Branch v. Commonwealth
| Decision Date | 16 September 2014 |
| Docket Number | Record No. 0205-13-2 |
| Court | Virginia Court of Appeals |
| Parties | CORNELL McDANIEL BRANCH v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Judges Humphreys, Alston and Decker
Argued by teleconference
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Joan J. Burroughs (Devika E. Davis; Devika E. Davis, P.C., on briefs), for appellant.
Steven A. Witmer, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Cornell McDaniel Branch (the appellant) contends that the trial court erred by finding that it lacked authority to take his concealed weapon charge under advisement once he entered a plea of nolo contendere but before the court found him guilty of the offense. The appellant suggests that Starrs v. Commonwealth, 287 Va. 1, 752 S.E.2d 812 (2014), controls and that the trial court was authorized to take the case under advisement and defer its findings as well as any punishment. For the reasons that follow, the convictions are affirmed.1
On December 22, 2011, police conducted a traffic stop of a vehicle driven by the appellant. As a result of the stop, the appellant was charged with possession of a concealed weapon, firstoffense, in violation of Code § 18.2-308, and defective equipment (an inoperable automobile headlight), in violation of Code §§ 46.2-1003 and -1011. He was convicted of both offenses in general district court and appealed the decisions to the circuit court. At the appellant's trial de novo, his counsel informed the court that the appellant was prepared to plead nolo contendere, or "no contest," to both charges. Counsel explained that she would stipulate to the facts and would proceed to sentencing with a motion for the court to take the case under advisement.
The trial court conducted its inquiry concerning the appellant's pleas. The appellant pled no contest to the two offenses. The court engaged in a colloquy and found that the pleas were entered in a manner consistent with the requirements of the law. The judge "accept[ed] the pleas[,] subject to the factual basis being shown by the Commonwealth."
The Commonwealth proffered the facts for the record, and the appellant concurred with the prosecutor's summary. The appellant's counsel asked to be heard on the disposition of the case before the court made its findings of guilt. She presented her argument, which summarized the circumstances surrounding the appellant's case, emphasized his background, and highlighted his efforts to overcome adversity. Counsel suggested that the unique situation warranted a deferred disposition. Further, appellant's counsel asked the court to take the case under advisement and ultimately dismiss the charges after the appellant completed whatever terms the court deemed appropriate. The Commonwealth objected to the court's taking the case under advisement due to the nature of the concealed weapon offense. The judge advised counsel that he was going to "think about it" and continued the case.
At the next hearing, the judge stated that he "took a look at the law" and, although he found the appellant's argument "really compelling," he did not believe that he had the authority to defer the disposition of the case. The court discussed the state of the law with the appellant's counsel, who also reminded the court that it had withheld the actual findings of guilt and continued the case.She suggested that based upon the law at that time, deferring the case was still an option for the court. After further discussion, the prosecutor made clear that the Commonwealth objected to the court's taking the case under advisement, not because the court did not have the power to do so but because the facts of the case, specifically the firearm offense, warranted a conviction. The court then continued the case for a second time.
The court held a third hearing on sentencing, at which it indicated ongoing concern over "whether or not [it] ha[d] authority to [take the case under advisement] after [the appellant] ha[d] entered a plea of no contest." Appellant's counsel, referencing the applicable law, continued to urge that the court take the case under advisement and ultimately dismiss the firearm charge. The Commonwealth, represented by a different prosecutor, did not provide any additional insight. After the discussion, the court ruled, Appellant's counsel neither asked for clarification of the ruling nor objected to it. The court convicted the appellant, sentenced him to ten days in jail on each offense, with all time suspended, and fined him $100, which it also suspended.
The appellant's argument is based on the assumption that the trial court found him guilty after determining that it lacked the authority to take the case under advisement and defer disposition. The alleged error rests on the theory that the trial court incorrectly ruled that it could not legally take the concealed weapon charge under advisement.
The party alleging reversible error has the burden to show through the record that the alleged error occurred and that he preserved the error for appeal. See Rule 5A:8; Bullock v. Commonwealth, 48 Va. App. 359, 366, 631 S.E.2d 334, 337 (2006), overruled in part on other grounds, Brown v. Commonwealth, 284 Va. 538, 545, 733 S.E.2d 638, 641-42 (2012); Johnson v. Commonwealth, 12 Va. App. 391, 396, 404 S.E.2d 384, 386 (1991). The judgment below ispresumed correct absent such a showing. See Smith v. Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6 (1993); see also Harris v. Commonwealth, 133 Va. 700, 705, 112 S.E. 753, 754 (1922). Additionally, on appeal, absent clear evidence to the contrary, a trial court is presumed to have known the law and properly applied it. See Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977); Oliver v. Commonwealth, 35 Va. App. 286, 297, 544 S.E.2d 870, 875 (2001). Further, while a trial court's legal conclusions are reviewed de novo, this Court reviews sentencing decisions by a trial court under the abuse of discretion standard. See Scott v. Commonwealth, 58 Va. App. 35, 46-47, 707 S.E.2d 17, 23 (2011) (sentencing); Ngomondjami v. Commonwealth, 54 Va. App. 310, 319, 678 S.E.2d 281, 286 (2009) ().
The judge was faced with an area of the law that was far from clear at the time that the appellant made the motion for the court to take the case under advisement and defer disposition of the firearm offense. Consequently, the judge, exercising an abundance of caution, continued the case twice in order to review the law and ensure that he was aware of what he could and could not do before he ruled. Throughout, he expressed concerns regarding his authority to defer disposition.
The prosecutor made clear that her objection to the court's taking the case under advisement was not based on procedure or any legal impediment of the court to act in the manner requested but, instead, was based on the nature of the offense. The prosecutor told the court, At the second hearing, after some discussion about the posture of the case and the state of the law, the prosecutor reiterated the Commonwealth's position that it was "asking the Court to enter the conviction . . . just purely based on the facts of the case." This statement was followed by a clarifying question from the appellant's counsel. Sheasked, "[A]nd not based on whether or not you object to the Court's inherent authority to take that action?" The prosecutor responded, "Exactly." The record shows that the Commonwealth emphasized throughout the proceedings that its objection was substantive, not procedural, and that it believed that the offense was not an appropriate one for the court to take under advisement. The Commonwealth asked the court to find the appellant guilty and sentence him.
At the final hearing, the court again recognized the legal issue concerning its authority to take the case under advisement and engaged in yet another discussion regarding the scope of that authority. After hearing from the appellant's counsel regarding Hernandez v. Commonwealth, 281 Va. 222, 707 S.E.2d 273 (2011), and her assessment that the law permitted the court to take the case under advisement, the court asked the Commonwealth, represented by a different prosecutor, if he had anything to say about the case.2 He stated that the Commonwealth would rely on the court's decision. The judge concluded,
The record supports the conclusion that the trial court chose not to take the case under advisement, ruled on the merits, found the appellant guilty of both offenses, and sentenced him. See Harris v. Commonwealth, 63 Va. App. 525, 531, 759 S.E.2d 29, 32 (2014). While it is clear that the appellant asked the court to take the case under advisement and the court was concerned regarding whether it had the authority to do so, it is equally clear that the Commonwealth objected to the court's taking the case under advisement due to the nature of the firearm offense and asked for a ruling on the merits. Had the trial court chosen to base its ruling on the conclusion that it did nothave the legal authority to take the case under advisement, it could have done so. It did not. Instead, it opted not to take the case under advisement.
When the judge ultimately stated that he was not going to take the case under advisement, the appellant's counsel stood silent. Consequently, the appellant cannot now complain regarding any lack of clarity in the trial court's...
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