THE COURT OF APPEALS OF VIRGINIA
All the Justices
ARTHUR KELSEY JUSTICE.
Duy Du pleaded guilty to statutory rape of his 13-year-old
half-sister, aggravated malicious wounding of his father, and
malicious wounding of his stepmother. Du filed a petition for
appeal with the Court of Appeals, contending that the trial
court abused its discretion by ordering lifetime probation
following his incarceration and by ordering no contact with
the victims as a condition of his suspended sentences. The
Court of Appeals denied Du's petition for appeal in a per
curiam order, holding the trial court did not abuse its
discretion. We agree and affirm.
born in Vietnam. He never knew his father, who immigrated to
the United States when Du was a small child. When Du tuned
18, Du's father asked Du's mother to inform Du that
his father was in the United States and that he wanted Du to
live with him, his wife, and their young daughter. Du
accepted the offer and traveled to the United States in 2009,
having had no previous relationship with his father, his
father's wife, or their daughter. He did not know any of
them prior to his arrival in the United States. J.A. at 165.
point after his arrival, Du developed "a big
grudge" against his father and stepmother, "got
really mad, " and then "left" their home with
no apparent intention of returning. Id. at 127.
Thereafter, in 2013, four years after Du's arrival to the
United States, Du returned to his father's home and
entered through a window of his half-sister's bedroom.
She was 13 years old at that time. Du, then 22 years old,
engaged in vaginal and oral sex with her. When her mother discovered Du naked in her
daughter's bedroom, her attempt to intervene led to a
fight between Du, his stepmother, and his father. Du ended
the episode by taking a metal baseball bat and striking his
father and stepmother multiple times in their heads, knocking
both unconscious. A portion of the attack was recorded by a
surveillance camera the family had installed in their home.
As they lay on the floor bleeding, Du told his half-sister,
"They're dead." Id. at 69. When the
stepmother unexpectedly regained consciousness, Du again
struck her in the head with the baseball bat causing her to
fall again to the floor unconscious.
Du's father and stepmother sustained serious injuries.
His father was flown to a Roanoke hospital where a
neurosurgeon stated that the father was in the process of
"dying" due to his head injury. Id. at 70.
Surgeons performed a craniotomy to remove a portion of the
father's skull. His condition continued to worsen, and,
as of the time of trial, Du's father was receiving
full-time care at a nursing home and was "dependent on
others for daily living activities." Id. His
head injuries have severely damaged his cognitive capacities,
leaving him at times unable to recognize his wife and
daughter when they visit him.
stepmother was also severely injured. The blows to her head
from the baseball bat required 11 stitches to close the wound
and extensive follow-up care. Since the attack, she has
suffered from chronic panic attacks, emotional instability,
insomnia, and a lingering sense of paranoia. She was unable
to work as a tailor for three months during her recovery
period and has incurred, along with her husband,
non-reimbursable medical expenses.
to trial, Du wrote several letters to his father and
stepmother attempting to obstruct the ongoing investigation
of his charges and to keep them from testifying against him
at trial. Stating that he had received advice from
"other inmates, " Du wrote:
I am writing this quick letter in hopes and asking that you
will not answer the detectives' questions nor make a
statement and please do not appear in court on
1/22/14. That is the first day, after the second day, I
hope that mother will not appear. Dear mother,
after 2miss[ed] court appearances, the case will be dropped
and the charges will be dismissed therefore the courts will
let me go. That is the first thing that I eluded [sic]
to in my previous letters and the 1/22/14 date is closely
I am writing this letter to you concerning the upcoming court
appearance 1/22/14. . . . I am requesting that mother and
father do not answer the detectives' questions
prior to 1/22/14 and I am asking that mother and father do
not appear in court on 1/22/14 until I can retain
I have asked a few other inmates and they said the best way
for me to get an opportunity to return home to father and
mother is 1. to ask mother not to appear in court on
the first court date 1/22/14. The courts will appoint another
date and if father and mother do not appear again then
the courts will dismiss the case. 2. [I]f father and
mother do appear in court and the courts ask you to recall
the events, then all father and mother have to say is "I
want PLEA TO THE 5th (fifth)" it is the right to
refuse to make a statement. Just answer the
questions pertaining to your address, name, birth date,
social security number, etc. . . . [I]f the courts or
anyone ask you mother and father about the events or your
health, the hospital or anyone ask about the events or any
aspects pertaining to the situation, all father and mother
have to say is "I want PLEA TO THE 5th" and I will
do the same. Except stating my name, age and address, I
will also only respond, "I want PLEA TO THE 5th".
Those [are] the words of advice from the inmates that have
been incarcerated for a long time.
[P]lease give me word that you will not make accusations
against me in court. . . .
Id. at 87-90 (emphases added).
father and stepmother did not respond to these letters. Nor
did they take his several phone calls. His last letter
expressed his ongoing dissatisfaction with her failure to
comply with his demands: "At the court appearance you
could have asked the courts to pardon me and request bond;
however, you still have not granted me that request."
Id. at 90.
failed in his attempt to pressure his father and stepmother
into obstructing the prosecution, Du decided to plead guilty
to statutory rape of his 13-year-old half-sister, aggravated
malicious wounding of his father, and malicious wounding of
his stepmother. At his sentencing hearing, the Commonwealth
offered into evidence the victim impact statements, including
one from Du's stepmother. The trial court received the
victim impact statements and made them part of the
evidentiary record. See id. at 156-58.
counsel represented that the stepmother was present in the
courtroom, but she was never called to testify at the
sentencing hearing. Her victim impact statement, however,
expressed her views clearly. In her statement, she said that she
remembered her daughter, immediately after the beating,
pleading with Du to "leave immediately." Victim
Impact Statement at 1. Appearing
"very calm, " Du responded, "Don't panic,
they are dead." Id. As the stepmother struggled
to remain semi-conscious, she worried that she and her
husband would both die and that their daughter "would
fall into [Du's] hand." Id. "Ever
since this incident, " the stepmother explained, "I
have lived in constant fear. Every day is a constant reminder
of that horrible night." Id. She has had
nightmares "every night" since the beating, and on
"[m]any nights" she "can see [Du] beating
[her] and taking a knife to slit [her] throat."
Id. She continued, "I constantly imagine that
[Du] is hiding in the corners of the house and could jump out
to beat and kill me." Id. This constant,
chronic state of fear has left her "deteriorated"
and "very discouraged." Id. at 2.
point in the stepmother's statement did she say anything
that could be interpreted as a desire to have an ongoing
relationship with Du. Exactly the opposite is true. The
stepmother's statement reveals that Du's crimes
against her, her husband, and her daughter have left her in a
constant state of fearful panic at the very thought of Du.
sentencing hearing, the prosecutor confronted Du with
"gruesome" pictures that he had drawn of a
"mother and daughter who have been injured." J.A.
at 163. The "mother's arm is hacked off, there's
blood, there seems to be a lot of violence" portrayed in
the picture, the prosecutor asserted. Id. In
response, Du acknowledged his picture but explained he meant
it only as a "story" of the "sacrifice of a
mother for her child." Id.
hearing the evidence and Du's allocution, the trial court
stated that the "brutal beating" Du had given his
father and stepmother was "beyond understanding."
Id. at 169. The court found Du's attempt
"to express shame or remorse" through his
"huddled" demeanor wholly unbelievable.
Id. The court imposed a sentence of life
imprisonment on the aggravated malicious wounding charge, a
20-year sentence on the malicious wounding charge, and a
10-year sentence on the statutory rape charge. The active
period of incarceration, after the court suspended portions
of these sentences, required Du to serve 50 years in the
penitentiary. The court placed Du, upon release from
imprisonment, on probation for the remainder of his life.
the unique circumstances of the case, the trial court also
conditioned Du's suspended sentences on the requirement
that he have "no contact with any of the three
victims." Id. at 170. After the court announced
that condition, the prosecutor - unaccompanied by any
supportive remarks by Du's defense counsel - stated that
Du's stepmother "requested that it not be ordered
for her." Id. No other explanation was given.
Nothing in the record, save this one sentence, discussed the
in the sentencing hearing, Du's counsel had represented
to the trial court that the stepmother was present in the
courtroom. Id. at 165. At no point during the
hearing, however, did she personally explain her view of the
no-contact condition. Nor did the prosecutor offer any
clarification of what the stepmother meant, why she felt that
way, or how she came to that decision. The court, however,
responded with its own clarification: "I don't want
him to have any contact with her. . . . If she wishes to
write him she can." Id. at 170. Du's
counsel did not object to the court's ruling or make any
response to it.
the entry of the final sentencing order, Du filed a motion to
reconsider seeking to undo the court's imposition of
lifetime probation as well as the condition forbidding him
from contacting the victims. Du's motion did not state
that counsel had consulted his stepmother about the motion or
that she joined in Du's requested relief. Nor did
Du's stepmother seek leave to file any pleading on her
own behalf. The court denied the motion to ...