Julian Darius Karapetkov v. Commonwealth of VirginiaJulian Darius Karapetkov v. Commonwealth of Virginia
JUDGE DORIS HENDERSON CAUSEY
Julian Darius Karapetkov pleaded guilty to one count of arson of an occupied dwelling and one count of arson with $1,000 or more of property damage, in violation of
We hold that the circuit court did not abuse its discretion in denying a continuance, because any prejudice from the proceeding was speculative. We further hold that Karapetkov‘s sentence, imposed within the statutory range, is not subject to the appellate review that he seeks. Finally, regarding restitution, we decline to invoke the ends of justice exception. We accordingly affirm.
BACKGROUND3
This appeal stems from Karapetkov making incessant, unwanted, and eventually unlawful contact with C.G.4 over a three-year period. C.G. and Karapetkov attended middle school together and “reconnected in 2020” during their senior year of high school. Following a brief period of non-romantic communications and in person encounters, C.G. decided to “cut off contact” with Karapetkov. Regardless, Karapetkov continued communication with C.G. via text messaging and social media. Despite attempts to block Karapetkov and change her number, C.G. continued to receive messages from him, as many as 35 per day. Karapetkov and C.G. attended Virginia Commonwealth University (“VCU“) around the same time, where the messages continued in the same manner and frequency. In August 2021, C.G. reported Karapetkov to the VCU police and obtained a temporary protective order.
On March 21, 2024, Karapetkov pleaded guilty to arson of an occupied dwelling and arson with $1,000 or more of property damage. Paragraph (15)(f) of the “Plea of Guilty to Felonies” (herein “the plea agreement“) entered into between Karapetkov and the Commonwealth, and dated March 21, provides as follows: “No restitution is owed in this case.” The court accepted Karapetkov‘s guilty pleas without amending the plea agreement, and, on the Commonwealth‘s motion, the court entered a nolle prosequi as to the remaining charges. In a subsequent conviction order, the trial court wrote that it “accepts and agrees to abide by the terms and conditions set forth in the Plea Agreement.”
I. The Original Sentencing Hearing
During the plea hearing, the court discussed the sentencing ranges under the plea agreement, stating the arson of property offense carried a penalty of “two to ten years in the Virginia
On July 8, 2024, the parties convened for the sentencing hearing. The circuit court received sentencing guidelines, a pre-sentence report, and a sentencing memorandum in support of Karapetkov. The sentencing guidelines recommended a range of punishments from one year and three months to three years of incarceration. The Commonwealth presented the testimony of C.G. and C.G.‘s father, mother, and sister.
C.G.‘s father testified that Karapetkov‘s “unwanted communications” with C.G. “have included expressions of anger, swearing, [and] claims to be able to manipulate counselors, and [that Karapetkov] attempted to fabricate evidence to suggest [C.G.] was sending messages to herself.” He alleged the arson damage caused the family to “spend[] tens of thousands of dollars out of pocket” for repairs and to be displaced from their home for 20 months.
C.G.‘s sister read aloud several text messages sent by Karapetkov and contended, in the three years that he harassed C.G., he never changed his behavior, despite legal and nonlegal interventions.
C.G.‘s mother testified that their home “used to be a place where [the family] felt safe; a place filled with memories of [their] kids growing up, of hosting holidays, [and] celebrating family milestones“; but “[n]ow the memories seem to all be about the fire.” She recalled the “fear and shock, trying not to panic when [they] were initially unable to get in contact with [C.G.], and memories of the aftermath of the fire: [s]oot everywhere[ and] sorting through destroyed belongings.”
The defense called Karapetkov‘s father and brother to the stand. His brother described Karapetkov‘s experiences with his court-appointed therapist, explaining the sessions lasted about ten minutes, and stating, “they didn‘t really talk about anything related to this case, or pretty much anything related to him.” His father confirmed that Karapetkov attended therapy twice a week, sometimes for ten minutes, and testified, “[Karapetkov] was telling me that they [would] talk about good restaurants here in the Ashburn/Sterling area. It was not really . . . anything useful or helpful.” His brother and father testified they were willing to delay or modify their employment to better monitor Karapetkov.
Karapetkov testified. He maintained he “would never . . . intentionally try to harm [C.G.] or her family,” explaining “not once did [C.G.‘s] parents, or anyone else, cross my mind. . . . The only person that was on my mind was [C.G.], and I knew for a fact that she was in Richmond, safe from the fire.” He stated, “On the night of the fire, the only thought that kept flowing through my mind was that my opportunity of having a relationship with [C.G.], living a normal college life with plenty of friends and experiences, was gone.” And “[w]hen I saw the . . . video of [C.G.], my heart dropped, and I began experiencing a lot of sadness, regret, anger and hopelessness.”
The Commonwealth asked the court to sentence Karapetkov to 25 years, with no more than 10 years suspended. It reasoned the proposed sentence was appropriate given the facts of the case
The court “impart[ed] some of [its] reasoning” before issuing the sentences. The judge weighed aggravating and mitigating factors. Aggravating factors included that Karapetkov had a “truly unnatural and irrational obsession, of what [the court found] to be a possessory nature.” The court gave “little credit” to Karapetkov‘s contention that the messages were simply “love machinations,” instead deeming them to be “a product of a delusion . . . that‘s likely continuing to-date.” The court held that Karapetkov‘s “ignoring of the legal restraint imposed by the Richmond court” constituted a “very strong factor,” further stating, “I don‘t think it‘s adequately weighed in the Virginia sentencing guidelines.”
Further, the court found that Karapetkov‘s “tactics of manipulation” lasted for 18 months. The court found that the balance of information demonstrated at least some pre-planning on Karapetkov‘s part to set the house on fire. In addition to “emotional, traumatic, and the psychological damage,” it noted “financial damage[s] [of] over a million dollars” to the home and
As to mitigating factors, the court noted that Karapetkov was a “young man” without a prior record. It determined that Karapetkov was undergoing “a mental or emotional disturbance” and the “vacuum of information” concerning his mental health was “equally capable of being dangerous, as it is being mitigating.” The court found that Karapetkov‘s efforts at therapy were “anemic” and that it could not “put much weight on the guesswork that . . . [Karapetkov‘s actions were the] product of depression.”
The court sentenced Karapetkov to life in prison, with all but ten years suspended, for the arson of an occupied dwelling conviction, and to ten years for the arson of property conviction. The court set conditions for the suspended sentence, including good behavior for life, no contact with the victim or the victim‘s family, and supervised probation for five years. The court also listed several special conditions. In particular, the judge stated, “you are to develop and commit to a restitution plan with the supervising probation officer upon your release.” Karapetkov did not object to the imposed sentence or conditions.
The court memorialized its rulings in a sentencing order dated July 9, 2024. The restitution terms read:
12. If directed by a Probation/Parole Officer, or otherwise by a specific court order of the Commonwealth of Virginia, pay restitution, fines and costs associated with this matter.
. . . .
17. The Defendant is to develop and commit to a restitution plan with the probation officer upon release.
On July 19, 2024, the court entered an order staying the “finality” of the sentencing order “until further Order of this [c]ourt.” The stay order was renewed in October 2024, December 2024, and January 2025, and the case was continued twice thereafter.
II. Hearing on the Motion to Reconsider the Sentences
On May 1, 2025, the circuit court held a hearing on Karapetkov‘s motion to reconsider the imposed sentences. Defense counsel requested to continue the case until May 15 because Karapetkov‘s mother had been hospitalized after falling through a screened door from the second floor of her residence. He explained that his mother served as a “potential rebuttal witness” and that Karapetkov wished for her to be present. He further asserted that Dr. Jennifer Marshall, the clinical psychologist who evaluated Karapetkov, indicated the mother‘s fall might be a “potential suicide attempt,” which could affect her data and findings concerning his mental health. The Commonwealth objected, asserting the matter “ha[d] been continued so many times”7; “the mother
The court denied Karapetkov‘s continuance request. It held that a motion to reconsider a sentence “is not . . . itself a substantive right” but rather “an accommodation on the notion that perhaps maybe there‘s something out there that the [c]ourt could . . . consider.”8 Specifically, “it was represented . . . that there was an issue with regard to [Karapetkov‘s] mental [health] and a report that was forthcoming.” Dr. Marshall‘s report and testimony sufficiently addressed these concerns. Concerning “parents or other witnesses,” the court stressed the motion is not a “do over.” The hearing proceeded.
Dr. Marshall opined that Karapetkov suffered from depressive disorder.9 She explained that he faced several issues in adolescence, including a video-game addiction that led to major self-isolation, closing him out of all former social groups by the time he entered high school. She also attributed Karapetkov‘s brother leaving for college, along with the impact of his parents’ divorce; Karapetkov maintained limited contact with his father and continued residence with his mother—who according to Karapetkov, his father, and his brother—experienced “significant struggles” with mental health and illness. Combined with little to no “significant parental supervision,” Dr. Marshall concluded that “significant opportunities for intervention . . . were lost.” Karapetkov did not receive any mental health treatment until the court‘s directive, and even then, “[t]here really wasn‘t any indication of a formal treatment plan.”10 Considering the
The court denied the motion. It held there was “no sufficient nexus between the lack of treatment and the decision to sneak onto somebody else‘s property and to maliciously set it on fire.” It held the “brain development argument” was a “total non sequitur,” as “millions of 18 to 25 year olds . . . [have] navigat[ed] the loss of girlfriends without setting the other family‘s house on fire.” Finally, it stated, “even assuming [the] mitigating value in today‘s presentation,” the evidence was “utterly insufficient to change my mind as to the July 2024 sentence[s].” The court ordered the July 9, 2024 sentencing order into execution. Karapetkov appealed.
ANALYSIS
I. The Denial of the Motion to Continue
Karapetkov contends the circuit court abused its discretion in denying his motion to continue the May 1, 2025 reconsideration hearing because his mother was an essential witness whose hospitalization rendered her unavailable. He asserts his mother‘s possible suicide attempt could have altered the findings of his expert, Dr. Marshall. He also argues that he wanted his mother present both as a potential rebuttal witness and for support. Because Karapetkov has not shown the prejudice required for reversal, this Court affirms the ruling of the circuit court.
Whether to grant or deny a continuance rests within the sound discretion of the circuit court. Haugen v. Shenandoah Valley Dep‘t of Soc. Servs., 274 Va. 27, 34 (2007). To obtain a
Prejudice is an essential prong. See Bolden v. Commonwealth, 49 Va. App. 285, 290 (2007). Prejudice may not be presumed; it must appear from the record. Id. Where the harm an appellant alleges is “equivocal and speculative,” no abuse of discretion occurs. Salmon v. Commonwealth, 32 Va. App. 586, 595 (2000) (quoting Haase v. Haase, 20 Va. App. 671, 680 (1995)).
Here, we need not decide whether the circuit court abused its discretion because Karapetkov has not demonstrated the requisite prejudice.12 Karapetkov identifies only speculative harm. See id. As represented by defense counsel, Dr. Marshall indicated that his mother‘s fall “may change some of her findings” if it proved to be a suicide attempt. Counsel did not proffer the substance of his mother‘s anticipated testimony, and he did not identify how any of Dr. Marshall‘s conclusions or treatment recommendations would change. In the record before us, prejudice does not stem from a contingent and unspecified possibility of an expert changing their findings upon some future incident that may not occur. See Salmon, 32 Va. App. at 595.
Karapetkov‘s remaining grounds do not establish prejudice either. As to his mother‘s role as a rebuttal witness, his mother‘s planned testimony would have addressed a recorded jail call between her and Karapetkov. The circuit court stated it would give no weight to this jail call, which removed any need for that rebuttal. And Karapetkov‘s wish for his mother to be present as support, however understandable, itself does not show how the denial prevented Karapetkov
II. The Sentence
A circuit court‘s sentencing decision, and its denial of a motion to modify a sentence under
A. The Within-Range Sentence
A circuit court acts within its sentencing authority when it fixes punishment at a point within the range the legislature has established. Minh Duy Du, 292 Va. at 564-65. Karapetkov faced up to life imprisonment for arson of an occupied dwelling and up to ten years for arson of personal property valued at $1,000 or more, and his sentences fall within those ranges. That his active term exceeds the discretionary guidelines is not grounds for reversal. Nothing in the record establishes that the circuit court failed to consider the mitigating evidence that Karapetkov now advances; we presume, without affirmative evidence to the contrary, that courts consider all evidence properly before them. Cellucci, 77 Va. App. at 52.
Karapetkov next asks this Court to conduct a proportionality review of his sentence under the Eighth Amendment. Such review is not available for any sentence less than life imprisonment without the possibility of parole. Cole v. Commonwealth, 58 Va. App. 642, 654 (2011). Although Karapetkov invites us to depart from that rule, we are bound by Cole under the rule of inter-panel accord and may not overrule it; only this Court sitting en banc or the Supreme Court of Virginia may do so. Butcher v. Commonwealth, 298 Va. 392, 397 n.6 (2020). The circuit court did not impose a sentence of life imprisonment without the possibility of parole. Karapetkov‘s Eighth Amendment claim is therefore foreclosed, and we need not decide whether it was preserved. Karapetkov‘s parallel claim under Article I, Section 9 of the Constitution of Virginia fails for the same reason, as that provision affords no greater protection than the Eighth Amendment. See Vlaming v. W. Point Sch. Bd., 302 Va. 504, 528 (2023); Dunaway v. Commonwealth, 52 Va. App. 281, 311, 313 (2008).
C. Due Process and the Sentencing Guidelines
Karapetkov also maintains that departing from the discretionary sentencing guidelines by more than six times their upper end is so arbitrary as to deny him due process. The guidelines, however, are advisory, and the General Assembly has provided that the failure to follow them “shall not be reviewable on appeal or the basis of any other post-conviction relief.”
D. The Motion to Reconsider
Finally, the circuit court did not abuse its discretion in denying the motion to reconsider under
III. Restitution
Lastly, Karapetkov argues the trial court erred “when it failed to set the amount of restitution and instead delegated that responsibility to ‘a Probation/Parole Officer.‘” Karapetkov asks us to apply the ends of justice exception, and, consequently, remand the case back to the trial court. We are not persuaded that Karapetkov‘s restitution-related assignment of error merits review on appeal because the explicit terms of the plea agreement, accepted by the court and entered by court order, states that no restitution is owed.13
Before sentencing, Karapetkov entered into a plea agreement, wherein he and the Commonwealth agreed that Karapetkov would not pay restitution.14 During the plea colloquy, the trial court accepted Karapetkov‘s plea without amending the agreement. In a subsequent conviction order, the trial court wrote that it ”accepts and agrees to abide by the terms and conditions set forth in the Plea Agreement.” (Emphasis added). The trial court thus adopted the no-restitution term of the plea agreement in a legally enforceable court order.
We treat plea agreements as written contracts between a defendant and the Commonwealth. Bardales v. Commonwealth, 71 Va. App. 737, 743 (2020); Wright v. Commonwealth, 49 Va. App. 58, 62 (2006) (“[B]asic rules of contract law apply to plea agreements.“); Griffin v. Commonwealth, 65 Va. App. 714, 718 (2016) (“Once accepted, courts generally treat plea agreements as binding contracts[.]“); Esparza v. Commonwealth, 29 Va. App. 600, 606 (1999) (“[T]he law in force on the date a contract is formed determines the rights of its parties.“).
Because plea agreements are binding contracts, Virginia jurisprudence is replete with appellants who sought to vacate plea agreements that they or their counsel deemed ill-advised. We have generally held these parties liable to the terms to which they agreed. See generally Perry v. Commonwealth, 33 Va. App. 410, 412 (2000) (“[A] voluntary and intelligent [Alford] guilty plea by an accused is a waiver of all defenses other than those jurisdictional.” (internal quotation marks and citation omitted)); Howell v. Commonwealth, 60 Va. App. 737 (2012) (upholding plea agreement where defendant argued a “manifest injustice” because of ineffective counsel when he sought to withdraw his guilty plea); Stevenson v. Commonwealth, No. 2350-02-1, 2004 Va. App. LEXIS 89 (Feb. 24, 2004) (upholding plea agreement where defendant argued that his guilty pleas were not knowingly and voluntarily tendered because his attorney advised that he could withdraw it after discussing it with his mother); Lynch v. Commonwealth, No. 0512-00-2, 2001 Va. App. LEXIS 275 (May 22, 2001) (upholding plea agreement where defendant moved to vacate guilty plea after discovering witnesses who would testify on his behalf).15
In its contract with Karapetkov, the Commonwealth agreed to waive whatever restitution Karapetkov may have owed the victim, the victim‘s family, or the Commonwealth for the damage to property resulting from his arson conviction. When a defendant, whose freedom is at stake, feels they wrongfully entered a plea agreement, we hold that a contract is a contract. Now, when the Commonwealth adopts a position16 that would evade the terms of the plea agreement,
Those same principles guide the interpretation in this case. “The fundamental question before [an appellate court] in construing a contract is ‘what did the parties agree to as evidenced by their contract,’ and the ‘guiding light’ for such construction is ‘the intention of the parties as expressed by them in the words they have used.‘” RECP IV WG Land Invs. LLC v. Cap. One Bank (USA), N.A., 295 Va. 268, 283 (2018) (quoting Schuiling v. Harris, 286 Va. 187, 192 (2013)). The contract between the Commonwealth and Karapetkov is clear and unambiguous. See Bentley Funding Grp., L.L.C. v. SK&R Grp., L.L.C., 269 Va. 315, 329 (2005) (“[W]hen contract terms are clear and unambiguous, we must construe those terms according to their plain meaning.” (alteration in original) (quoting Lansdowne Dev. Co., L.L.C. v. Xerox Realty Corp., 257 Va. 392, 400 (1999))).17 Here, under Paragraph (15)(f) of the plea agreement, Karapetkov and the Commonwealth jointly agreed that “[n]o restitution is owed in this case.” The binding language is plain as can be: Karapetkov will not owe restitution in this matter.
The dissent suggests that
B. Special Condition 12
Karapetkov assigns error to the trial court‘s failure to set the amount of restitution and its delegation of that responsibility to “a Probation/Parole Officer,” in accordance with provision 12 of the “Special Conditions of Suspended Sentence and Supervised Probation” of the July 9, 2024 sentencing order (herein “Special Condition 12“). Special Condition 12 orders that Karapetkov, “[i]f directed by a Probation/Parole Officer, or otherwise by a specific court order of the Commonwealth of Virginia, pay restitution, fines and costs associated with this matter.”
Karapetkov argues that, pursuant to this condition, the trial court erred by delegating to an executive branch employee its judicial authority under
However, we nonetheless decline to apply the ends of justice exception to reach Karapetkov‘s assignment of error because the plea agreement—a binding contract signed by both the Commonwealth and Karapetkov and explicitly accepted by the trial court—shows that a restitution payment will not occur, as “[n]o restitution is owed in this case.” In other words, the record suggests that the complained-of error, assigning the task of setting an amount of restitution to a probation officer, will not take effect. When read in tandem with the plea agreement, Special Condition 12‘s restitution penalty will simply not be imposed.19
The “if directed” clause makes the provision conditional, to be abided by only if a probation officer orders restitution be paid. But here, the probation officer is bound to follow the terms of the plea agreement. The conviction order states that the court “accepts and agrees to abide by the terms and conditions set forth in the Plea Agreement,” making no restitution a term of the judgment; thus, the general boilerplate condition yields to the specific term that the court adopted. A probation officer lacks the statutory authority to petition a court to modify the terms of a plea agreement. See
Again, the court accepted a plea agreement between Karapetkov and the Commonwealth in which all parties agreed that “[n]o restitution is owed in this case.” The court‘s order then adopted the terms and conditions of that agreement. The court‘s approval and entry of the plea agreement made this provision binding on all parties. See Brown v. Commonwealth, 68 Va. App. 58, 70 (2017) (“[O]nce accepted by a circuit court, plea agreements are treated as binding contracts.” (citing Griffin, 65 Va. App. at 718)). Bound by the contract the Commonwealth signed with Karapetkov, no probation officer, representing the Commonwealth as an executive branch employee, would have the authority to order Karapetkov to pay restitution.
In his dissent, Judge Bernhard dissects and applies Wilson to the facts at hand. While we agree with the dissent‘s worthwhile statutory analysis, we do not reach those merits, as this case can be decided on the plea agreement alone.
The dissent declines to implement the parties’ plea agreement, arguing that the trial court‘s sentencing order is in conflict and, thus, subsumes or invalidates the plea agreement. The dissent argues that Special Condition 12 requires restitution to be paid, as set by Karapetkov‘s probation officer. The dissent further discusses Special Condition 17, which provides that “the Defendant . . . develop and commit to a restitution plan with the probation officer upon release.” Additionally, the dissent notes that, in the second paragraph of the final page of its sentencing order, the trial court directed Karapetkov “to pay the costs and restitution of this proceeding . . . .” Thus, the dissent argues that the presumption of some restitution was envisioned by the circuit court.
However, these conclusions are supported only if each provision is read in isolation. The sentencing order provisions discussing restitution are either consistent with the plea agreement
First, in its sentencing order, among other special conditions of Karapetkov‘s supervised probation, the trial court adopted Special Condition 12, which reads: ”If directed by a Probation/Parole Officer, or otherwise by a specific court order of the Commonwealth of Virginia, pay restitution, fines and costs associated with this matter.” (Emphasis added). As noted above, the “if” clause in this provision makes the possibility of a probation officer‘s ordering restitution entirely contingent—and that contingency is rebutted by the explicit terms of the binding plea agreement entered by the trial court.
Additionally, Special Condition 12 merely notes that Karapetkov would pay restitution “associated with this matter.” See Russnak v. Commonwealth, 10 Va. App. 317, 323-24 (1990) (“[N]o ‘implicit’ requirement of ‘some form of restitution’ . . . arises from an order that is otherwise silent as to that issue.“). Coupled with the conditional “if directed” clause, the vague nature of Special Condition 12 cannot, alone, negate an unambiguous term of the plea agreement. Therefore, we respectfully disagree with Judge Bernhard that Special Condition 12 supersedes or otherwise undercuts the plea agreement. Reading the plain language of the plea agreement and the sentencing order in tandem, Special Condition 12 builds onto the plea agreement—they are not in conflict.
Similarly to Special Condition 12, Special Condition 17 does not enforce any kind of restitution; it merely states that Karapetkov must comply with his probation officer in putting together a plan—if he was in fact directed to pay restitution by the probation officer. But the plea agreement makes clear that no such directive will occur. That restitution plan could very
Lastly, the directive “to pay the costs and restitution of this proceeding” in the second paragraph of the last page of the sentencing order does not contradict the plea agreement. (Emphasis added). The plea agreement provides that there would be no restitution for the damage to the victim‘s and her family‘s property caused by Karapetkov‘s arson conviction, as provided by
All in all, had the trial court wanted to impose restitution, it could have rejected the plea agreement during the plea colloquy, or again made it plain in its sentencing order that Karapetkov must pay a set amount of restitution, on a restitution schedule set by the probation officer, as provided under
There is no need to remand this case for the trial court to address restitution. The plea agreement is clear. And our analysis ends with this unambiguous mandate: no restitution is owed. See Shaw v. Commonwealth, 304 Va. 217, 233 (2025) (observing that judicial restraint requires appellate courts resolve cases on the best and narrowest ground available).
C. The Ends of Justice
Finally, Karapetkov asks that we invoke the ends of justice exception to
We are not persuaded that the ends of justice exception permits our review, assuming without deciding that the sentencing order did contain the error alleged.22 Under Wright and
CONCLUSION
For the foregoing reasons, we affirm Karapetkov‘s conviction and sentence. We affirm in regards to restitution, as the plea agreement makes clear that Karapetkov owes no restitution for the victim‘s and her family‘s personal property.
Affirmed.
I agree that the circuit court‘s decision should be affirmed, and I also agree with the rationale of Parts I and II of the majority opinion. Because I disagree with the rationale of Part III, however, I write separately. In my view,
The assignment of error that divides the panel reads as follows: “The trial court erred when it failed to set the amount of restitution and instead delegated that responsibility to ‘a [p]robation/[p]arole [o]fficer.‘” In other words, he assigned error to the court‘s order granting the probation officer the authority to make a restitution determination.
This assignment of error does not call for us to determine whether the court order properly reflected the plea agreement. We are limited to Karapetkov‘s argument as set out in his assignments of error and brief. Banks v. Commonwealth, 67 Va. App. 273, 289 (2017) (explaining that “[t]his Court is limited to reviewing the assignments of error presented by the litigant“);
Additionally,
The court erred in entering an order that improperly delegated authority to the probation officer. Wilson v. Commonwealth, 67 Va. App. 82, 85 (2016). I agree with the dissent that the court‘s error rendered the order voidable, not void ab initio, id. at 90, and Karapetkov therefore was required to preserve his objection under
Appellate courts have repeatedly held that “[t]he ends of justice exception is narrow and is to be used sparingly,” Holt v. Commonwealth, 66 Va. App. 199, 209 (2016) (en banc) (quoting Redman v. Commonwealth, 25 Va. App. 215, 220 (1997)), and should be used when “the judgment of the trial court was error and application of the exception is necessary to avoid a grave injustice or the denial of essential rights,” Brittle v. Commonwealth, 54 Va. App. 505, 513 (2009) (quoting Rowe v. Commonwealth, 277 Va. 495, 503 (2009)). “Application of the ends of justice exception requires proof of an error that was ‘clear, substantial and material.‘” West v. Commonwealth, 43 Va. App. 327, 338 (2004) (quoting Brown v. Commonwealth, 8 Va. App. 126, 132 (1989)). Further, for the exception to apply, an appellant “must affirmatively show that a miscarriage of justice has occurred, not that one might have occurred.” Redman, 25 Va. App. at 221.
For example, the Supreme Court of Virginia explained that it was appropriate to apply the ends-of-justice exception to reverse a sentencing order that was void because it exceeded the statutory maximum for the convicted crimes. Commonwealth v. Bass, 292 Va. 19, 29 (2016); see
Likewise, in Charles v. Commonwealth, 270 Va. 14, 20 (2005), when appellant‘s probation was revoked, the circuit court refused to give appellant credit for time served in the Detention Center Incarceration Program. Although appellant did not preserve his objection, the Supreme Court found the exception was justified “to avoid [the] grave injustice” of “[d]enying [appellant] his liberty on the basis of a void sentence.” Id.
Here, the court‘s order granting the probation officer the authority to make a restitution determination, although made in error, was not a void order, but voidable. As such, I believe it is more comparable to the cases where we have declined to apply the ends-of-justice exception. See Redman, 25 Va. App. at 223 (declining to apply the ends-of-justice exception where the evidence only showed that “a miscarriage of justice may have occurred, not that a miscarriage of justice did occur” and there was no affirmative proof that an element of the crime did not occur); Brittle, 54 Va. App. at 518-20 (declining to apply the ends-of-justice exception where appellant failed to point to a place in the record that affirmatively established that an element of the offense did not occur or that he was convicted of a conduct that was not a criminal offense).
The dissent would find that Karapetkov had an ”essential right to have the terms of his sentence set by a court rather than by an officer of the executive branch.” But “[e]rror alone, even a violation of constitutional principles, is not sufficient to warrant application of the ends of justice exception to
“The burden of establishing a manifest injustice is a heavy one, and it rests with the appellant.” Brittle, 54 Va. App. at 514. I do not believe Karapetkov has carried that burden in this case.26 Karapetkov did not suffer any loss of liberty nor a violation of due process as a result of the court‘s error. Further, “[i]t is never enough for the defendant to merely assert a winning argument on the merits—for if that were enough procedural default ‘would never apply, except when it does not matter.‘” Winslow v. Commonwealth, 62 Va. App. 539, 546 (2013) (quoting Alford v. Commonwealth, 56 Va. App. 706, 710 (2010)). I therefore would find that Karapetkov failed to preserve this argument for appellate review and decline to apply the ends-of-justice exception to
I respectfully dissent and write separately to address Karapetkov‘s contention that the circuit court “erred when it failed to set the amount of restitution and instead delegated that responsibility” to a probation officer. The Commonwealth does not defend that delegation on the merits; it contends rather that Karapetkov‘s challenge is procedurally barred. Citing Wilson v. Commonwealth, 67 Va. App. 82, 89-90 (2016), abrogated on other grounds by Cilwa v. Commonwealth, 298 Va. 259 (2019), it asserts the court‘s action is voidable error subject to
The sentencing order fixed no amount of restitution. It instead made restitution payable if a probation or parole officer, or a further “court order of the Commonwealth,” so directed, imposed that obligation as a special condition of the suspended sentence and of supervised probation, and required Karapetkov to develop a restitution plan with his probation officer after his release.
Whether the circuit court could delegate the determination of restitution to a probation officer presents a question of statutory interpretation that this Court reviews de novo. Wilson, 67 Va. App. at 88.
The statute also governs the plan the order deferred. Subsection (C) directs that “[a]t or before the time of sentencing, the court shall receive and consider any plan for making restitution submitted by the defendant,” and provides that the defendant shall make restitution “[b]y order of the court incorporating the defendant‘s plan or a reasonable and practical plan devised by the court.”
The amount the court fixes at sentencing is also the hinge on which the statute‘s remaining provisions turn. Subsection (E) requires the court to enter at sentencing not only the amount and the date and terms of repayment but “the victim‘s name and contact information,” on a form prescribed by the Office of the Executive Secretary, a copy of which is furnished to the victim upon request.
Karapetkov identifies no objection to the restitution provision made at or after sentencing. He points only to the sentencing order itself, but the presence of the challenged provision in the order is not an objection to it. His reliance on Wilson to secure direct review of an unpreserved claim is misplaced. The two avenues that Wilson described—moving in the trial court within 21 days or noting a timely direct appeal—concern the manner in which a voidable order may be attacked so as to avoid the bar against collateral attacks; they do not relieve a litigant of the contemporaneous-objection requirement that governs a direct appeal. Wilson, 67 Va. App. at 90. Because Karapetkov did not raise the restitution issue in the circuit court, it is defaulted.
Karapetkov asks, in the alternative, that we invoke the ends of justice exception to
Where an unpreserved claim challenges the sufficiency of the evidence, the miscarriage must appear as an affirmative showing that the defendant‘s conduct was not a crime or that an element did not occur. Holt v. Commonwealth, 66 Va. App. 199, 209-10 (2016) (en banc). That formulation developed in cases testing a conviction and measures the grave-injustice route. The Supreme Court framed the inquiry disjunctively, asking whether application of the exception is necessary to avoid a grave injustice or the denial of essential rights. Charles, 270 Va. at 17; accord Brown, 279 Va. at 219. This Court has said the same, that an appellant may proceed by showing either “a ‘grave injustice‘” or a “wholly inexcusable ‘denial of essential rights.‘” Winslow v. Commonwealth, 62 Va. App. 539, 546-47 (2013) (quoting Brittle v. Commonwealth, 54 Va. App. 505, 513 (2009)). Winslow adds that a criminal appellant usually proceeds by the sufficiency showing. Id. at 547. That qualification confirms the point rather than contradicting it: it would be surplusage if the sufficiency showing were the only route available. Karapetkov proceeds on the latter ground, and the delegation here is wholly inexcusable: the circuit court surrendered a duty the statute commits to it alone, and the Commonwealth does not champion that delegation on the merits. The Commonwealth acknowledges instead that this Court has “previously stated it was improper for a trial court to delegate the determination of a restitution amount to a probation officer.” That concession establishes that the error is clear and undisputed; it does not, standing alone, carry the exception, for an appellant must present a winning argument on the merits and a showing of grave injustice or a wholly inexcusable denial of essential rights. Winslow, 62 Va. App. at 546. Karapetkov makes both showings.
That is what occurred here. The order made that delegation explicit. It advised Karapetkov that the special conditions subject to an officer‘s direction were “additional, substantive required conditions” of his suspended sentence, imposed by the officer “upon the court‘s express grant of authority for the purpose of imposing additional special conditions of probation . . . as may be necessitated from time to time.” A probation officer does not act as an officer of the court in imposing conditions of a sentence, whatever the order recites. The delegation denied Karapetkov the essential right to have the terms of his sentence set by a court
Because the defect renders the order voidable rather than void, and because Karapetkov noted a timely appeal, the improper delegation may be corrected on direct review, albeit here in application of the ends of justice exception. Wilson, 67 Va. App. at 90;
Nor does my conclusion depend on how fully the argument was developed below. The burden of establishing a miscarriage of justice remains Karapetkov‘s. He carries it with a record that affirmatively establishes the delegation on the face of the sentencing order, which is what application of the ends of justice exception requires—a showing from the record, not a demonstration that trial counsel said enough. The same answers the observation that the opening brief invokes the exception without elaborating upon it.
I join the majority‘s opinion except as to restitution. Because the sentencing order commits to a probation officer a determination
Notes
Defense counsel later requested that the case be set for May 1, 2025.[The motion to reconsider] was then extended and stays were granted initially from July to October, then October to December, December to January, January to February, and then when we were here in February, defense requested a further extension. The Commonwealth did object to the last two extensions of the stay.
We were here in February, the Court said essentially move or get off the pot when it comes to the motion to reconsider. . . . [And the case was] docketed to be heard April 3rd. The Commonwealth was contacted by . . . the clerk‘s office . . . that April 3rd no longer worked for the Court and offered April 10th.