COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Huff, Judges Petty and McCullough Argued by teleconference

JUSTIN DWAYNE STUMP MEMORANDUM OPINION * BY v. Record No. 1902-13-3 CH IEF JUDGE GL EN A. HUFF MARCH 24, 2015 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF MONTGOMERY COUNTY Marcus H. Long, Jr., Judge Steven D. Smith (SD Smith, Esquire, PLLC, on brief), for appellant. Kathleen B. Martin, Senior A ssistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

On September 9, 2013, the Circuit Court of Montgomery County (“trial court”) found that Justin Dwayne Stump (“appellant”) failed to comply with the term s of his probation, which was ordered pursuant to a deferred dispositi on on two counts of possession of a controlled substance, in violation of C ode § 18.2-250. Consequently, the trial court revoked appellant’s deferred disposition and found appellant guilty of the possession charges pursuant to Code § 18.2-251. On appeal, appellant argues that [t]he trial court erred in finding [appellant] in violation of the requirements of his deferred disposition for failure to attend a mandatory drug treatment program . . . because [appellant] was incarcerated and convicted on other unrelated charges, which fact was known to the Commonwealth at the time of the plea agreement, and [he] was not give n an opportunity to comply with the requirements of Code § 18.2-251. For the following reasons, this Court affirms the trial court’s ruling.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - I. BACKGROUND On appeal, “‘we consider the evidence and al l reasonable inferences flowing from that evidence in the light most favorable to the Co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 ) (quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed,

the evidence is as follows. On November 18, 2012, appe llant was charged with two counts of possession of a controlled substance, in violation of Code § 18.2-2 50. Subsequently, on Febr uary 6, 2013, appellant was arrested on unrelated charges of grand larcen y and breaking and entering. Appellant has been continuously incarcerated since that time. On May 29, 2013, after appellant’s arrest for the unrelated char ges, the trial court determined that appellant was e ligible for a deferred disposition under Code § 18.2-251 for his possession charges. Consequently, appellant ente red into a plea agreemen t with the Commonwealth for a deferred disposition whereby appellant was placed on “supervise d probation for one year.” As part of his probation, appellant was required, am ong other things, to “perform and complete 200 hours of community service under the supervisio n of New River Valley [Alcohol Safety Action Program],” undergo a substanc e abuse assessment, and comple te a treatment and education program. After a noncomplian ce letter was filed by New River Valley ASAP, however, the trial

court issued a rule to show cause for appellant’s failure to comply with the conditions of his probation. On August 14, 2013, appellant was convicted on the unrelated grand larceny and breaking and entering charges and was sentenced to three ye ars’ and three months’ in carceration. On that same day, the trial court heard the show cause for appellant’s failure to comply with the terms of his probation. At the hearing, appella nt argued that he was not able to comply with VASAP because he- 3 - had been continuously incarcerat ed on the unrelated grand larceny and breaking and entering charges since February 6, 2013. Additionally, appe llant asserted that he committed no affirmative act since entering the plea agreem ent that rendered him unable to comply with the terms of his probation. The trial court note d that this failure was “[appella nt’s] own fault.” The case was continued for sentencing guidelines to be prepared. On September 4, 2013, appellant stipulated that he had failed to complete the terms of his probation, but asserted that he had not anticipated the length of the sentence he would receive for the unrelated charges when he ente red the plea agreement. Additionally, appellant represented that he was still ready to comply with the terms of hi s deferred dispositi on. Nevertheless, the trial court revoked appellant’s deferred disposition and en tered a final convictio n order under Code § 18.2-251. This appeal followed.

II. ANALYSIS On appeal, appellant contends that the trial co urt erred in finding that appellant failed to comply with the terms of his probation. Specifi cally, appellant argues th at under the contractual principle of “impracticability” a ppellant should have been relie ved of his obligations under the plea agreement. Code § 18.2-251 provides that [w]henever any person who has not previously been convicted of any offense under this article or under any statute of the United States or of any state relating to na rcotic drugs . . . pleads guilty to . . . possession of a controlled substance under § 18.2-250 . . ., the court, upon such plea if the facts found by the court would justify a finding of guilt, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him on probation upon terms and conditions. If, however, a defendant violates “a term or condition” of his probation and deferred disposition, the trial court “may enter an adjudication of guilt and proceed as otherwise provided.” Id.- 4 - Statutes that permit circuit courts to im pose alternatives to incarceration, such as Code § 18.2-251, are “highly remedial” in nature and are liberally constr ued to provide trial

courts valuable tools for rehabilitation of criminals. Grant v. Commonwealth, 223 Va. 680, 684, 292 S.E.2d 348, 350 (1982). As a result, circuit cour ts retain “full author ity to independently evaluate [a] defendant’s compliance” with a deferred disposition order, Connelly v. Commonwealth, 14 Va. App. 888, 890, 420 S.E.2d 244, 245 (1992), and “weigh any mitigating factors presented by the defendant,” Kese lica v. Commonwealth, 34 Va. App. 31, 36, 537 S.E.2d 611, 613 (2000). Accordingly, this Court reviews adjudications of guilt under Code § 18.2-251 for an abuse of discretion by the circuit cour t. Connelly, 14 Va. App. at 890, 537 S.E.2d at 245. In the present case, appellant stipulated that he failed to comply with the terms of his probation, and the trial court heard and considered appellant’s mitigating factors for this failure. Specifically, appellant informed the trial cour t that he was unable to comply with VASAP

because of his incarceration and that he had not anticipated the length of sentence he would receive for the unrelated charges. Additionally, a ppellant asserted that he was still willing to comply with the terms of his probation. Notwithst anding these mitigating factors, the trial court noted that appellant’s failure to comply with VASAP was “[appellant’s] own fault.” Not only was appellant presently incarcerated on the unrelated charges when he entered the plea agreement, but he was also aware of the possibility of his c ontinued incarceration. Nevertheless, he chose to bind himself to the te rms of probation in the plea agreement to get a deferred disposition on his possession charges. Additionally, appellant was aware that the plea agreement did not – indeed, could not – guarantee that the charges would be dismissed without a finding of guilt. See Code § 18.2-251 (“Upon viol ation of a term or condition, the court may enter an adjudication of guilty and proceed as otherwise provided.”).- 5 - Accordingly, in accepting the plea agreement and deferred disposition, appellant accepted

the inherent risk that a conviction and lengthy se ntence on the unrelated charges could result in his being unable to comply with VASAP. Therefor e, this Court holds that the trial court, after “weigh[ing the] mitigating fact ors presented by [appellant],” Keselica, 34 Va. App. at 36, 537 S.E.2d at 613, did not abuse its discretion by finding appellant guilty under Code § 18.2-251. Nevertheless, appellant conte nds that his failure to fulf ill his obligations under the plea agreement should be excused. He argues that his obligation to comply with VASAP was rendered “impracticable” by his inca rceration. Appellant correctly no tes that Virginia law, while emphasizing constitutional issues, allows plea agreements to be construed in accordance with principles of contract law: “In the process of determining wh ether disputed plea agreements have been formed or performed, courts have necessarily drawn on the most relevant body of developed rules and principles of private law, those pertaining to the fo rmation and interpretation of commercial contracts. But the courts have recognized that . . . the defendant’s underlying ‘contract’ ri ght is constitutionally based and therefore reflects concerns th at differ fundamentally from and run wider than those of co mmercial contract law.” Sandy v. Commonwealth, 25 Va. App. 1, 5, 486 S. E.2d 102, 104 (1997) (quoting United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986)), rev’d on other grounds, 257 Va. 87, 509 S.E.2d 492 (1999). Continuing, appellant cites to § 266 of the Restatement (Second) of Contracts, entitled “Existing Impracticability or Frustration,” which provides: (1) Where, at the time a contract is made, a party’s performance under it is impracticable without his fault because of a fact of which he has no reason to know and the non-existence of which is a basic assumption of which the contract is made, no duty to render that performan ce arises, unless the language or circumstances indicate to the contrary. (2) Where, at the time a contract is made, a party’s principal purpose is substantially frustrated without his fault by a fact of which he has no reason to know and the non-existence of- 6 - which is a basic assumption of which the contract is made, no duty of that party to render th at performance arises, unless the language or circumstance s indicate the contrary. Assuming without deciding that th ese principles of contract la w apply to the present case, appellant’s argument still fails. Both subsections of § 266 of the Restatemen t (Second) of Contracts require that the impracticability or frustration of purpose result because of “ a fact of which [appellant] has no

reason to know .” (Emphasis added). In the present case, at the time appellant entered into a plea agreement with the Commonwealth for a deferred di sposition, he had been arrested for, and was awaiting trial on, the unrelated charges. As such, he had a “reason to know” that his performance under the agreement could be inhibi ted depending on the outcome of his unrelated charges. Given these circumstances, appellant’ s attempt to rely on § 266 of the Restatement (Second) of Contracts to reliev e his obligations under the pl ea agreement is to no avail. 1

III. CONCLUSION For the foregoing reasons, this Court affirms the ruling of the trial court.

Affirmed.

1 On appeal, appellant also argues for the fi rst time that he could have complied with VASAP had the services been provided to him th rough the Department of Corrections. While it is true that Code § 18.2-251 allows for “substan ce abuse assessment . . . and . . . treatment” programs to be provided “through the Department of Corrections,” appellant’s plea agreement required him to complete VASAP through “New River Valley ASAP,” not through a “similar program which is made available through the Depa rtment of Corrections.” Code § 18.2-251. As appellant was currently incarcerated and aware of the possibility of continued incarceration when he entered the plea agreement, he could have as ked that the services be provided through the Department of Corrections, but he did not. Fu rthermore, appellant failed to present this argument before the trial court. As suc h, it is barred by Rule 5A:18. See Johnson v. Commonwealth, 58 Va. App. 625, 637, 712 S.E.2d 751, 757 (2011) (“‘Making one specific argument on an issue does not preserve a separate legal point on the same issue for review.’” (quoting Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) ( en banc ))).