Timothy L. Fitzpatrick v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges McClanahan, Petty and Senior Judge Fitzpatrick
Argued by teleconference
TIMOTHY L. FITZPATRICK
MEMORANDUM OPINION* BY
v. 	Record No. 1508-06-4 	JUDGE JOHANNA L. FITZPATRICK
FEBRUARY 5, 2008
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jane Marum Roush, Judge
John Kenneth Zwerling (Andrea L. Moseley; Zwerling, Leibig &
Moseley, P.C., on briefs), for appellant.
Alice T. Armstrong, Assistant Attorney General II (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Timothy L. Fitzpatrick was convicted of using a computer to solicit a minor in violation
of Code § 18.2-374.3(B). The jury recommended a jail sentence of twelve months and a fine of
$2,500. The trial court imposed the recommended jail sentence, the recommended fine, and
imposed a two-year term of post-release supervision pursuant to Code § 19.2-295.2. On appeal,
Fitzpatrick presented several arguments contending that Code § 19.2-295.2 was unconstitutional;
however, he conceded at oral argument that the Supreme Court’s decision in Alston v.
Commonwealth, 274 Va. 759, 652 S.E.2d 456 (2007), rejected all but one of his arguments. In
this remaining argument, Fitzpatrick argues that Code § 19.2-295.2 violates the constitutional
doctrine of the separation of powers between the judicial branch and the executive branch
because it permits the executive branch, through the Parole Board, to impose a sentence that was
previously suspended by the trial court pursuant to Code § 19.2-295.2. The Commonwealth
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.

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argues that Fitzpatrick failed to make this specific argument to the trial court and Rule 5A:18
bars consideration of it on appeal. We agree with the Commonwealth and affirm.
“The Court of Appeals will not consider an argument on appeal which was not presented
to the trial court.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998).
See Rule 5A:18.
Under this rule, a specific argument must be made to the trial court
at the appropriate time, or the allegation of error will not be
considered on appeal. A general argument or an abstract reference
to the law is not sufficient to preserve an issue. Making one
specific argument on an issue does not preserve a separate legal
point on the same issue for review.
Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en banc)
(citations omitted).
During Fitzpatrick’s sentencing hearing, he argued to the trial court that Code
§ 19.2-295.2 was unconstitutional and violated the separation of powers clause. Fitzpatrick
stated:
Very briefly on the separation of powers clause, there’s no
question that supervised release is additional punishment. In other
words, the jury has sentenced [him] to twelve months. Let’s say
they had sentenced [him] to ten years, the full penalty. This Court
would therefore be imposing really a twelve-year sentence,
potentially, with two suspended but that could be served for a
violation of a curfew violation or not even a crime.
So the reason that the Legislature cannot delegate to the
Court whether this is a ten-year, eleven-year, twelve-year,
thirteen-year offense, and the fact that it’s really not like a
thirteen-year sentence with suspension can be appreciated if you
look at the fact that if it was probation, it would go to the probation
officer. It would come back to the Court.
It wouldn’t go to the Parole Board, okay, and if you look at
the legislative history of the statute, prior to its taking effect, there
was a statute in place that was passed that said the Parole Board
has got to let somebody out at least six months prior to the serving
of their sentence, so that there will be a period of supervised
release.
So the amount of supervised release came off of the
sentence. This is adding it to the sentence. This, the way it’s

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being interpreted. And also, Your Honor, this law took effect the
very day that the parole law expired. So it’s a clear transition. But
it’s being imposed in dramatically different fashion.
A review of Fitzpatrick’s argument shows that he failed to argue to the trial court that
Code § 19.2-295.2 permits the executive branch, through the Parole Board, to perform a judicial
function of imposing a sentence imposed pursuant to Code § 19.2-295.2. Accordingly,
Rule 5A:18 bars our consideration of this argument on appeal.
Fitzpatrick argues the ends of justice exception of Rule 5A:18 applies because the
relinquishment of power to the executive branch is a constitutional violation and it is a clear,
substantial, and material error.
Rule 5A:18 applies to arguments involving constitutional principles. Ashby v.
Commonwealth, 33 Va. App. 540, 544-45, 535 S.E.2d 182, 185 (2000).
Fitzpatrick had ample opportunity to present this argument to the trial court, but failed to
do so. Additionally, Fitzpatrick has failed to affirmatively demonstrate that a “miscarriage of
justice has occurred.” Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272
(1997) (“In order to avail oneself of the [ends of justice] exception, a defendant must
affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have
occurred.”). Fitzpatrick has failed to provide a sufficient basis to invoke the ends of justice
exception to Rule 5A:18. Accordingly, we affirm the trial court’s decision to impose a two-year
term of post-release supervision pursuant to Code § 19.2-295.2.
Affirmed.