Thomas D. Horne, Judge
Robert M. Vernail, Esquire
Assistant Commonwealth's Attorney
20 East Market Street
Leesburg, Virginia 20176 William L. Fitzpatrick, Esquire
Sevila, Saunders, Huddleston & White, P.C.
30 North King Street
Leesburg, Virginia 20176 Gentlemen:
On December 21, 2004, the Defendant was convicted of malicious wounding in an incident in which he was found to have kicked the victim in the side of the head with such force as to inflict visible and significant injury. This is his first criminal conviction. Injuries to the victim included multiple breaks in the jaw, injuries to the teeth, and a mild concussion. Additional psychological effects of the trauma were reported.
In sentencing the defendant, the Court applied sentencing guidelines that reflected a "serious physical injury" having been inflicted. This resulted in the addition of two points on Schedule A and fourteen points on Schedule C. The ultimate impact of these differences is that the sentencing range is increased from a low of 1 year and 9 months to 2 years and 5 months; a mid point of 3 years and 4 months to 4 years and 6 months; and a high of 4 years and 11 months to 6 years and 1 month. While the sentencing guidelines are not binding on the Court, the Court is required to consult the guidelines prior to passing sentence and justify any deviation from those guidelines in writing.
The Court found the defendant guilty of the offense charged in the amended indictment, that is, he did "…feloniously and unlawfully, maliciously stab, cut, or wound Blake Allan Harrison, by kicking cause such person bodily injury with the intent to maim, disfigure, disable, or kill in violation of Section 18.2-51 of the Code of Virginia." By Order entered on June 1, 2005, the defendant was sentenced to serve nine years in the Department of Corrections, with six years suspended for three years following his release from confinement on terms and conditions contained in the Order.
The probation officer, in her report noted that, "it is unclear if the victim's injuries are permanent." Subsequent to the sentencing event, counsel for the defendant prepared a number of hospital records relating to the condition of the injured victim. Permanency of the injury is a relevant factor both in the preparation of the guidelines and in the application of traditional sentencing principles to this case. For purposes of sentencing, "serious bodily injury" is defined as, "…a life threatening injury, an injury that resulted in a permanent physical disability or death." The father of the victim offered the only testimony at the sentencing hearing that the victim suffered permanent physical injury from the actions of the defendant.
The defendant assaulted the victim on October 19, 2003. Surgical intervention occurred that day where his treatment was described as an, "…open reduction, internal fixation of his right mandibular angle fracture and closed reduction with intermaxillary fixation of the left mandibular parasymphysis facture was accomplished under general anesthesia without complications." A CAT scan on October 19, 2003, was negative for trauma, although the physician at Loudoun Healthcare noted that the victim suffered a mild concussion. On examination, reported on October 30, 2003, that although the victim, "…had suffered a significant concussion at the time of his beating…his concussive syndrome (would) typically resolve over time but may take anywhere from 6 weeks to 6 months to 18 months." While there was testimony presented by the victim and his father that the victim suffered temporary paralysis following the incident, there is no medical evidence in any of the reports to support this claim. The Nursing Admission Data from October 19, 2003, noted that the strength levels of both the left and right extremities were strong. Additionally, the Patient Care Record on October 20, 2003, only noted that the victim was experiencing left shoulder pain and discomfort in his left hand. The discharge summary noted that the victim had a good range of motion and good motor strength in all of his extremities.
By November 24, 2003, the victim's memory was medically described as "back to baseline," and no report of neurological problems was noted. However, in April 2004, the victim continued to complain of symptoms attendant to postconcussive syndrome. A recommendation was made that he seek evaluation at a brain injury center. Psychological testing in July 2004, showed the victim had "difficulties with memory, attention and focus. Well-learned skills, including academic functions, are at above average level, with interference from the former leading to inefficiency in consistent performance."
On January 13, 2005, the victim's parents had him admitted to the Mental Health Unit at Loudoun Hospital Center. The evidence suggests that the victim had abused his prescription for Adderall. Adderall had been prescribed in late November 2004, to help him concentrate on his studies. According to further testimony, the victim's behaviors became very unusual in December 2004.
During his spring semester at Virginia Tech, the victim participated in Academic Coaching Services for Students with Disabilities. A Faculty Accommodations Form for the semester indicated that certain accommodations, i.e. extended time (double) for testing, quiet room for testing, use of calculator, etc., needed to be made for the victim. The victim maintained a 3.79 grade point average in high school and a 3.02 grade point average during his first year of college.
The defendant presented evidence showing that the victim was in excellent physical condition and continued to participate in lacrosse in high school following the incident. However, there appears to be ongoing mental health issues. The victim received special accommodations in his high school classes and during his first year of college at Virginia Tech due to his short-term memory loss, problems with paying attention and focusing.
A review of relevant case law shows that the determination of permanency is made on a case-by-case basis. There is no question as to the viciousness of the Defendant's actions of repeatedly kicking the sleeping victim in the face with such force as to break bones to the degree that they could be seen protruding inside the victim's mouth and cause a mild concussion that resulted in loss of memory of the incident. However, the record does not support the use of the guidelines where a "serious bodily injury " has been sustained.
The Commonwealth and the Defendant are given twenty-one days to file any additional written arguments (not exceeding ten pages) relating to the decision of whether, based upon the finding herein, the Court should reconsider the sentence imposed.
Mr. Fitzpatrick may draw an Order consistent with this opinion.
Very truly yours,
Thomas D. Horne, Judge