COURT OF APPEALS OF VIRGINIA Present: Chief Judge Huff, Judge Decker and Senior Judge Clements Argued at Richmond, Virginia

DEZMON C. REAUX, S/K/A DEZMON CARY LEE REAUX MEMORANDUM OPINION * BY v. Record No. 1350-14-2 CH IEF JUDGE GL EN A. HUFF JULY 7, 2015 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Theodore J. Markow, Judge Designate J. Martelino, Jr., for appellant. Victoria Johnson, Assistant A ttorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Dezmon C. Reaux (“appellant”) appeals his co nvictions of possession of a Schedule I or II controlled substance, in vi olation of Code § 18.2-250, and po ssession of a firearm on or about his person while in possession of a Schedule I or II controlled substance, in violation of Code § 18.2-308.4(B). On appeal, appellant argues that the Chesterfield County Circuit Court (“trial court”) “abused its discretion and committed structural error when it sentenced . . . [appellant] to a two-year mandatory minimum sentence, given thatthe trial court, in addition to [appellant’s] trial counsel, failed to inform [appellant] adequately of the consequences of his plea . . . .” For the following reasons, this Court holds that the appeal is proc edurally barred by Rule 5A:18.

I. BACKGROUND On appeal, “‘we consider the evidence and al l reasonable inferences flowing from that evidence in the light most favorable to the Co mmonwealth, the prevailing party at trial.’” Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) ( en banc )

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - (quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed,

the evidence is as follows. On March 24, 2013, Officer Tamlyn (“Tamlyn”) of the Chesterfield County Police Department initiate d a traffic stop of a vehi cle driven by appellant. As Tamlyn approached the vehicle, he observed a .45 caliber Beretta firearm on the dashboard; appellant had a valid concealed carry permit. A canine officer resp onded to the scene, and his dog alerted on appellant after sniffing the vehicle. Consequently, the officers searched the car and fou nd a bag containing a green leafy material “consistent with mariju ana” and a pill bottle containing three Schedule II amphetamines. On July 15, 2013, a gran d jury returned a true bill for tw o felony charges against appellant: possession of a Schedule I or II co ntrolled substance, in violation of Code § 18.2-250 (“possession charge”), and possession of a fire arm while simultaneously possessing a Schedule I or II controlled substance, in violation of Code § 18.2-308.4 (“firearm charge”). On January 28, 2014, appellant entered into a plea agreement 1 whereby appellant would plead guilty to the possession charge,

which would be taken under advisement to be dismissed pursuant to Code § 18.2-251. 2 Additionally, in the plea agreement, appellant stip ulated that there was “s ufficient evidence on the [firearm charge].” In return, the Comm onwealth agreed to continue the firearm charge “without adjudication to the sentencing date” to be “dismissed” if appell ant “successfully completes” the

1 Appellant’s counsel on appeal did not represent appe llant at trial.

2 Code § 18.2-251 provides that [w]henever a person who has not pr eviously been convicted of any offense under this article . . . plead s guilty to or enters a plea of not guilty to possession of a controlled substance under § 18.2-250 . . . , the court, upon such plea if the facts found by the c ourt would justify a finding of guilt, without entering a judgment of guilt and with the consent of the accused, may defer fu rther proceedings and place him on probation upon terms and conditions.- 3 - drug monitoring program. If appellant failed to complete the program, howe ver, the plea agreement provided that he would be found guilty of both charges. In connection with his guilty pl ea on the possession charge, appellant completed a “Waiver of Rights” form, whereby appellant acknowledged th at he had discussed, with his attorney, the nature of the charge pending against him, the proof required of the Co mmonwealth to secure a conviction, possible defenses , and that he understood the rights waived upon entry of a gu ilty plea. Additionally, appellant acknowledged that the posse ssion charge carried a maximum punishment of ten years’ imprisonment and a $2,500 fine. At the guilty plea hear ing, the trial court a rraigned appellant on th e possession charge, and, consistent with the terms of the plea agreement, appellant entered a guilty plea. After finding that the plea was entered freely and in telligently, the trial cour t explained to appell ant that his charges would be dismissed if he successfully completed the deferred judgment program, but that he would

“be convicted of two felonies” if he was unsuccessful. The tria l court then found the evidence sufficient to support both the possession and firearm charges and accepted the plea agreement. Consistent with the plea agreement, appellant wa s not arraigned on the fire arm charge and did not enter a plea to that charge. On July 7, 2014, the tr ial court found that appe llant violated the terms of the plea agreement because he had failed to provide prescriptions to his probation offi cer and tested positive for oxycodone. At the hearing on this violation, appellant testified that he did not understand that he faced a mandatory minimum two-year sentence for his fir earm charge if he failed to abide by the terms of the agreement. Additiona lly, appellant’s counsel asked the trial court “to consider that [appellant] has some kind of punishment right now in that he ha s been incarceratedtwo months . . . without bond.” Appellant’s counsel further aske d that appellant be “allo w[ed] . . . to do his Community Corrections” – that is, complete the terms of the plea agre ement – “because he . . .- 4 - didn’t understand all the terms.” Notably, appella nt did not seek to withdraw his guilty plea, but only asked to be given another oppo rtunity to complete the terms of the agreement. The trial court found appellant had violated the terms of the agre ement and, conse quently, found hi m guilty of both the possession and firearm charges. The hearing then proceeded to sentencing, wherein appellant’s counsel asked that the trial court consider appellant’s testimony that “if he had known . . . the consequences of a potential violation that there would be this two year mand atory” he would have complied with the terms of the agreement. Appellant then asked the trial court “to consider if there’s any other way to resolve this” other than the two-year mand atory minimum. The trial court then sentence d appellant to three years’ incarceration on the posse ssion charge, all suspended, and five years on the firearm charge with three years suspended to reflect the two-y ear mandatory minimum. This appeal followed.

II. ANALYSIS On appeal, appellant contends that the tria l court abused its discretion when sentencing appellant. Specifically, appellant asserts that his sentence was an abuse of discretion because he was not informed that there was a two-year manda tory sentence if he failed to comply with the terms of the plea agreement. A ppellant continues by arguing that the failure to inform appellant of all of the consequences of his plea was a violation of his Sixth Amendment rights and, therefore, structural error. As an initial matter, however, the Commonwealth asserts that Rule 5A:18 should bar this appeal. Rule 5A:18 provides, in relevant part, that “[n]o ruling of the trial court . . . will be considered as a basis for reversal unless an objec tion was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice.” “Rule 5A:18 requires a litigant to make timely and specific objections, so that the trial court has ‘an opportunity to rule in telligently on the issues presented, thus avoiding- 5 - unnecessary appeals and reve rsals.’” Brown v. Common wealth, 279 Va. 210, 217, 688 S.E.2d 185, 189 (2010) (quoting West v. Commonw ealth, 43 Va. App. 327, 337, 597 S.E.2d 274, 278 (2004)). “In addition, a specific, contemporan eous objection gives the opposing party the opportunity to meet the objecti on at that stage of the proceeding.” Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991). “Rule 5A:18 applie s to bar even constitutional claims.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). “Under settled principles, the ‘same argument mu st have been raised, with specificity, at trial before it can be considered on appeal .’” Johnson v. Commonwealth, 58 Va. App. 625, 637, 712 S.E.2d 751, 757 (2011) (quoting Correll v. Commonwealth, 42 Va. App. 311, 324, 591 S.E.2d 712, 719 (2004)). “‘Making one specific ar gument on an issue does not preserve a separate legal point on the same issue for revi ew.’” Id. (quoting Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) ( en banc )). In the present case, appellant’s argume nt was not properly preserved for our consideration on appeal because appellant did no t allege a violation of Sixth Amendment rights before the trial court. Instead, appellant onl y argued that his ignorance of the two-year mandatory minimum sentence should justify giving him a second chance at fulfilling the terms of the plea agreement. Additionall y, at sentencing, he vaguely asked the trial court “to consider if there’s any other way to re solve this.” Notably, he did not seek to withdraw his guilty plea, nor did he argue that the plea was in any way invalid. In fact, he did not mention the Sixth Amendment. Had he done so, the trial court could have had an o pportunity to rule on the arguments now presented to this Court, and th e Commonwealth would have had an opportunity to respond. See Brown, 279 Va. at 219, 688 S.E.2d at 190 (“Because the Commonwealth did not . . . articulate an argument that the circuit court did not have the authority to impose a juve nile sentence upon [the appellant], the issue was not preserved for a ppeal.”); see also Johnson, 58 Va. App. at 637, 712- 6 - S.E.2d at 757 (making one specific argument on an i ssue does not preserve a separate legal point on the same issue for review). Furthermore, appellant does not argue that this Court should invoke either the good cause or ends of justice excep tions to Rule 5A:18, and this Cour t will not consider the Rule 5A:18 exceptions sua sponte in the present case. Edwards, 41 Va. App. at 761, 589 S.E.2d at 448.

III. CONCLUSION Based on the foregoing, this Court holds that the appeal is procedurally barred by Rule 5A:18 and, therefore, affi rms the trial court’s ruling.

Affirmed.