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Fazili v. Commonwealth

Court of Appeals of Virginia

December 3, 2019

CHANCELIER FAZILI
v.
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF FAIRFAX COUNTY David Bernhard, Judge

          Dawn M. Butorac, Public Defender, for appellant.

          Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Chief Judge Decker, Judges Humphreys and Russell Argued at Leesburg, Virginia

          OPINION

          ROBERT J. HUMPHREYS JUDGE

         On March 19, 2018, appellant Chancelier Fazili ("Fazili") was indicted in the Circuit Court of Fairfax County ("circuit court") on one count of aggravated sexual battery of A.G.K., a child under the age of thirteen, in violation of Code § 18.2-67.3. The indictment alleged that the incident occurred on or about March 28, 2017.

         On April 4, 2018 Fazili entered a guilty plea pursuant to a written plea agreement. By order entered on August 9, 2018, the circuit court sentenced Fazili to twenty years' imprisonment, with fifteen years suspended for a period of ten years. As a condition of probation, the court ordered that Fazili "have no use of any device that can access internet unless approved by his Probation Officer." Fazili assigns the following errors on appeal:

I. The trial court abused its discretion by not considering relevant factors and giving them significant weight and instead gave significant weight to irrelevant and improper factors when fashioning the sentence for Mr. Fazili.
II. The trial court erred by ordering that Mr. Fazili "not use any device that can access the internet unless approved by his Probation Officer."
A. This probation condition was an error because it violates Mr. Fazili's First Amendment rights under the United States Constitution.
B. This probation condition was an error because it violates Virginia Code § 19.2-303 by improperly delegating the parameters of this special condition to the probation officer.
C. This probation condition was an error because it is an unreasonable condition of probation.

         I. BACKGROUND

         Fazili initially stood charged with object sexual penetration of a child under the age of thirteen, in violation of Code § 18.2-67.2. However, pursuant to a written plea agreement, Fazili pleaded guilty to one count of aggravated sexual battery of a child under the age of thirteen, in violation of Code § 18.2-67.3. The Commonwealth proffered that the evidence would show Fazili's sister asked Fazili to babysit her two children. On March 28, 2017, she came home to find Fazili in bed with her five-year-old daughter, A.G.K., and two-year-old son. A.G.K. was crying and told her mother "Uncle touched me." She also told a forensic interviewer that Fazili "put 'an onion' in her," "that this had happened more than once in her bedroom," and that "her pants got wet from 'the onion soup.'" Fazili later admitted that "his fingers went between the lips of her vagina but were not fully into the ...


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