Alisha Renee Merritt v. Commonwealth of Virginia
69 Va. App. 452
| Va. Ct. App. | 2018Background
- Merritt was sentenced in 2009 with part of her sentence suspended conditioned on payment of restitution, fines, and costs; she defaulted on payments and a revocation proceeding followed in 2017.
- A show cause was issued with return date April 19, 2017; hearing was reset to May 31, 2017 after service by posting was recorded and Merritt did not appear.
- A capias issued for the May 31 failure to appear; Merritt was arrested and later claimed she never received notice because she had moved.
- At trial the court found Merritt guilty under Va. Code § 19.2-128(C) (failure to appear misdemeanor) after implicitly rejecting her testimony about notice.
- On appeal, this Court ordered briefing on Lawson v. Commonwealth; the Commonwealth conceded Lawson controls and that § 19.2-128 does not reach failures to appear at revocation hearings.
- The Court considered whether Rule 5A:18 (contemporaneous objection) bars raising the statutory-applicability issue not argued below and whether the ends-of-justice exception permits reversal.
Issues
| Issue | Plaintiff's Argument (Merritt) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| Whether evidence proved willful failure to appear (notice element) | Merritt argued she never received notice so failure to appear was not willful | Commonwealth argued record supported service by posting and trial credibility finding | Trial court found willfulness; appeal did not rely on this ground because court resolved a different legal issue |
| Whether Code § 19.2-128 applies to revocation proceedings | Merritt did not raise this below; she focused on notice/willfulness | Commonwealth conceded Lawson controls and § 19.2-128 does not cover revocation hearings | Court held § 19.2-128 does not apply to revocation proceedings; conviction was error |
| Whether Rule 5A:18 bars appellate review of statutory-applicability issue not raised below | Merritt’s procedural default would ordinarily preclude review | Commonwealth raised the issue in its brief and at oral argument and urged application of the ends-of-justice exception | Court held Rule 5A:18 does not bar review because the Commonwealth raised the issue and the exception applies when conviction is for non-criminal conduct |
| Whether the ends-of-justice exception to Rule 5A:18 applies | Merritt did not invoke the exception on appeal | Commonwealth invoked the exception; court independently analyzed it | Court applied the ends-of-justice exception, concluding Merritt was convicted for conduct not proscribed by the statute and reversed the conviction |
Key Cases Cited
- Lawson v. Commonwealth, 38 Va. App. 93, 561 S.E.2d 775 (Va. Ct. App. 2002) (statute prohibiting failure to appear does not plainly reach revocation-show-cause hearings)
- Masika v. Commonwealth, 63 Va. App. 330, 757 S.E.2d 571 (Va. Ct. App. 2014) (ends-of-justice exception narrow; used when error is clear, substantial, material)
- Redman v. Commonwealth, 25 Va. App. 215, 487 S.E.2d 269 (Va. Ct. App. 1997) (to show miscarriage of justice appellant must show conviction for non-criminal conduct or record affirmatively negates an element)
- Epps v. Commonwealth, 47 Va. App. 687, 626 S.E.2d 912 (Va. Ct. App. 2006) (appellate courts not bound by parties’ concessions of law)
- Smith v. Commonwealth, 282 Va. 449, 718 S.E.2d 452 (Va. 2011) (whether conduct falls within a statute is a question of law reviewed de novo)
- Berger v. United States, 295 U.S. 78 (U.S. 1935) (prosecutor’s duty to seek justice, not merely conviction)