Smith v. Commonwealth
59 Va. App. 710
| Va. Ct. App. | 2012Background
- Smith was convicted of petit larceny in King George County Circuit Court on December 13, 2007, and sentenced to 12 months with 12 suspended for two years conditioned on good behavior and observance of laws.
- On November 15, 2010, the Commonwealth requested an order to show cause why the suspended sentence should not be revoked based on alleged new convictions; an order to show cause was issued on November 19, 2010.
- Smith appeared January 13, 2011, pled no contest to violating the terms of his suspended sentence, and the circuit court found him guilty and revoked 12 months of suspension while re-suspending six months on February 4, 2011.
- The record shows Chesterfield County convictions (three offenses) alleged as evidence, and Henrico County convictions (two petit larceny counts) with dates that pre-date the suspended period expiration, raising questions about the basis for the violation finding.
- The statement of facts (prepared by Smith’s counsel) contained inaccuracies (plea listed as not guilty) and did not reflect all relied-upon exhibits; the signed statement was court-signed by a judge who did not preside at the revocation.
- The Virginia Court of Appeals ultimately relied on the no contest plea to resolve the appeal, holding that non-jurisdictional issues were waived and that the sentence, within statutory limits for a Class 1 misdemeanor, was not error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to impose six months | Smith argues the court lacked authority to impose after suspension expired | Smith pleads no contest and waives non-jurisdictional challenges | Waived; affirmed on waiver grounds |
| Effect of no contest plea on appellate review | Non-jurisdictional errors should be reviewable | No contest plea prevents review of non-jurisdictional issues | Waived; issues not preserved except jurisdictional |
| Judicial statement of facts weight | Statement of facts conflicts with record and misstates proceedings | Statement of facts is part of the record and partially reliable | Not controlling; remedy via waiver and record evidence; no remand needed |
| Ends of justice relief | Ends of justice should excuse preservation failures | Ends of justice not applicable without clear miscarriage | Declined |
| Sentence within statutory range | Six months beyond the suspended time may exceed statutory limits | Sentence within the statutory range for Class 1 misdemeanor | Affirmed; within statutory range |
Key Cases Cited
- Proctor v. Town of Colonial Beach, 15 Va.App. 608 (1993) (rules for when written statement of facts is authenticated and signed)
- Morrison v. Bestler, 239 Va. 166 (1990) (waiver of issues under Rule 5A:18)
- New Bay Shore Corp. v. Lewis, 193 Va. 400 (1952) (presumption of transcript correctness is rebuttable)
- Anderson v. Commonwealth, 13 Va.App. 506 (1992) (transcripts and statements of facts used for appeal)
- Kelso v. Commonwealth, 57 Va.App. 30 (2010) (ends-of-justice exception not applicable absent miscarriage)
- Mohamed v. Commonwealth, 56 Va.App. 95 (2010) (distinction between subject-matter jurisdiction and other jurisdictional defects)
- Porter v. Commonwealth, 276 Va. 203 (2008) (jurisdictional defects must be preserved)
- Clauson v. Commonwealth, 29 Va.App. 282 (1999) (no contest plea waives defenses except jurisdictional)
- Peyton v. King, 210 Va. 194 (1969) (why plea affects appeal rights for punishment)
- Jones v. Commonwealth, 42 Va.App. 142 (2004) (no contest plea implies confession for purposes of judgment)