783 S.E.2d 62
Va. Ct. App.2016Background
- In Sept. 2013 Nunez pleaded guilty to possession under Va. Code § 18.2-250; the court found the facts sufficient but withheld a finding of guilt and ordered a deferred disposition under § 18.2-251 with supervised probation.
- At the presentence review in Nov. 2013 Nunez (with counsel) confirmed no corrections to the presentence report and the court continued the deferred disposition for one year.
- Probation later reported Nunez was taken into ICE custody in Feb. 2014 and voluntarily departed to Bolivia in Apr. 2014; he did not return or have an opportunity to complete special conditions of probation.
- The court called the case on Nov. 25, 2014 and Nunez was absent; after further proceedings the court on Jan. 9, 2015 found Nunez guilty and imposed a $2,500 fine suspended in full.
- Nunez appealed arguing the court erred by (1) finding guilt and sentencing in his absence, (2) finding a probation violation when noncompliance was not willful due to deportation, and (3) declining to dismiss under Starrs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court erred in finding guilt/sentencing in Nunez’s absence | Commonwealth: any absence error harmless | Nunez: presence required under Va. Code § 19.2-259 and Sixth Amendment | Court: assumed error but held it harmless beyond a reasonable doubt |
| Whether sentencing in absentia is subject to harmless-error analysis | Commonwealth: constitutional/statutory right is subject to harmless-error review | Nunez: right may be structural and not subject to harmless-error | Court: applied harmless-error (Chapman standard) and found error harmless |
| Whether failure to complete deferred-disposition conditions must be willful | Nunez: deportation made noncompliance non-willful so revocation/conviction improper | Commonwealth: § 18.2-251 allows conviction when defendant fails to satisfy conditions; court may consider alternatives | Court: no willfulness requirement; court considered alternatives and imposed lenient, non-custodial sentence |
| Whether Starrs required dismissal of charges | Nunez: Starrs and related decisions authorize dismissal here | Commonwealth: court had discretion under § 18.2-251 to enter conviction when conditions unmet | Court: trial court correctly exercised § 18.2-251 discretion; decline to dismiss was proper |
Key Cases Cited
- Bilokur v. Commonwealth, 221 Va. 467 (right to be present at felony trial is part of common law)
- Palmer v. Commonwealth, 143 Va. 592 ("during the trial" defined to include every stage from arraignment to sentence)
- Rushen v. Spain, 464 U.S. 114 (right to be present is subject to harmless-error analysis)
- Chapman v. California, 386 U.S. 18 (constitutional error is harmless only if harmless beyond a reasonable doubt)
- Peyton v. Commonwealth, 268 Va. 503 (court must consider reasonable alternatives when defendant cannot satisfy program conditions through no fault of own)
- Starrs v. Commonwealth, 287 Va. 1 (discussed by trial court regarding dismissal authority)