Mount. He was living in an apartment on River
               Road in the Bassett section of Henry County. When he came back
               from work that evening, he discovered his front door had been
               kicked in and there was a Glock handgun, a flat screen TV, two
               watches, and an Xbox game system missing from his house. He
               called the police and then Investigator Jerry Farmer responded.
               Investigator Farmer took pictures of the residence and everything
               that was around there and talked to [the victim]. There was a
               surveillance video from a local business that showed a person that
               was very indistinct and a white or light colored SUV pull up and
               that was pretty much all you could tell from that particular video.
               The defendant at the time was a co-worker of [the victim’s] and
               Investigator Farmer, in talking to [the victim], thought he might be
               a suspect, developed the idea that Mr. Ellis might be a suspect in
               the matter. He got a search warrant for Mr. Ellis’s home on
               Preston Scales Road in Henry County. There was a white,
               light-colored Chevy SUV at . . . Mr. Ellis’s home, on March the
               4th when the search warrant was served, and the officers that
               served the search warrant found the television that had the
               matching serial numbers of [the victim’s] television in the
               residence there at, where Mr. Ellis lived. Mr. Ellis stated that he
               bought the TV from, for two hundred fifty dollars at the car wash
               in Stanleytown from a man driving a dark gray Impala. And his
               girlfriend, who was also in the house, says she noticed there was a
               TV there when she came home from work on the third of March,
               but she didn’t know how it got there and she just figured that
               Mr. Ellis [had] bought it.

The Commonwealth also noted that the case was “a circumstantial one.”

               There were other circumstances that did point toward Mr. Ellis;
               however, in all fairness to Mr. Ellis since he’s pleading to a lesser
               charge, the Commonwealth doesn’t really wish to get into those.
                                                -2-
                             [The victim], for his part, when this case was last set, informed the
                             Commonwealth about a day before that he was going to be in
                             Virginia Beach for his vacation and would not be here, so that in
                             essence would be the facts the Commonwealth would adduce at
                             trial and a little bit behind why the Commonwealth is making this
                             particular offer.

              After preparation of a pre-sentence report and the submission of a victim impact

statement, the trial court entered an order sentencing Ellis to five years of incarceration with four

years and eight months suspended. A condition of Ellis’s suspended sentence was that he make

restitution in the amount of $1,500 to the victim in the case.2 At the sentencing hearing, defense

counsel inquired about the court’s $1,500 order of restitution. The trial court stated:

                             COURT: Yes sir, the victim asked for twenty four forty five. I
                             don’t think that’s appropriate. I did order the fifteen hundred
                             which was what was apparently taken.

                             MR. HARROLD: Judge, the only thing that they found would be
                             the television set.

                             COURT: I agree, but I’m still going to make it fifteen hundred.

              Subsequently, defense filed a timely motion to reconsider the order of restitution, which

was denied.

              On appeal, Ellis argues the trial court erred in denying his motion to reconsider the

amount of restitution ordered by the court. Ellis argues that the trial court erred in ordering him

to pay restitution for costs associated with the burglary and grand larceny, offenses for which he

was not convicted. We agree.




                                                            
              2
         In the victim impact statement, the victim listed items “lost as a result of this crime,”
including a handgun ($350), a television ($450), an Xbox One ($450), a Nixon watch ($150),
and Citizen watch ($100)—totaling $1,500. The victim also listed $1,545 in moving costs less
the $600 he received when he received his deposit when he moved out.
                                               -3-
                                       STANDARD OF REVIEW

       “A sentencing decision will not be reversed unless the trial court abused its discretion.”

Burriesci v. Commonwealth, 59 Va. App. 50, 55, 717 S.E.2d 140, 143 (2011) (quoting Martin v.

Commonwealth, 274 Va. 733, 735, 652 S.E.2d 109, 111 (2007)). “[T]he phrase ‘abuse of

discretion’ means that the circuit court ‘has a range of choice, and that its decision will not be

disturbed as long as it stays within that range and is not influenced by any mistake of law.’”

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

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

(internal quotation marks omitted)). However, “when an irrelevant or improper factor is

considered and given significant weight” the court commits an abuse of discretion. Landrum,

282 Va. at 352, 717 S.E.2d at 137 (quoting Kern v. TXO Production Corp., 738 F.2d 968, 970

(8th Cir. 1984)).

                                             ANALYSIS

       Pursuant to Code § 19.2-303,

               [a]fter conviction, . . . the court may . . . suspend the sentence in
               whole or part and . . . may, as a condition of a suspended sentence,
               require the defendant to make at least partial restitution to the
               aggrieved party or parties for damages or loss caused by the
               offense for which convicted.

When restitution is ordered as a condition of a suspended sentence, Code § 19.2-305(B) provides

that “[a] defendant placed on probation following conviction may be required to make at least

partial restitution . . . for damages or loss caused by the offense for which conviction was had.”

Code § 19.2-305.1(A) also provides that “no person convicted of a crime . . . which resulted in

property damage or loss, shall be placed on probation or have his sentence suspended unless such

person shall make at least partial restitution for such property damage or loss.” Additionally,

Code § 19.2-305.2 authorizes the court, “when ordering restitution pursuant to § 19.2-305.1, [to]

                                                -4-
require [the] defendant . . . [to] pay [the victim] an amount equal to the greater of the value of the

property at the time of the offense or the value of the property at the time of sentencing.”

        In previous cases addressing the trial court’s authority to order restitution we have

interpreted Code §§ 19.2-303 and 19.2-305.1 as granting “‘wide latitude’ and much ‘discretion

. . . to [apply the] remedial tool [of restitution] . . . in the rehabilitation of criminals’ . . . .”

McCullough v. Commonwealth, 38 Va. App. 811, 814, 568 S.E.2d 449, 450 (2002) (alterations

in original) (quoting Deal v. Commonwealth, 15 Va. App. 157, 160, 421 S.E.2d 897, 899

(1992)).

        For example, in Deal v. Commonwealth, following a conviction for felony

embezzlement, the trial court ordered the defendant to pay $43,000 in restitution to her former

employer, from whom she embezzled. 15 Va. App. at 158, 421 S.E.2d at 898. The former

employer testified that the business suffered $200 per day of loss for almost a year while Deal

was adjusting the books, but Deal denied that the loss was as high as $200 a day. Id. at 159-60,

421 S.E.2d at 899. In affirming the trial court’s order, this Court noted that Code

§§ 19.2-303, -305, and -305.1 “confer upon trial courts ‘wide latitude’ and much ‘discretion in

matters of suspension and probation . . . to provide a remedial tool . . . in the rehabilitation of

criminals’ and, to that end, ‘should be liberally construed.’” Id. at 160, 421 S.E.2d at 899

(quoting Nuckoles v. Commonwealth, 12 Va. App. 1083, 1085-86, 407 S.E.2d 355, 356 (1991)).

This Court found the sentence reasonable and therefore affirmed. Id. at 160-61, 421 S.E.2d at

899-900 (noting that “conditions upon the suspension of execution or imposition of a sentence

must be reasonable in relation to the nature of the offense, the background of the offender and

the surrounding circumstances”).

        Likewise, in Waiters v. Commonwealth, 33 Va. App. 739, 536 S.E.2d 923 (2000), this

Court affirmed the trial court, recognizing the latitude and discretion afforded to trial courts in

                                                     -5-
ordering restitution. The defendant in Waiters was convicted of three counts of distribution of

marijuana. Id. at 740, 536 S.E.2d at 924. As part of his sentence, the court ordered him to pay

$1,900 to the Fairfax County Police Department in restitution for the money detectives paid him

over the course of three undercover drug purchases. Id. at 741, 536 S.E.2d at 924. On appeal,

this Court affirmed the trial court, noting that the order was “reasonable and . . . appropriate.” Id.

at 742, 536 S.E.2d at 925. Notwithstanding Waiters’s argument that the police department was

not an aggrieved party under Code § 19.2-303, this Court affirmed, recognizing the “wide

latitude” and discretion of the trial courts in determining conditions of a suspended sentence. Id.

at 741-43, 421 S.E.2d at 924-25 (citing Deal, 15 Va. App. at 160, 421 S.E.2d at 899). This Court

noted that the trial court “ordered the return of the exact sum the undercover agent had paid the

defendant for illegal drugs. At a minimum, the requirement prevented the defendant from

profiting from the crime he committed.” Id. at 742-43, 421 S.E.2d at 925.

              Finally, in McCullough v. Commonwealth, 38 Va. App. 811, 813, 568 S.E.2d 449, 450

(2002), the defendant was ordered to pay $5,054.07 in restitution to the Suffolk Department of

Social Services even though “the Commonwealth failed to prove beyond a reasonable doubt the

amount by which McCullough was overpaid as a result of her fraudulent conduct.”3 On appeal,

McCullough contended that the trial court erred in ordering a restitution amount that was greater

than that proved at trial. Id. at 814, 568 S.E.2d at 450. On appeal, this Court affirmed. Because

“the restitutionary amount [was] supported by a preponderance of the evidence and [was]

‘reasonable in relation to the nature of the offense,’ Deal, 15 Va. App. at 160-61, 421 S.E.2d at




                                                            
              3
         McCullough was indicted for welfare fraud in excess of $200, a felony, but was
ultimately convicted of two counts of petit larceny because of the failure of proof on the value of
the fraud. McCullough, 38 Va. App. at 813-14, 568 S.E.2d at 450.
 
                                                               -6-
899, the determination of the trial court [was affirmed].” McCullough, 38 Va. App. at 817, 568

S.E.2d at 451-52.4

              The Supreme Court, however, has recently narrowed the scope of the trial court’s

discretion in ordering restitution. In Howell v. Commonwealth, 274 Va. 737, 739, 652 S.E.2d

107, 107-08 (2007), the Court considered whether a trial court may require a defendant to pay

restitution for the installation of a security system as part of his sentence for burglary. The Court

specifically recognized that “[t]he General Assembly has limited the scope of restitution a court

may order to payments for ‘damages or losses caused by the offense.’” Id. at 740, 652 S.E.2d at

108. In its reversal of the trial court’s decision regarding restitution, the Court relied upon

decisions from the United States Court of Appeals for the Fourth Circuit in which the federal

court addressed a federal statute similar to Code § 19.2-303. The Court in Howell noted that the

Fourth Circuit interpreted the language “‘actual damages or loss caused by the offense’ to limit

the damages or loss which the defendant can be ordered to repay to ‘those which were directly

caused by the offense.’” Id. at 740-41, 652 S.E.2d at 108-09 (quoting United States v.

McMichael, 699 F.2d 193, 195 (4th Cir. 1983)). The Court also adopted the Fourth Circuit’s

interpretation that “[w]e do not read the language . . . to authorize reimbursement . . . [for] costs

[that] result only indirectly from the offense.” Id. at 741, 652 S.E.2d at 109 (quoting United

States v. Vaughn, 636 F.2d 921, 923 (4th Cir. 1980) (alterations in original) (discussing

reimbursement to the government for costs associated with investigation and prosecution)).

Additionally, the Court cited with approval a Kansas Court of Appeals decision holding that it

was reversible error for the trial court to order the defendant to pay for the installation of a

security system in the building that he burglarized because those were “‘tangential costs incurred



                                                            
              4
         It is important to note that in McCullough, as well as in Waiters and Deal, the restitution
reflected losses occasioned by the offense for which the defendant was convicted.
                                                -7-
as a result of a crime,’ not a cost caused by the crime.” Id. (quoting State v. Chambers, 138 P.3d

405, 414-15 (Kan. Ct. App. 2006)). Accordingly, the Court held that the trial court erred because

the attenuation between the installation of the security system and the burglary was too great—

the installation of the security system was related to the burglary but “was not caused by the

offense as required by Code §§ 19.2-303, -305(B), -305.1(A).” Id.

       Here, Ellis pleaded guilty and was convicted pursuant to Code § 18.2-108 of receiving

stolen goods. In order to convict the defendant of that crime, the Commonwealth was required to

proffer that the defendant bought “or receive[d] from another person, or aid[ed] in concealing,

any stolen goods or other thing, knowing the same to have been stolen.” Code § 18.2-108. The

Supreme Court has held that one of the elements of the crime of receiving stolen property is

“[t]hat ‘the goods or other things’ were previously stolen by some other person.” Grilland v.

Commonwealth, 184 Va. 223, 227, 35 S.E.2d 130, 131 (1945) (emphasis added) (quoting Hey v.

Commonwealth, 73 Va. (32 Gratt.) 946, 951 (1879)). Accordingly, Ellis’s conviction for

receiving stolen property precludes him from being deemed the thief.

       The trial court ordered Ellis to pay $1,500 restitution to the victim for “what was

apparently taken” from the victim’s home. That amount is the sum total of all of the property

that the victim listed as taken in the burglary. As the trial court noted, however, the television

was the only item found in the defendant’s possession. It was his possession of that item, and

that item only, that formed the basis for his conviction for receiving stolen goods. Code

§ 19.2-305(B), which governs the ordering of restitution, clearly states that when restitution is

ordered as a condition of a suspended sentence, “[a] defendant placed on probation following

conviction may be required to make at least partial restitution . . . for damages or loss caused by

the offense for which conviction was had.” (Emphasis added). Ellis was convicted of an offense




                                                -8-
that presupposes that he was not the thief.5 The only loss directly caused by the offense for

which Ellis was convicted was the loss of the television, valued at $450. Accordingly, the trial

court abused its discretion in ordering Ellis to pay restitution in an amount exceeding the value of

the television, the property he was convicted of receiving or concealing.6

                                                               CONCLUSION

              The trial court abused its discretion by ordering restitution for damage or loss caused by

offenses for which Ellis was not convicted. The judgment of the trial court will be reversed as to

the portion of the final order pertaining to restitution. The case will be remanded to the trial

court for corrections to Ellis’s sentencing order consistent with this opinion.

                                                                                Reversed and remanded.




                                                            
              5
         It is also noteworthy that the two indictments alleging that he stole and possessed the
firearm were nolle prosequied.
              6
          Certainly, the Commonwealth could have included restitution for the entire amount of
loss suffered by the victim as a part of a formal plea agreement. See Brown v. Commonwealth,
68 Va. App. 58, 69-70, 802 S.E.2d 197, 202-03 (2017) (noting that “once accepted by a circuit
court, plea agreements are treated as binding contracts”).
                                                -9-
