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Ellis v. Commonwealth

Court of Appeals of Virginia

May 8, 2018


          FROM THE CIRCUIT COURT OF HENRY COUNTY David V. Williams, Judge

          Perry H. Harrold for appellant.

          Donald E. Jeffrey, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General; Elizabeth Kiernan Fitzgerald, Assistant Attorney General, on brief), for appellee.

          Present: Judges Humphreys, Petty and AtLee Argued at Lexington, Virginia



         Leroy Ellis pleaded guilty pursuant to North Carolina v. Alford, 400 U.S. 24 (1970), [1] to buying or receiving stolen property in violation of Code § 18.2-108(A). On appeal, Ellis argues that the trial court erred "in failing to grant [his] Motion for Reconsideration which requested relief from being held liable for the payment of restitution to the victim for costs not associated with offenses to which (Ellis) pled guilty to and for offenses which were nolle prosequi." For the reasons stated below, we reverse the trial court's order and remand for resentencing.


         Leroy Ellis was indicted for burglary, in violation of Code § 18.2-89; grand larceny, in violation of Code § 18.2-95; larceny of a firearm, in violation of Code § 18.2-95; and possession of a firearm by a convicted felon, in violation of Code § 18.2-308.2. Before trial, the trial court granted the Commonwealth's motion to amend the grand larceny indictment to receiving stolen property, in violation of Code § 18.2-108(A). Thereafter, Ellis entered an Alford guilty plea to the amended indictment, and the Commonwealth moved to nolle prosequi the other three charges. There was, however, no written plea agreement, nor was there any mention of restitution. Before accepting Ellis's plea, the trial court heard the following proffer of evidence from the Commonwealth:

[O]n February the 16th of 2015, [the victim] was working nights at Ply-Gem in Rocky Mount. He was living in an apartment on River Road in the Bassett section of Henry County. When he came back from work that evening, he discovered his front door had been kicked in and there was a Glock handgun, a flat screen TV, two watches, and an Xbox game system missing from his house. He called the police and then Investigator Jerry Farmer responded. Investigator Farmer took pictures of the residence and everything that was around there and talked to [the victim]. There was a surveillance video from a local business that showed a person that was very indistinct and a white or light colored SUV pull up and that was pretty much all you could tell from that particular video. The defendant at the time was a co-worker of [the victim's] and Investigator Farmer, in talking to [the victim], thought he might be a suspect, developed the idea that Mr. Ellis might be a suspect in the matter. He got a search warrant for Mr. Ellis's home on Preston Scales Road in Henry County. There was a white, light-colored Chevy SUV at . . . Mr. Ellis's home, on March the 4th when the search warrant was served, and the officers that served the search warrant found the television that had the matching serial numbers of [the victim's] television in the residence there at, where Mr. Ellis lived. Mr. Ellis stated that he bought the TV from, for two hundred fifty dollars at the car wash in Stanleytown from a man driving a dark gray Impala. And his girlfriend, who was also in the house, says she noticed there was a TV there when she came home from work on the third of March, but she didn't know how it got there and she just figured that Mr. Ellis [had] bought it.

         The Commonwealth also noted that the case was "a circumstantial one."

There were other circumstances that did point toward Mr. Ellis; however, in all fairness to Mr. Ellis since he's pleading to a lesser charge, the Commonwealth doesn't really wish to get into those. [The victim], for his part, when this case was last set, informed the Commonwealth about a day before that he was going to be in Virginia Beach for his vacation and would not be here, so that in essence would be the facts the Commonwealth would adduce at trial and a little bit behind why the Commonwealth is making this particular offer.

         After preparation of a pre-sentence report and the submission of a victim impact statement, the trial court entered an order sentencing Ellis to five years of incarceration with four years and eight months suspended. A condition of Ellis's suspended sentence was that he make restitution in the amount of $1, 500 to the victim in the case.[2] At the sentencing hearing, defense counsel inquired about the court's $1, 500 order of restitution. The trial court stated:

COURT: Yes sir, the victim asked for twenty four forty five. I don't think that's appropriate. I did order the fifteen hundred ...

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