COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Coleman and 

 Senior Judge Duff 

Argued at Alexandria, Virginia 

ROY DAMIEN SMITH, JR. 

 OPINION BY 

v. Record No. 1241-97-4 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 MAY 12, 1998 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY 

Frank A. Hoss, Jr., Judge 

 William C. Boyce, Jr. (Weimer & Boyce, on 

brief), for appellant. 

 Jeffrey S. Shapiro, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Roy Damien Smith, Jr. (appellant) entered an Alford plea to 

charges of first degree murder and two counts of attempted first 

degree murder. On appeal, he contends the trial court erred in 

considering his failure to express remorse for the plight of the 

victims when imposing a sentence. For the following reasons, we 

affirm. 

 I. 

 Appellant was indicted on one count of capital murder, two 

counts of attempted capital murder, three counts of use of a 

firearm in the commission of murder, and one count of conspiracy 

to distribute cocaine. Before trial, the Commonwealth and 

appellant agreed to a plea bargain in which the charges were 

amended to first degree murder and two counts of attempted first 

degree murder and appellant entered an Alford plea. See North 
 2 

Carolina v. Alford, 400 U.S. 25 (1970). Appellant stated: "I'm 

pleading guilty because I feel I have no other choice. I just 

want to save my life." 

 The Commonwealth called Detective Richard Cantarella, who 

presented a summary of the evidence. Viewed in the light most 

favorable to the Commonwealth, see Juares v. Commonwealth, 26 Va. 

App. 154, 156, 493 S.E.2d 677, 678 (1997), the evidence 

established that on December 9, 1995, appellant entered an 

apartment where a woman, several men, and three young children 

were present. Appellant attempted to sell cocaine to Antonio 

Douglas, one of the men. Douglas refused and walked to the front 

of the apartment. Appellant asked the woman to stay in the back, 

walked to the front of the apartment, pulled out a gun, and shot 

both Douglas and a second man in the head. Later, appellant 

fatally wounded a third man with several shots, including two to 

the head. 

 At the conclusion of the summary, the following colloquy 

took place: 

 COURT: Are you pleading guilty because 

that's what you believe the Commonwealth's 

evidence will be and that [sic] you do not 

wish to run the risk of being found guilty 

beyond a reasonable doubt? 

 [APPELLANT]: Yes, sir. 

 The trial court accepted appellant's Alford plea and found 

him guilty of first degree murder and two counts of attempted 

first degree murder. 
 3 

 At sentencing, appellant was given the opportunity for 

allocution and he made the following statement: 

 I'm a changed man, you know. . . . Even 

though I know I hurted [sic] people in my 

life, my family -- I'm ashamed of being in 

this situation for real, you know. . . . God 

opened my eyes . . . and told me it's time to 

wake up, it's time to change, it's time to go 

on that straight path. . . . [I]f it take[s] 

my whole life from now on until the day I 

die, I'm going to maintain, regardless if you 

hit me with time or whatever you do, I'm 

going [to] change. 

Following appellant's statement, the trial court found him to be 

a dangerous person and sentenced him to life imprisonment. 

 I have considered the evidence in this case, 

I have considered the presentence 

report. . . . And even after listening to 

you, the whole time that you told me how 

things have affected you and how you are now 

going to walk straight no matter what 

happens, I still haven't heard anything from 

you about the poor person that died on this 

occasion . . . . I think you are a dangerous 

person, sir. Consequently, on the charge of 

murder, I am sentencing you to life in 

prison. 

Appellant was also sentenced to two concurrent sentences of ten 

years for the attempted murders. 

 II. 

 The sole issue before us on appeal is whether appellant's 

entry of an Alford plea requires the trial judge to disregard his 

lack of remorse at sentencing. Appellant contends it is 

unreasonable to consider his lack of remorse for a murder he 

denied committing. He further argues that requiring defendants 

to acknowledge responsibility and express remorse to avoid a more 
 4 

severe sentence may chill the use of the Alford plea and may 

increase the burden on the courts. 

 "'For the determination of sentences, justice generally 

requires consideration of more than the particular acts by which 

the crime was committed and that there be taken into account the 

circumstances of the offense together with the character and 

propensities of the offender.'" Shifflett v. Commonwealth, 26 

Va. App. 254, 259, 494 S.E.2d 163, 166 (1997) (en banc) (quoting 

Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55 (1937)). 

"'[P]ossession of the fullest information possible concerning the 

defendant's life and characteristics is highly relevant - if not 

essential - to the selection of an appropriate sentence.'" 

Shifflett, 26 Va. App. at 260, 494 S.E.2d at 166 (citation 

omitted). A lack of remorse is "'obviously proper'" evidence to 

consider "in determining 'dangerousness,' viz., whether the 

defendant 'would in all probability commit criminal acts of 

violence in the future.'" Thomas v. Commonwealth, 244 Va. 1, 23, 

419 S.E.2d 606, 619, cert. denied, 506 U.S. 958 (1992) (quoting 

Clark v. Commonwealth, 220 Va. 201, 210, 257 S.E.2d 784, 790 

(1979), cert. denied, 444 U.S. 1049 (1980)). See also United 

States v. Jacobson, 15 F.3d 19, 23 (2d Cir. 1994) (lack of 

remorse is relevant to sentencing). 

 In Virginia, "[a]n accused may plead not guilty, guilty or 

nolo contendere." Code § 19.2-254. Appellant's right to enter a 

plea of guilty without an express admission of guilt was firmly 
 5 

established in North Carolina v. Alford, 400 U.S. 25 (1970). The 

Supreme Court determined that such a plea is constitutional and 

held that "while most pleas of guilty consist of both a waiver of 

trial and an express admission of guilt, the latter element is 

not a constitutional requisite to the imposition of criminal 

penalty." Id. at 37. 

 Although the specific question before us is an issue of 

first impression in Virginia, several sister states have 

considered the effect of a lack of remorse at sentencing when a 

defendant has not accepted criminal responsibility. In a case 

directly on point, the Court of Appeals of Idaho found that 

Alford "does not require . . . that a court accept a guilty plea 

from a defendant while simultaneously treating the defendant as 

innocent for purposes of sentencing." State v. Howry, 896 P.2d 

1002, 1004 (Idaho Ct. App. 1995). 

 The Howry court rejected the defendant's contention that 

considering a lack of remorse at sentencing subverts the purpose 

of the Alford plea, and held that "once the Alford plea is 

entered, the court may treat the defendant, for purpose of 

sentencing, as if he or she were guilty." Id. Additionally, 

 [a]lthough an Alford plea allows a defendant 

to plead guilty amid assertions of innocence, 

it does not require a court to accept those 

assertions. The sentencing court may, of 

necessity, consider a broad range of 

information, including the evidence of the 

crime, the defendant's criminal history, and 

the demeanor of the defendant, including the 

presence or absence of remorse. 
 6 

Id. The Howry court concluded that the sentencing court was 

"entitled to consider all relevant information regarding the 

crime, including [the] defendant's lack of remorse." Id.

 Also, in Jennings v. State, the Court of Appeals of Maryland 

held that "a sentencing court may consider, on the issue of a 

defendant's prospects for rehabilitation, the defendant's lack of 

remorse." 664 A.2d 903, 910 (Md. 1995). The court distinguished 

lack of remorse, a proper factor to consider in fashioning an 

appropriate sentence, from denial of criminal responsibility, 

which is not a permissible consideration at sentencing. "It is 

absolutely clear that a trial court may not punish a defendant 

for invoking his right to plead not guilty." Jennings, 664 A.2d 

at 908. 

 Although the defendant in Jennings did not enter an Alford

plea, he argued on appeal that the trial court enhanced his 

sentence because he refused to accept criminal responsibility for 

the crime of which he was convicted. See id. The court rejected 

this argument, finding that 

 the sentencing court's remarks reflect a 

refusal to grant [the defendant] the benefit 

of a lesser sentence . . . rather than the 

intentional imposition of a greater one in 

punishment for [his] refusal to plead guilty 

or his continuing protestations of innocence. 

Id. at 909. See also Saenz v. State, 620 A.2d 401, 407 (Md. Ct. 

Spec. App. 1993) ("trial court's present tense observation of a 

defendant's lack of remorse, so long as it is not explicitly 

linked to a defendant's prior claim of innocence or not guilty 
 7 

plea or exercise of his right to remain silent, is an appropriate 

factor to consider at sentencing"). 

 We agree with our sister states that a trial court may 

consider a defendant's lack of remorse at sentencing, even when 

the defendant has chosen to enter an Alford plea. Consideration 

of a defendant's attitude "play[s] an important role in the 

court's determination of the rehabilitative potential [and future 

dangerousness] of the defendant." Howry, 896 P.2d at 1004. The 

court must take into account a wide range of information, 

including the defendant's remorse or lack thereof, in determining 

"'a sentence that best effectuates the criminal justice system's 

goals of deterrence (general and specific), incapacitation, 

retribution and rehabilitation.'" Shifflett, 26 Va. App. at 259, 

494 S.E.2d at 166 (quoting Gilliam v. Commonwealth, 21 Va. App. 

519, 524, 465 S.E.2d 592, 594 (1996)). Consequently, we hold 

that a defendant's Alford plea does not require that the trial 

court disregard his lack of remorse at sentencing. 

 In the instant case, appellant acknowledged that he "hurted 

[sic] people in my life, my family" and was "ashamed of being in 

this situation." He also promised "to go on that straight path." 

 However, appellant did not mention the victims of the shootings 

or their families. The trial court considered this lack of 

remorse along with appellant's criminal history and the other 

"evidence in this case" and imposed the maximum sentences allowed 
 8 

under the statute.1

 See Code §§ 18.2-10(b), 18.2-26(1), and 

18.2-32.2 Where, as here, "the maximum punishment is prescribed 

by statute, 'and the sentence imposed does not exceed that 

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

discretion.'" Valentine v. Commonwealth, 18 Va. App. 334, 339, 

443 S.E.2d 445, 448 (1994) (citation omitted). We hold that once 

appellant was found guilty, the trial court did not err in 

considering his lack of remorse as one factor in sentencing and 

did not abuse its discretion in imposing sentences within the 

statutory requirements. 

 Our holding does not, as appellant suggests, require him to 

assume responsibility for crimes while asserting his innocence. 

Appellant's denial of responsibility would not be inconsistent 

with an expression of sympathy for the victims of the "situation" 

to which he referred during allocution. Appellant's lack of 

concern for the victims of the crimes for which he was convicted 

was a factor relevant when assessing his future dangerousness, 

which the trial court properly considered at sentencing. 

 Lastly, appellant argues that requiring him to accept 

 

 1The presentence report disclosed an extensive juvenile 

record, multiple probation violations and revocations, and 

outstanding bench warrants in New Jersey on charges of attempted 

murder, cocaine possession, and weapons and probation violations. 

 2First degree murder is punishable as a Class 2 felony with a 

maximum penalty of life in prison. Attempted first degree murder 

is punishable as a Class 4 felony with a maximum penalty of ten 

years in prison. See Code §§ 18.2-10(b), 18.2-26(1), and 

18.2-32. 
 9 

responsibility and express remorse for a crime he has not 

admitted in exchange for a potentially lighter sentence 

effectively compels him to be a witness against himself in 

violation of the Fifth Amendment. However, an expression of 

remorse does not presuppose acceptance of criminal 

responsibility. Appellant was not compelled to testify against 

himself; he merely had to choose whether to show sympathy for the 

victims. "'The Fifth Amendment does not insulate a defendant 

from all "difficult choices" that are presented during the course 

of criminal proceedings.'" Doss v. Commonwealth, 23 Va. App. 

679, 687-88, 479 S.E.2d 92, 96-97 (1996) (quoting United States 

v. Frazier, 971 F.2d 1076, 1080 (4th Cir. 1992), cert. denied, 

506 U.S. 1071 (1993)) ("Placing the defendant in a position of 

relinquishing the instrumentality of a crime to which he had been 

found guilty, in order to receive a suspended sentence, is a 

choice that did not impermissibly burden the defendant's 

privilege against self-incrimination."). Appellant exercised his 

right to allocution at sentencing and chose not to express 

remorse for the victims. The trial court was within its 

discretion when it considered this choice along with all other 

relevant sentencing information. For the foregoing reasons, we 

affirm the convictions. 

 Affirmed.