Leroy DORSEY v. COMMONWEALTH of Virginia.
Record No. 1543-98-4.
Court of Appeals of Virginia, Alexandria.
April 4, 2000.
526 S.E.2d 787
THE COURT: Whatever time he served, he‘ll get credit for.
The court‘s July 31, 1998 sentencing order made no mention of a credit for time served.
Appellant initially contended the trial court‘s sentence was illegal because he had only four years left to serve on his original sentence after he served twelve months in jail. At oral argument, however, counsel for appellant represented to this Court that appellant had been given credit for the time served, and he requested that issue be abandoned. Accordingly, we will not address this issue further.
For the foregoing reasons, the judgment of the trial court is affirmed.
Affirmed.
H. Elizabeth Shaffer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Present: FITZPATRICK, C.J., BENTON, J., and DUFF, Senior Judge.
FITZPATRICK, Chief Judge.
Leroy Dorsey (appellant) was convicted in a jury trial of robbery, in violation of
I. Background
On August 7, 1997, appellant was arrested for robbing Danny Neil and later released by a magistrate on $10,000 bail, which, on August 11, 1997, was reduced to $3,000. Only one robbery charge was certified to the grand jury and appellant‘s bail was continued. On September 15, the grand jury, indicted appellant on the robbery charge and returned a direct
On October 10, 1997, the Commonwealth filed a motion to join the trials of appellant and his codefendant, Alfred Dearing (Dearing). At the joinder hearing on October 23, 1997, the Commonwealth presented evidence that appellant had participated with Dearing in two armed robberies on or about August 7, 1997, including the one with which appellant was charged. According to Detective Paul Larson, appellant “came from Maryland to Virginia to commit a robbery with his cousin.” Larson testified as follows:
A. ... He told us that earlier before the robbery in Arlington that they had done another robbery or had another incident. I couldn‘t identify exactly where. But through a report in Alexandria, an earlier robbery happened in Alexandria with the same circumstances.
Q. And with respect to the robbery that occurred in Arlington, what did the defendant Mr. Dorsey tell you what [sic] happened in that robbery?
A. He said that they had driven up next to the victim who was walking down Kenmore Street, the 1900 block of Kenmore Street, where Mr. Dearing pointed the gun at the victim and demanded money.
The victim didn‘t have any, so they ended up taking a gold chain from around the victim‘s neck and then leaving the scene.
* * * * * *
Q. At the time that the Arlington robbery occurred, did Mr. Dorsey tell you where he was in the car?
A. Yes. He said he was the driver of the car.
After argument by both parties, the trial court granted the Commonwealth‘s request for a joint trial. Additionally, the trial court, sua sponte, revoked appellant‘s bail, explaining:
I think [appellant and Dearing] are a danger to this community. And I am presuming them to be innocent. The jury can find them innocent or not guilty. But on the evidence
that I heard, riding around and pointing a gun, they are a danger. More than once in fact.
(Emphasis added). The following week, appellant filed a “Notice and Motion to Re-Admit Defendant to Bail” and requested a hearing on the motion. At the October 27, 1997 bail hearing, the Commonwealth noted that appellant had not been arraigned on the firearm charge for which he had been directly indicted. The Commonwealth asked that no bail be set for that charge. The trial court agreed, denied the motion for bail on the firearm charge, and denied the motion to re-admit appellant to bail on the robbery charge, stating:
Counsel, I don‘t have any problem with either of the defendant‘s [sic] appearance in court. They‘re here when they‘re supposed to be.
My problem is the danger they represent to the community. And I have ample evidence brought to my attention as a result of the [joinder] hearing that they are a danger.
Now, if able counsel, and I have no doubt that they can certainly try and may be successful, can convince a jury that they didn‘t do it, that‘s fine. But that‘s for [defense counsel] to deal with the jury.
But insofar as I‘m concerned, my responsibility, in part, is to decide whether or not these two individuals represent a clear, present danger to this community. And I say they do.
Now, if the jury says they‘re not guilty, fine. But until that happens, they‘re not going to be riding around out on the street, pull up to people and pulling guns and robbing. No way.
(Emphasis added).
On January 15, 1998, approximately two and one-half months after the bond hearing, appellant filed a motion to recuse the trial judge, arguing that “impartiality in this case could be called into question, given [the trial court‘s] statement that ... [appellant] was a danger to the community.” The trial court denied the motion to recuse, stating:
[The motion denying bail] was made because in this Court‘s opinion, these two individuals represented a danger to the community. If they‘re acquitted, I apologize. But I‘m not going to run the risk that [the defendants are] going to go out and hurt somebody pending the trial. And that‘s that.
At the January 15, 1998 motions hearing, appellant also filed a “Plea of Former Jeopardy,” arguing that revocation of his bail violated due process and that trial on these charges violated the double jeopardy prohibition. The trial court denied appellant‘s double jeopardy challenge.
Appellant appealed neither the denial of bail on the firearm charge nor the revocation of his bail on the robbery charge. Appellant was tried by jury and convicted of robbery and the use of a firearm in the commission of the robbery.
II. Double Jeopardy
Appellant contends he was subjected to multiple punishments in violation of the Double Jeopardy Clause of the Fifth Amendment. He argues that the revocation of his bail constituted “punishment” and, thus, his subsequent trial on the substantive charges was constitutionally impermissible. We disagree.
The Fifth Amendment to the United States Constitution states that no “person [shall] be subject for the same offence to be twice put in jeopardy of life or limb.”
In Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), the United States Supreme Court explained that “the Double Jeopardy Clause does not prohibit the imposition of any additional sanction that could, in common parlance, be described as punishment.” Id. at 98-99, 118 S.Ct. at 493 (internal quotations and citations omitted). “The Clause protects only against the imposition of multiple criminal punishments for the same offense, and then only when such occurs in successive proceedings.” Id. at 99, 118 S.Ct. at 493 (citations omitted).
Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction. A court must first ask whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other. Even in those cases where the legislature has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect, as to transfor[m] what was clearly intended as a civil remedy into a criminal penalty.
Id. (internal quotations and citations omitted). See United States v. Ward, 448 U.S. 242, 248-49, 100 S.Ct. 2636, 2641-42, 65 L.Ed.2d 742 (1980); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-68, 9 L.Ed.2d 644 (1963); see also Ingram v. Commonwealth, 29 Va.App. 759, 763-64, 514 S.E.2d 792, 794-95 (1999).
The Court in Hudson outlined the following “useful guideposts” in determining whether a punishment is criminal:
(1) [w]hether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment-retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to
Hudson, 522 U.S. at 99-100, 118 S.Ct. at 493 (quoting Kennedy, 372 U.S. at 168-69, 83 S.Ct. at 567-68) (internal quotations omitted). As the Court emphasized, however, “these factors must be considered in relation to the statute on its face, and only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” Id. at 100, 118 S.Ct. at 493 (internal quotations and citations omitted).
In the instant case, appellant contends that under the tests enunciated in Kennedy and Hudson the revocation of his bail served as punishment for the crimes charged, as opposed to any regulatory function of the Commonwealth. He argues that “[i]mprisonment involves an affirmative restraint and deprivation of those fundamental rights which ha[ve] been traditionally considered as punishment.” Because the trial court was not justified in revoking his bail, appellant concludes, the revocation was an impermissible punishment in violation of the Double Jeopardy Clause.
The trial court‘s revocation of his bail was not an adjudication of guilt on the offenses charged in the indictments, but rather was a finding of probable cause to believe that appellant‘s freedom posed a threat to the community. More importantly, this pretrial detention did not constitute “punishment.” See United States v. Salerno, 481 U.S. 739, 746-48, 107 S.Ct. 2095, 2101-02, 95 L.Ed.2d 697 (1987); Schall v. Martin, 467 U.S. 253, 268-74, 104 S.Ct. 2403, 2412-15, 81 L.Ed.2d 207 (1984); Bell v. Wolfish, 441 U.S. 520, 535-37, 99 S.Ct. 1861, 1872-73, 60 L.Ed.2d 447 (1979). For example, in Salerno the United States Supreme Court held that pretrial detention, based upon evidence that the accused presents a threat of danger to the public, “falls on the regulatory side of the dichotomy.” 481 U.S. at 747, 107 S.Ct. at 2101. The Court wrote:
As an initial matter, the mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punishment.... Congress did not formulate the pretrial detention provisions as punishment for dangerous individuals. Congress instead perceived pretrial detention as a potential solution to a pressing societal problem. There is no doubt that preventing danger to the community is a legitimate regulatory goal.
Id. at 746-47, 107 S.Ct. at 2101 (emphasis added). See also United States v. Grisanti, 4 F.3d 173, 175 (2d Cir. 1993) (holding that since a bail revocation hearing was not “‘essentially criminal,‘” and pretrial detention did not constitute punishment, the defendant was not twice put in jeopardy).
Our conclusion that revocation of appellant‘s bail was not punitive is buttressed by an analysis of
Appellant‘s reliance on Bitter v. United States, 389 U.S. 15, 88 S.Ct. 6, 19 L.Ed.2d 15 (1967) (per curiam), is also misplaced. In Bitter, the Supreme Court held that the trial court‘s revocation of bail, made without a hearing or any explanation of reasons by the trial judge, had the “appearance and effect of punishment.” Id. at 16, 88 S.Ct. at 7. In Bitter, at the conclusion of the government‘s case, the defendant
On appeal, the United States Supreme Court reversed the defendant‘s convictions because the revocation of his bail “was unjustified” and “it constituted an unwarranted burden upon defendant and his counsel in the conduct of the case.” Id. at 16, 88 S.Ct. at 7.
The record in this case shows only a single, brief incident of tardiness, resulting in commitment of the defendant to custody for the balance of the trial in a jail 40 miles distant from the courtroom. In these circumstances, the trial judge‘s order of commitment, made without hearing or statement of reasons, had the appearance and effect of punishment rather than of an order designed solely to facilitate the trial. Punishment may not be so inflicted.
Id. (emphasis added).
In the instant case, the trial court, after hearing evidence, clearly explained its reason for revoking appellant‘s bail, i.e., the danger he and his codefendant posed to the community. One week after revocation of his bail, appellant was again afforded the opportunity to present evidence on his behalf and the trial court again found that the codefendants “represent a clear, present danger to this community.... [T]hey‘re not going to be riding around out on the street, pull up to people and pulling guns and robbing.”1
III. Due Process
Appellant next contends the revocation of his bail violated his substantive due process rights under the Fourteenth Amendment because the revocation was not “rationally related to a legitimate nonpunitive government purpose” and, in the alternative, because the revocation was “excessive in relation to that purpose.” He also maintains that “[d]epriving a person of physical liberty without procedural due process and without according him the rights guaranteed by the constitution, including notice, confrontation, and trial by jury, is a sanction which is punitive in nature.” We disagree.
The due process clauses of the Federal and Virginia Constitutions provide that no person shall be deprived of life, liberty, or property without due process of law. See
Applying these principles to the instant case, we hold that the revocation of appellant‘s bail violated neither his substantive nor procedural due process rights.
Moreover, appellant‘s pretrial detention did not violate his procedural due process rights. “Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property,” Carey v. Piphus, 435 U.S. 247, 259, 98 S.Ct. 1042, 1050, 55 L.Ed.2d 252 (1978), and the rules “guarantee[] that a person shall have reasonable notice and opportunity to be heard before any binding order can be made affecting the person‘s rights to liberty or property.” McManama v. Plunk, 250 Va. 27, 34, 458 S.E.2d 759, 763 (1995) (emphasis added). “Due process is a flexible concept, and the procedural protections required in a certain instance vary according to the circumstances of the particular case.” Jackson v. W., 14 Va.App. 391, 411, 419 S.E.2d 385, 397 (1992).
In the instant case, when the trial court made its initial, sua sponte ruling to revoke appellant‘s bail, appellant did not object. Moreover, although appellant was afforded an opportunity to present evidence on his behalf at the hearing to reinstate bail, he chose not to present any evidence at that time. The Commonwealth urged the trial court to deny the motion to re-admit appellant to bail on the robbery charge and asked the trial court to deny bail on the firearm charge. Appellant relied upon his oral argument offered to the trial court. Most importantly, appellant had the opportunity and statutory right to appeal the trial court‘s decision but chose not to do so. See
Finally, appellant contends the trial court erred by failing to defer to previous determinations admitting him to bail. Specifically, he argues the initial determinations by other “judicial officers” to set bail were findings that he did not present a danger to society. According to appellant, these findings “are entitled to the highest degree of deference” and the decisions admitting him to bail are “binding on other judges of the same jurisdiction under the law of the case doctrine.” Applying this rationale, appellant concludes the trial court lacked the authority to order the revocation of his bail. We disagree.
The Supreme Court of Virginia has held that bail can be revoked upon a finding of probable cause to believe that, among other things, the accused is a danger to society. See Heacock, 228 Va. at 240, 321 S.E.2d at 648. “If an application for bail, i.e., release from custody, can be denied upon a finding of probable cause to believe that the accused will not appear or will constitute an unreasonable danger while at liberty, bail can be revoked upon such a finding.” Id. (emphasis added). Additionally, in considering terms of bail, the Code mandates that the trial court consider the nature and circumstances of the crime, the weight of the evidence, whether a firearm was used, and any other relevant circumstances. See
Although appellant‘s bail was initially set at $10,000, and was later reduced to $3,000, we cannot infer from the record before us that another “judicial officer,” knowing all the facts, found that appellant was not dangerous. The trial judge had the authority and duty to revoke appellant‘s bail if evidence presented to him established that appellant posed a danger to the community. Based upon such a finding, the trial court did so.4
It was not until after the trial court learned that a firearm had been used in the robbery, and after the grand jury directly indicted appellant for the use of a firearm in the commission of that robbery, did the trial court revoke appellant‘s bail on the robbery charge and deny bail on the firearm charge. Appellant had a clear remedy, a statutory right, to contest the revocation of his bail as provided by
In the instant case, the trial court revoked appellant‘s bail at the joinder hearing on October 23, 1997, and denied appellant‘s motion to re-admit bail following a hearing on October 27, 1997. Although appellant noted an exception to the trial court‘s order, he did not appeal that decision pursuant to
The trial court‘s decision sua sponte to revoke appellant‘s bail does not mandate a different conclusion. Ordinarily, the Commonwealth initiates the revocation under
In sum, we conclude that the trial judge had the authority to revoke appellant‘s bail upon his finding, based on evidence heard ore tenus, that appellant posed an unreasonable threat to the community. The trial judge did not abuse his discretion. See Fisher v. Commonwealth, 236 Va. 403, 411, 374 S.E.2d 46, 51 (1988).
For the foregoing reasons, appellant‘s convictions are affirmed.
Affirmed.
BENTON, Judge, concurring.
I concur in Parts I, II, and III of the majority opinion and in the judgment affirming the convictions. I do not join in Part IV.
In Virginia, the procedures for determining whether to grant or revoke bail are statutory. See
Although the bail statutes have been substantially revised after the proceeding in this case, the following statute was applicable at that time:
A. Although a party has been admitted to bail, if the amount of any bond is subsequently deemed insufficient, or the security taken inadequate, the attorney for the Commonwealth of the county or city in which the accused or juvenile taken into custody pursuant to
§ 16.1-246 is held for trial may, on reasonable notice to the accused or juvenileand to any surety on the bond of such accused or juvenile, move the court, or the appropriate judicial officer to increase the amount of such bond. The court may, in accordance with subsection B, grant such motion and may require new or additional sureties therefor, or both. Any surety in a bond for the appearance of such party may take from his principal collateral or other security to indemnify such surety against liability. The failure to notify the surety will not prohibit the court from proceeding with the bond hearing. B. Subsequent to an initial appearance before any judicial officer where the conditions of bail have been determined, no accused or juvenile, after having been released on a bond, shall be subject to a motion to increase such bond unless (i) the accused or juvenile has violated a term or condition of his release, or is convicted of or arrested for a felony or misdemeanor, or (ii) the attorney for the Commonwealth presents evidence that incorrect or incomplete information regarding the accused‘s or juvenile‘s family ties, employment, financial resources, length of residence in the community, record of convictions, record of appearance at court proceedings or flight to avoid prosecution or failure to appear at court proceedings, or other information relevant to the bond determination was relied upon by the court or magistrate establishing initial bond.
Leroy Dorsey and an accomplice were arrested August 7, 1997, and charged with a robbery in Arlington and a robbery in Alexandria. After Dorsey gave a statement to the police, a magistrate in Arlington admitted him to bail. Following a hearing four days later, a general district court judge reduced the amount of the bail. Later, at the preliminary hearing, the general district court judge certified the robbery charge to the grand jury and continued Dorsey‘s bail. The prosecutors sought and received from the grand jury indictments charging Dorsey with robbery and use of a firearm in the commission of
The prosecutor filed a motion to join the trials of Dorsey and the accomplice. At a hearing on that motion, the trial judge, who was not the same circuit court judge that earlier continued Dorsey‘s bail, granted the Commonwealth‘s joinder motion. After setting the joined cases for a jury trial, the trial judge sua sponte revoked Dorsey‘s bail. The prosecutor had not requested this revocation.
Although I agree with the majority opinion that Dorsey‘s counsel did not object when the trial judge sua sponte revoked Dorsey‘s bail and that Dorsey failed to appeal that action pursuant to
The statute places upon the prosecutor the burden to initiate actions to revoke bail upon notice to the accused. In this case, however, the trial judge acted on his own initiative. To sanction this deviation from the statutory procedure invites arbitrary and capricious results because any judge who is so inclined can now revoke bail at any hearing based solely on his or her subjective belief that another judge, who had previously admitted an accused to bail, acted wrongly. “[W]e must assume that ‘the legislature chose, with care, the words it used when it enacted the relevant statute, and we are bound by those words as we interpret the statute.‘” City of Virginia Beach v. ESG Enters., Inc., 243 Va. 149, 153, 413 S.E.2d 642, 644 (1992) (citation omitted).6
The record contains no evidence to support the assertion that the joinder hearing was the first occasion at which any “judicial officer” heard the facts concerning the robbery. The record does establish, however, that at 2:15 a.m., immediately after his arrest at 1:40 a.m., Dorsey gave a complete statement to the police concerning the armed robberies. Thus, it is likely that both the magistrate, who initially set bail at 5:12 a.m. on August 7, and the judge, who found probable cause on September 10, 1997, and re-admitted Dorsey to bail, heard the report of the police. In any event, before he sua sponte revoked Dorsey‘s bail, the trial judge made no inquiry concerning the basis upon which those other judges admitted Dorsey to bail. He had no knowledge whether the magistrate and the two judges who admitted Dorsey to bail were aware of the particular circumstances of the offenses. He merely made a de novo decision to revoke Dorsey‘s bail. That ruling, made without notice or hearing, was arbitrary and “had the appearance ... of punishment.” Bitter v. United States, 389 U.S. 15, 17, 88 S.Ct. 6, 7, 19 L.Ed.2d 15 (1967).
Once a bail decision has been made, neither the accused nor the prosecutor is statutorily entitled to have the issue of bail revisited de novo whenever another judge hears a motion or is assigned to determine some aspect of the case. See
Without sanctioning the trial judge‘s actions, I would hold that Dorsey neither objected nor appealed when the trial judge sua sponte revoked his bail. See Rule 5A:18;
For these reasons, I would affirm the convictions.
Notes
If the person is admitted to bail, the terms thereof shall be such as, in the judgment of any official granting or reconsidering the same, will be reasonably fixed to assure the appearance of the accused and to assure his good behavior pending trial. The judicial officer shall take into account (i) the nature and circumstances of the offense; (ii) whether a firearm is alleged to have been used in the offense; (iii) the weight of the evidence; (iv) the financial resources of the accused or juvenile and his ability to pay bond; (v) the character of the accused or juvenile including his family ties, employment or involvement in education; (vi) his length of residence in the community; (vii) his record of convictions; (viii) his appearance at court proceedings or flight to avoid prosecution or failure to appear at court proceedings; (ix) whether the person is likely to obstruct or attempt to obstruct
justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate a prospective witness, juror, or victim; and (x) any other information available which the court considers relevant to the determination of whether the accused or juvenile is unlikely to appear for court proceedings.The current statute explicitly addresses revocation and would bar this type of revocation. In pertinent part, it provides as follows:
Subsequent to an initial appearance before any judicial officer where the conditions of bail have been determined, no person, after having been released on a bond, shall be subject to a motion to ... revoke bail unless (i) the person has violated a term or condition of his release, or is convicted of or arrested for a felony or misdemeanor, or (ii) the attorney for the Commonwealth presents evidence that incorrect or incomplete information ... was relied upon by the court or magistrate establishing initial bond.