Daivon Renee Lucas v. Commonwealth of Virginia, 0647204

In 2013 Lucas was convicted in Arlington County of credit card theft and identity theft; the court imposed prison terms but suspended execution and placed her on four years’ supervised probation with a special condition limiting travel.
Probation was transferred to California; between 2013–2019 Lucas incurred multiple out-of-state theft, forgery, and related convictions, and bench warrants issued in 2016 for absconding and changing residence without permission.
Lucas was arrested in 2020 on the outstanding warrants. At the probation-violation hearing she admitted the violations and offered mitigating evidence, describing periods of lawful employment and personal tragedies that led to relapse.
The trial court stated it had “no alternative but to impose the balance of the time” and entered a written order that recited the defendant was given opportunity to show cause, admitted the violation, and that the court considered the information provided.
On appeal Lucas argued the trial court erred by failing to indicate on the record that it considered mitigation; she also argued the Commonwealth should be estopped from abandoning a prior concession of error.
The Court of Appeals affirmed: Lucas’s argument was unpreserved under Rule 5A:18 and the ends-of-justice exception did not apply; the written order showed the court considered mitigation; the Commonwealth was not estopped from changing positions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether court failed to indicate on record it considered mitigating evidence	Lucas: trial court did not state it considered mitigation, so reversal required	Commonwealth: written order shows the court considered information; Lucas failed to object below	Unpreserved—Lucas did not contemporaneously raise the specific complaint; appellate review denied
Whether Rule 5A:18 ends-of-justice exception excuses lack of preservation	Lucas: grave injustice because court silent on mitigation	Commonwealth: exception inapplicable because sentence not excessive and statute required revocation	Not satisfied—the exception is narrow; reimposition was statutory and not excessive on its face
Whether the written order established the court’s consideration of mitigation	Lucas: record lacks evidence court considered mitigating evidence	Commonwealth: order explicitly states court considered information and heard argument	Held for Commonwealth—the court speaks through its written order, which recites consideration
Whether the Commonwealth is estopped from changing position on appeal	Lucas: Commonwealth previously supported appeal and should not abandon that position	Commonwealth: Attorney General may repudiate earlier position taken by the Commonwealth’s Attorney	Held for Commonwealth—no approbation-and-reprobation estoppel; change of position permitted

Robinson v. Commonwealth, 13 Va. App. 574 (1992) (explains purpose of contemporaneous objection rule to allow trial court to correct errors)
Scialdone v. Commonwealth, 279 Va. 422 (2010) (objection must be made when trial court can rectify asserted error)
Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006) (no basis for appellate review when trial court not given opportunity to rule)
Brittle v. Commonwealth, 54 Va. App. 505 (2009) (ends-of-justice exception is narrow; do not apply when sentence is not excessive on its face)
Williams v. Commonwealth, 294 Va. 25 (2017) (articulates two-step inquiry for applying ends-of-justice exception)
Roe v. Commonwealth, 271 Va. 453 (2006) (a circuit court speaks only through its written orders)
In re Commonwealth, Dept. of Corrections, 222 Va. 454 (1981) (Commonwealth may repudiate earlier erroneous positions taken by Commonwealth’s Attorney)