COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Beales and Decker Argued at Alexandria, Virginia

TIMOTHY IRVIN MEARS MEMORANDUM OPINION * BY v. Record No . 1131-16-4 JUDGE MARLA GRAFF DECKER FEBRUARY 6, 2018 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Brett A. Kassabian, Judge Kathryn C. Donoghue, Senior A ssistant Public Defender, for appellant. Victoria Johnson, Assistant Attorney General ( Mark R. Herring , Attorney General, on brief), for appellee.
Timothy Irvin Mears appeals hi s sentences for being an accesso ry before the fact to statutory burglary and grand larceny, grand larceny, and larceny with int ent to sell, in v iolation of Code §§ 18.2-18, -91, -95, and -108.01. On appeal, he contends that the circuit court erred in denying his request for a continuance of his sentencing hearing. He al so suggests that h e was entitled by statute to a substance abuse asse ssment and that the court comm itted reversible error by failing to order such an assessment. We hol d that the circuit court did n ot commit reversible error by denying his motion for a continuance. We further conclude that the app ellant failed to preserve for appeal his argument that the court erred by not ordering a substance a buse assessment. Accordingly, we affirm the appellant’s sentences.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - I. BACKGROUND In 2012, the appellant was indict ed in Fairfax County for the i nstant four offenses. 1 The crimes involved the theft of jewel ry from the appellant’s wife and a neighbor in the townhome community where they resided, as well as the theft of tools fro m the community’s maintenance shed. On April 8, 2013, the appella nt entered guilty pleas to those charges and was convicted on his pleas. The court ordered apresentence re port and continue d the matter. At the sentencing hearing on June 28, 2013 (the 2013 sentencin g), the appellant’s counsel made an oral motion for a continua nce. He noted that the appel lant, who was incarcerated, was participating in Fairfax County’s Intensive Addictions Program (the IAP program) and was scheduled to finish the program in August. He represented that the appellant, “to his credit,” was “apparently doing well” in the I AP program. Counsel also indic ated that the pres entence report “detail[ed] a long history with substance abuse and . . . ultimately recommend[ed] an ADS evaluation,” asserting that this was “the primary basis” for th e continuance motion. Although counsel did not explain the mean ing of the abbreviation ADS in his argument, the presentence report specifically proposed “[i ]ntensive . . . substance abuse treatment.” 2 The report concluded, “Due to [the appellant’s] signi ficant substance abuse issues, i t is recommended that [he] undergo a substance abuse evaluation i n order to address the possibilit y of long-term residential treatment.” The report also ref lected the appellant’s statemen t to the probation officer that he “hop[ed] to be placed in [a] long term residential treatment pr ogram following his sentenc[es].”

1 The appellant was indicted for a fifth offense, receiving stol en property, which was later “nolle prosequied.”

2 A letter that counsel introduce d at sentencing referenced “ADS ” and was signed by a substance abuse counselor with t he “Alcohol and Drug Court Serv ices,” suggesting that ADS might have been an abbreviation for this program associated wit h the Fairfax-Falls Church Community Services Board.- 3 - The appellant’s attorney furth er noted at the 2013 sentencing that, due to the denial of the appellant’s bond request and his recent conviction on other cha rges in neighboring Loudoun County, he was “not going anywhere.” Emphasizing his opinion t hat “the whole case really revolves around drug use,” the appe llant’s counsel requested a continuance so that the appellant could “finish IAP” and “have a n ADS evaluation.” He did not, h owever, assert that the court

was required to order an ADS or substance a buse evaluation. He also did no t suggest that the appellant was statutorily entitle d to an evaluatio n or referenc e a specific statute. The circuit court denied the r equest for a continuance and “pr oceed[ed] to sentencing.” After receiving evidence from t he appellant, the judge stated, “I can’t ignore the fact that this is by my count a fourth burglary on your record, if I include the Loudoun County matter[, a]nd . . . some fourteen prior felonies .” By orders entered July 22, 2013 , the court sentenced him on each of the four new convictions to t wo years six months, explicitly ordering that the sentences be served consecutively, for a tot al of ten years, plus a period o f post-release supe rvision and the payment of restitution. 3 About ten months later, on M ay 20, 2014, the appellant filed a motion for reconsideration of his sentences (the 2014 mo tion). In doing so, he pointed ou t that the Loudoun County burglary conviction mentioned by t he judge at the 2013 sentenci ng had been overturned. He also noted that one of the other crim es previously listed in the pre sentence report as a burglary “was so designated in error” and that it had been reclassified as gr and larceny. Accordingly, he

3 The court entered two sentenc ing orders. Each order covers tw o of the four convictions and contains a clerical error in the “SENTENCING SUMMARY” porti on. Each correctly states that the “TOTAL SENT ENCE IMPOSED” is two years six months “on e ach count,” to “run consecutive with” the sentences for the other two convictions. However, each order erroneously indicates that the “TOTAL TIME T O SERVE” is two years six month s, whereas each should reflect total time of five years. See also Code § 19.2-308 (pr oviding that multiple sentences of confinement “shall not run concur rently[] unless expressly orde red by the court”).- 4 - represented to the court tha t he stood convicted of only two burglaries rather than the four previously noted by the circuit court at the 2013 sentencing. Regarding his substance abuse, t he appellant asserted in his 2 014 motion that he would “soon successfully complete” the IAP Program. 4 He also argued that he requested at the 2013 sentencing “that [a Code §] 18.2- 254 evaluation be performed pr ior to his sentencing” but that his request “was denied.” He fu rther indicated, however, that “such an evaluation was performed in Loudoun County.” The appe llant noted that the eva luation was attached to the motion for reconsideration, and he a sked the circuit court to r eview it. 5 Finally, he asked the court to “suspend a significan t portion” of his sentences to “a llow him to partici pate in probation post-incarceration,” a nd to grant any appropriate additional re lief. The substance abuse assessment—dated June 27, 2013, and perfor med in Loudoun County by a licensed clinical psy chologist pursuant to Code § 1 8.2-254—reflects that it was prepared based in part on a “[c]lin ical interview” with the app ellant. 6 The assessment concluded that the appellant, who was thirty-seven years old, had a “seve re” drug and alcohol addiction from which he had suffered since he was a teenager. The evalua tor opined that due to the length

4 The appellant had represente d at the June 2013 sentencing hear ing that he expected to complete the IAP program “in Aug ust,” presumably referring to A ugust 2013. Other evidence in the record indicates that the IAP program in which he participa ted was a three-month program. In making his motion for recons ideration in May 2014, the appel lant provided no explanation for why his completion of the program a ppeared to have been delayed by more than ten months.

5 Code §§ 18.2-251.01 and -254 refer to a n initial “screening” f or substance abuse, which may be followed by an “assessment” if a substance abuse problem is identified. See § 18.2-251.01(A). The report of June 27, 2013, submitted by th e appellant is titled, “FORENSIC PSYCHOLOGICAL EVALUATION ,” with the subheading “Substance Abuse Assessment (§18.2-254).” (Emphasis omitted and added). For purposes of t his opinion, we use the terms “evaluation” and “assessment” inter changeably, just as the eval uating psychologist and the parties have done.

6 We note that the Loudoun County e valuation was dated one day b efore the June 28, 2013 sentencing hearing in Fairfax County.- 5 - and severity of his addictions and his report that he had not undergone any substance abuse treatment prior to h is participation in th e jail’s IAP program, the appellant “would be an appropriate candidate” for “inpatient . . . treatment.” Altern atively, the evalu ator recommended “a stint in a 28-day rehab program or a graduated release/halfw ay house-type program at the end of his prison sentence.” He al so opined that the appellant wou ld “need to participate in intensive outpatient substance abuse servi ces once released from treatmen t/prison,” to include regular random drug screening. At the hearing on the appellant ’s 2014 motion to reconsider hi s sentences, he argued that the “primary basis” for the mo tion was that he stood “convicted of two burglaries instead of four” due to adjustments in hi s criminal history. The appellan t’s counsel also argued that he had been participating in the IAP program and pointed to “the [Code § 18.2-]254 evaluation” performed a year earlier i n Loudoun County. Counsel further su ggested that the appellant was “truly repentant” and “motivat [ed] . . . [to] address the addic tion issues which have led to the . . . criminal behavior.” As a result , counsel asked the court to “c onsider suspending a greater portion of [the appellant’s] sente nce.” The Commonwealth repli ed that the appellant had “an extremely extensive criminal hi story” even without the two burg laries that had been removed from his record. The court also a llowed the appellant to speak . He said among other things that he was “focused on . . . not letting the alcohol and drugs and the addiction rule [his] life anymore.” The circuit court granted the appellant’s 2014 motion to recon sider his sentences, explaining that it did so “not so much [because of] the stateme nt that [the appellant] made” but because of the change in his criminal history resulting from th e fact that he had two fewer burglary convictions than when the court originally sentenced h im. The court also noted that it was not “ignoring his double di git number of f elony convictions .” The court ordered that the- 6 - appellant’s sentences for gr and larceny and larceny with intent to sell be altered to run concurrently rather than consecu tively and that all other “term s and conditions of the [2013] sentencing order[s] . . . remain i n full force and effect,” res ulting in a sentence of seven years six months to serve. The appellant was subsequentl y awarded a delayed appeal coveri ng both the 2013 sentencing orders and the 2014 s entencing modification order.
II. ANALYSIS The appellant contends that th e circuit court erred in denying his motion to continue the 2013 sentencing hearing. He also s uggests that he was statutor ily entitled to a substance abuse assessment prior to sentencing a nd that the circuit court commi tted reversible e rror by failing to order one. A. Motion for a Continuance The appellant argues that the c ircuit court abus ed its discret ion in denying his request to continue his sentencing heari ng. He further suggests that he w as prejudiced by the denial and that his submission of the Loudoun C ounty substance abuse asses sment at the 2014 motion hearing did not remedy this prejudice. Whether to grant or deny a continuance rests within the “sound discretion” of the circuit court. Ortiz v. Com monwealth, 276 Va. 705, 722, 667 S.E.2d 751 , 762 (2008) (quoting Haugen v. Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27, 34, 645 S.E.2d 261, 265 (2007)). A court abuses its discretion when it “commits a clear error of j udgment.” Lawlor v. Commonwealth, 285 Va. 187, 213, 738 S.E.2d 847, 861 (2013) (quo ting Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 352, 71 7 S.E.2d 134, 137 (2011)). The abuse-of-discretion standard also “includes review to determine that the discretion was not guided by erroneous legal conclusions” because a circuit court “by definition abuses its- 7 - discretion when it makes an erro r of law.” Por ter v. Commonwea lth, 276 Va. 203, 260, 661 S.E.2d 415, 445 (2008) (quoting Koon v. United States, 518 U.S. 81, 100 (1996)). Further, “[a]n appellate court can reverse” an erroneous denia l of a continuance motion “only if the . . . ‘abuse of discretion’ . . . caused ‘resulting prejudice.’” Cooper v. Commonwealth, 54 Va. App. 558, 565, 680 S.E.2d 361, 364 (2009) (emphasis added) (quoting Ortiz, 276 Va. at 722, 667 S.E.2d at 762). Meeting both parts of this two-part test is “essential to reversal.” Butler v. C ommonwealth, 264 Va. 614, 621, 570 S.E.2 d 813, 817 (2002) (quoting Ferguson v. Colonial Pip eline Co., 206 Va. 719, 722, 146 S.E.2d 173, 175 (1966)). “The absence of one renders inconse quential the presence of the othe r.” Bolden v. Commonwealth, 49 Va. App. 285, 290, 640 S.E.2d 526, 529 (2007), aff’d on other g rounds, 275 Va. 144, 149, 654 S.E.2d 584, 586-87 (2008); see Lowery v. Commonwealth, 9 Va. Ap p. 304, 307, 387 S.E.2d 508, 510 (1990) (assuming an abuse of discretion and holding no prejudice was shown). Accordingly, an appellate court may not reverse “if the defenda nt ‘has shown no prejudice’” from the denial of his motion for a continuance. Bolden, 49 Va . App. at 290, 640 S.E.2d at 529 (quoting Quintana v. Commonwealth, 224 Va. 127, 135, 295 S.E.2d 643, 646 (1982)). Further, the prejudice component “may not be presumed; it must appear fr om the record.” Id. (quoting Lowery, 9 Va. App. at 307, 387 S.E.2d at 510). The appellant’s counsel, in making the 2013 motion for a contin uance, noted that the appellant was participating in F airfax County’s IAP program whi le incarcerated, w as “apparently doing well in” the program, and was scheduled to finish it thre e months later. Counsel also indicated that the presentence report “detail[ed] a long history with substance abuse and . . . ultimately recommend[ed] an ADS evaluation.” Emphasizing his o pinion that “the whole case really revolves around drug use,” th e appellant’s counsel reque sted a continuance so that the appellant could “finish IAP” and “have an ADS evaluation.”- 8 - The appellant is unable to dem onstrate prejudice on the facts of this case. Therefore, this Court need not decide whether t he 2013 denial of the request fo r a continuance constituted an abuse of discretion. 7 The appellant argues that he was prejudiced because, due to t he unavailability of a substance a buse assessment at the 2013 sent encing hearing, he was deprived of the opportunity to “present[] independent evidence of his su bstance abuse issues” and the possibility of “a treatment plan as an alternativ e to lengthy i ncarceration.” The appellant, however, was on notice of the L oudoun County substance abuse as sessment dated June 27, 2013, when he was sentenced i n Fairfax County on June 28, 2013. Neve rtheless, he made no mention of that assessment during the 2013 sentencing hearing, either t hrough counsel or when he spoke personally to the court. In any event, the appellant ha d a second opportunity to make an argument based on the substance abuse assessment at the 2014 motion hearing, and more significantly, he made use of that opportunity. He attached the 2013 substance abuse assessm ent performed pursuant to Code § 18.2-254 in Loudoun County to his 2014 motion to reconsider, and he referenced it in his argument to the court. He sugge sted that, based on the informa tion contained in the assessment, coupled with his participation in the IAP program and his obvio us “motivation” to “do the hard work it’s going to take to . . . a ddress the addiction issues w hich have led to the . . . criminal behavior,” the circuit court should “consider suspending a grea ter portion of his sentence.” The

7 An appellate court decides cases on “the best and narrowest gr ounds available.” Dietz v. Commonwealth, 294 Va. 123, 134, 804 S.E.2d 309, 315 (2017) ( quoting Commonwealth v. White, 293 Va. 411, 419, 799 S.E.2d 494, 498 (2017)). We hold that the best and narrowest ground here is our conclusion that the appellant failed to prov e prejudice and that this ruling obviates the need to consider wheth er the court abused its disc retion in denying the continuance motion. See Cooper, 54 Va. App. at 566, 680 S.E.2d at 365 (app lying “best and narrowest ground” principles in this same f ashion on review of a case inv olving the denial of a continuance motion (quoting Johnson v. Commonwealth, 45 Va. App. 113, 117 n .3, 609 S.E.2d 58, 60 n.3 (2005))).- 9 - appellant concedes on brief th at the Loudoun County evaluation “represents the information [he] sought to obtain and introduce” at the 2013 sentencing. The appellant argues, however, t hat when he presented the asses sment with the 2014 motion, the court docketed the mo tion and reconsidered the sent ence only as to corrections in his criminal history that were unrelat ed to his substance abuse pro blem. 8 Despite the appellant’s argument, nothing in the circuit court’s ruling suggests that i t refused to consider the substance abuse assessment as part of the 2014 proceedings. See Bolden, 49 Va. App. at 290, 640 S.E.2d at 529 (noting that prejudice from the denial of a motion for acontinuance must appear from the record); Smith v. Commonw ealth, 16 Va. App. 630, 635, 432 S.E.2 d 2, 6 (1993) (holding that the appellant bore the burden of presenting a record sufficient to permit the appellate court to conclude that the trial court abused its discretion in denying his motion for a continuance); Tomlinson v. Commonwealth, 8 Va. App. 218, 223, 380 S.E.2d 26, 29 (1989) (viewing the evidence in the light most favor able to the Commonwealth, the p arty who prevaile d in the trial court, for the purpose of revie wing the court’s ruling denying the defendant’s continuance motion); cf. Commonwealth v. White, 293 Va. 411, 421 & n.4, 799 S.E.2d 494, 499 & n.4 (2017) (in applying harmless error principles, holding that “ap pellate review ‘is not limited to the evidence mentioned . . . by the trial court in its ruling’” (qu oting Du v. Commonwealth, 292 Va. 555, 566, 790 S.E.2d 493, 500 (2016))).

8 For the first time at oral argum ent, the appellant asserted wi thout significant elaboration that a motion for reconsiderati on is “not the same” as a new se ntencing hearing, implying that the reconsideration could not c ure the claimed prejudice. On b rief, however, he conceded that the reconsideration “could have r endered the [circuit] court’s error harmless” but did not do so on the facts of this case. We do not consider the contradictor y undeveloped argument asserted for the first time at oral ar gument. Cf. Bartley v. Commonweal th, 67 Va. App. 740, 744-46, 800 S.E.2d 199, 201-02 (2017) (noting per R ule 5A:20(e) that the ap pellate court “is entitled to have the issues clearly d efined and to be cited pe rtinent authority” in the appellant’s br ief and that the Court need not consider the a ssertions of a litigant that do no t meet this requirement (quoting Jones v. Commonwealth, 51 Va. App. 730, 734, 660 S.E.2d 343, 34 5 (2008))).- 10 - Contrary to the appellant’s c ontention, the court’s ruling cons titutes an implicit conclusion that the contents of t he assessment, along with the appellant’s claim that it entitled him to serve a lesser number of years in prison, did not in fac t warrant any additional adjustment in his sentence. Here, the appell ant presented the substance abuse assessment to the court as part of his 2014 motion and asked the c ourt to consider it, both in the written motion and during the related oral argument. The Commonwealth did not object to the admission of the assessment, and the court gave no indication t hat it refused to consider th e assessment’s contents. “In Virginia, ‘we presume [trial] judges know the law and correctlyapply it.’” Duggins v. Commonwealth, 59 Va. App. 785, 789 n.2, 722 S.E.2d 663, 665 n.2 (2012) (alteration in original) (quoting White v. White, 56 Va. App. 214, 217, 692 S. E.2d 289, 290-91 (2010)); cf. Dillsworth v. Commonwealth, 62 Va. App. 93, 100, 741 S.E.2d 818 , 822 (2013) (recognizing the legal principle that a court i s presumed to disregard evidence that it rules is inadmissible “in the absence of clear evidence to the contrary” (quoting Cole v. Commonwealth, 16 Va. App. 113, 116, 428 S.E.2d 303, 305 (1993))). In light of the applicable standard of review, the fact that the circuit court did not take the action that the appellant sought does not compel the conclusion that it refused to consider his reque st or abused its discretion by rejecting that request, particularly in light of the appellant’s l engthy criminal history. 9 Cf. Montalvo v. Commonwealth, 27 Va. App. 95, 99, 497 S.E.2d 519, 521 (1998) (holding that the trial cour t did not abuse its discretion in

9 The appellant suggested for the first time at oral argument th at his submission of the Loudoun County evaluation could not cure the circuit court’s fa ilure to order such an evaluation in Fairfax County because the Loudoun County evaluation indicat es that he was not a resident of Loudoun County and was ineligible fo r treatment there. However , contrary to the appellant’s interpretation, the record does not establish that he would have been eligible for treatment in Fairfax County. The appellant bor e the burden of presenting a record from which the appellate court may assess whether an erro r occurred and, if so, whether prejudice resulted. See Smith, 16 Va. App. at 635, 432 S.E.2d at 6; Tomlinson, 8 Va. App. at 223, 380 S.E.2d at 29. Consequently, the record’s silen ce on this point inures to the benefit of the Commonwealth for purposes of appeal.- 11 - refusing first-time drug offender status for a defendant with a significant drug problem who had a prior criminal record of non-drug-related offenses). Accordingly, in light of the a ppellant’s submission of the subs tance abuse assessment with his 2014 motion to reconsid er and his references to it in his argument to the court, the appellant has failed to demonstr ate that he was prejudiced by t he denial of his 2013 motion for a continuance in order to obtain a substance abuse assessment. B. Entitlement to a Substance Abuse Assessment The appellant contends that Virg inia’s statutory scheme mandate d that he receive a substance abuse assessment pr ior to the 2013 sentencing and tha t the circuit court committed reversible error by failing to orde r one at that time. He also argues that if he did not adequately present this claim to the cir cuit court at the 2013 sentencing hearing, the en ds of justice exception to Rule 5A:18 applies to permit the Court to reach th e merits of his claim. 10 The appellant did not preserve this a ssignment of error for appeal under Rule 5A:18 because he did not object contemporaneously. Additionally, any error was harm less, which negates an application of the rule’s ends-o f-justice exception to excuse the appellant’s failure to make a contemporaneous objection. Rule 5A:18 provides that “[n]o ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except . . .

10 The appellant assigns error onl y to the circuit court’s failur e to “order[] a substance abuse assessment .” (Emphasis added). The assign ment of error granted for revi ew by this Court does not include a claim that the court erred by not ordering s ubstance abuse treatment . See Rule 5A:12(c)(1)(i) (“Only assi gnments of error assigned in the petition for appeal will be noticed by this Court.”); Hern andez v. Commonwealth, 59 Va. App . 37, 38 n.1, 716 S.E.2d 484, 484 n.1 (2011) ( en banc ) (recognizing that “counsel ma y not substantively alter his as signments of error . . . from those origina lly granted for appeal withoutleave of Court”). Consequently, we consider only whether the court’ s failure to order an assessmen t was error.- 12 - to enable the Court of Appeals to attain the ends of justice.” 11 In determining wheth er a litigant has satisfied the requirements of the rule, Virginia’s appellate co urts have “consistently focused on whether the trial court had the opportunity to rule intelligent ly on the issue.” Scialdone v. Commonwealth, 279 Va. 422, 437, 68 9 S.E.2d 716, 7 24 (2010) (app lying Rule 5:25, the Supreme Court of Virginia counterpart to Rule 5A:18). “In addition, ‘a specific, contemporaneous objection gives the opposing part y the opportunity to meet the objection at that stage of the proceeding.’” Id. (quoting Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991)). Application of the rule’s ends-o f-justice exception requires pr oof of an error that was “clear, substantial and mate rial.” Bazemore v. Commonwealth, 42 Va. Ap p. 203, 219, 59 0 S.E.2d 602, 610 (2004) ( en banc ) (quoting Brown v. Commonwealth, 8 Va. App. 126, 132, 380 S.E. 2d 8, 11 (1989)). In other words, the ex ception applies where error has occurred and application “is necessary to avoid a grave injust ice or the denial of essential rights.” Brown v. Commonwealth, 279 Va. 210, 219, 68 8 S.E.2d 185, 190 (20 10) (quoting Charles v . Commonwealth, 270 Va. 14, 17, 613 S.E.2d 432, 433 (2005)). Proo f that any error was harmless negates a fi nding of mate riality and bars application of the ends-of-justice exception. Phoung v. C ommonwealth, 15 Va. App. 457, 465-66, 424 S.E.2d 712, 717 (1992); see Commonwealth v. Bass, 2 92 Va. 19, 27-28 & n.5, 786 S.E.2d 165, 169-70 & n.5 (2016). Here, the appellant failed to pres erve for appeal his argument that he was entitled by statute to a substance abuse assessment prior to the 2013 sente ncing. At the sentencing hearing, he asked the court for a continua nce so that he could finish th e IAP program and obtain “an ADS evaluation.” However, he did not e xplain what an ADS evaluatio n was or connect it to a formal

11 The appellant does not allege t hat the good-cause exception to Rule 5A:18 applies, and a review of the record does not provide any reason to invoke th at exception here. See Jones v. Commonwealth, 293 Va. 29, 39 n.5, 795 S.E.2d 705, 710 n.5 (decl ining to consider sua sponte either the ends-of-justice or good-cause exception to Rule 5:25 , the Supreme Court of Virginia counterpart to Rule 5A:18) , cert. denied, 138 S. Ct. 81 (2017).- 13 - substance abuse assessment. A dditionally, at no point did he a rgue that he was statutorily entitled to a substance abuse a ssessment or that the court was required to order one for any other

reason. Further, the record establishes that any error committed by the circuit court in failing to order a substance abuse assessm ent prior to the 2013 sentencing was harmless. See, e.g., Commonwealth v. Swann, 290 Va. 194, 201, 776 S.E.2d 265, 269 (2 015) (recognizing that non-constitutional error is harm less when “the error did not in fluence the [fact finder] or had but slight effect” (quoting Anderson v. Commonwealth, 282 Va. 457, 467, 717 S.E.2d 623, 628 (2011))). The appellant obtained the same substance abuse asse ssment in Loudoun County that he sought to have in Fairfax Count y. The report was dated June 27, 2013, one day prior to the 2013 sentencing hearing. Further, it was prepared with the app ellant’s participation, putting him on notice of its existence at a time when he could have brought it to the attention of the court at the 2013 sentencing hearing. Additionally, he submitted that a ssessment to the circuit court in conjunction with his 2014 motion to reconsider his sentences. He was also able to argue the motion, in which he referenced the substance abuse assessment c onducted in Loudoun, at a time when the circuit court was able to and did alter his sentences. Once again, the fact that the circuit court did not take the action that the appellant sought based on his substance abuse history and assessment does not compel the conclusion that it refused t o consider the information contained in the assessment. Ins tead, the circuit court’s acti on, viewed under the appropriate standard of review, establishes only that it had a different op inion regarding the impact of that information on the appropriate sentences. See Smith, 16 Va. Ap p. at 635, 432 S.E.2d at 6; Tomlinson, 8 Va. App. at 223, 380 S.E.2d at 29.- 14 - The appellant has failed to est ablish a basis for this Court to invoke the ends-of-justice exception to Rule 5A:18 because any error that may have occurre d was harmless. Accordingly, Rule 5A:18 bars this assignment of error.
III. CONCLUSION We hold that the circuit court did not commit reversible error by denying the appellant’s motion for a continuance becaus e he failed to prove any resulti ng prejudice. We further conclude that the appellant did not preserve for appeal his claim that t he court erred by not ordering a substance abuse assessment. He did not argue to the court that it was required to order one, and he received such an assess ment in another juri sdiction and present ed that assessment to the court in conjunction with his 2014 motio n to reconsider his sentences. Consequently, the appellant is not entitled to invoke the ends-of-ju stice exceptio n to Rule 5A:18 to excuse his failure to register a contemporaneous objection. For these reasons, we affirm the ap pellant’s sentences and remand the case for the limited purpose of c orrecting a clerical error in each of the two sentencing orders entered on July 22 , 2013, as noted supra . See Code § 8.01-428(B); Howell v. Comm onwealth, 274 Va. 737, 742, 652 S.E .2d 107, 109 (2007); Tatum v. Commonwealth , 17 Va. App. 58 5, 592-93, 440 S.E.2d 133, 138 (1994). Affirmed and remanded.