Commonwealth v. Thomas, Case No. MI-2018-1248

• Decision Date: 20 September 2019
• Docket Number: Case No. MI-2018-1248
• Court: Circuit Court of Virginia
• Parties: RE: Commonwealth of Virginia v. Nathan Elmore Thomas

RE: Commonwealth of Virginia
v.
Nathan Elmore Thomas

Case No. MI-2018-1248

NINETEENTH JUDICIAL CIRCUIT OF VIRGINIA COUNTY OF FAIRFAX CITY OF FAIRFAX

September 20, 2019

BRUCE D. WHITE. CHIEF JUDGE RANDY I. BELLOWS ROBERT J. SMITH BRETT A. KASSABIAN MICHAEL F. DEVINE JOHN M. TRAN GRACE BURKE CARROLL DANIEL E. ORTIZ PENNEY S. AZCARATE STEPHEN C. SHANNON THOMAS P. MANN RICHARD E. GARDINER DAVID BERNHARD DAVID A. OBLON DONTAÈ L. BUGG JUDGES

THOMAS A. FORTKORT J. HOWE BROWN F. BRUCE BACH M. LANGHORNE KEITH ARTHUR B. VIEREGG KATHLEEN H. MACKAY ROBERT W. WOOLDRIDGE, JR. MICHAEL P. McWEENY GAYLORD L. FINCH, JR. STANLEY P. KLEIN LESLIE M. ALDEN MARCUS D. WILLIAMS JONATHAN C. THACHER CHARLES J. MAXFIELD DENNIS J. SMITH LORRAINE NORDLUND DAVID S. SCHELL JAN L. BRODIE RETIRED JUDGES

LETTER OPINION

Mr. Alan J. Cilman
Attorney at Law
10474 Armstrong Avenue, Suite 202
Fairfax, VA 22030
Counsel for Defendant

Ms. Bridget A. Corridon
Assistant Commonwealth's Attorney
Office of the Fairfax Commonwealth's Attorney
4110 Chain Bridge Road
Fairfax, VA 22030
Counsel for the Prosecution

Dear Counsel:

This case came before the Court for trial of Nathan Elmore Thomas ("Defendant") on a criminal charge of possession of marijuana, wherein Defendant challenges the

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reliability of the drug field test kit employed by the arresting police officer, and posits that no incarceration may be imposed on Defendant in this de novo prosecution irrespective of any prior record, as the Fairfax General District Court ("GDC") recorded "jail waived" on the summons of conviction. This Court holds that in an appeal from a criminal conviction occurring in the GDC, wherein the lower court judge noted jail was waived on behalf of the Commonwealth of Virginia, judicial estoppel bars the imposition of incarceration on the Defendant upon trial de novo in the Circuit Court. This Court further holds that inasmuch as the GDC judge failed to date the summons of conviction, while such order was final, this Court cannot presume the undated order was signed before the notice of appeal was filed. This Court is unable to infer from the record whether the case is properly before the Court as a matter of jurisdiction. The Court is presented with two equally viable inferential alternatives, namely, that the Court can proceed to pronounce its verdict or may instead not do so for want of jurisdiction. Because trial has commenced and jeopardy may have attached, the Court is also prevented from dismissing the appeal without first finding it lacks jurisdiction. As the evidence of jurisdiction is in equipoise, the Court has no choice but to dismiss the marijuana charge with prejudice, for determination of jurisdiction is in legal stasis.

BACKGROUND

Defendant was charged with Possession of Marijuana by summons and directed to appear before the GDC on June 11, 2018. On that date, a judge of the GDC noted a continuance to August 13, 2018, with the notation "TGA", which this Court infers to mean "to get attorney." There is a further notation on the summons: "jail waived." Next to the

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charge "Possession of Marijuana," the judge, in the same distinctive color of ink, noted but then crossed off the words "4th" and then "2nd." Thus, it appears that all these notations were made on June 13, 2019, wherein the case was continued for trial to August 13, 2018. The summons further reflects a conviction for a first offense,¹ including a fine of $500 and a 6-month driver's license suspension, but is undated by the trial judge, all done in ink different from that of the June 13 notations.

On August 13, 2018, Defendant pled "not guilty" in GDC, proceeded to trial and appealed his case. His notice of appeal, though dated August 13, 2018, was not transmitted to the Clerk of the Fairfax Circuit Court until August 28, 2019. On December 3, 2018, the Commonwealth's Attorney filed a Notice of Intention to Use Prior Record pursuant to Virginia Code § 19.2-195. On June 21, 2019, the Commonwealth filed two certificates of analysis from the Department of Forensic Science pertaining to evidence collected from Defendant on April 27, 2018, the date of offense, purporting to show the presence of marijuana in the samples collected. The reports were dated October 22, 2018, and January 29, 2019. For reasons unclear from the record, the Assistant Commonwealth's Attorney prosecuting the instant case did not introduce these reports into evidence at trial.

The Defendant appeared before this Court on August 7, 2019, for trial de novo by jury on his charge. Upon consideration of preliminary motions, the parties opted to waive jury and instead try the case to the undersigned judge. The Commonwealth presented

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evidence through the arresting police officer, which consisted in part of the Defendant being stopped for a routine traffic infraction and apologizing to the officer when the purported marijuana was located, which substance the officer collected and field-tested. The officer testified that based on his training and seven years of experience, the substance which he also photographed, was marijuana, and that further, his field test, which is specific for marijuana and hash oil, turned a color which additionally confirmed the leafy material was marijuana. Defendant presented an expert chemist as well as argument challenging the reliability of the field test. While the Assistant Commonwealth's Attorney conceded the test was specific for more substances than just marijuana, she averred the test corroborated the other evidence that the substance seized was marijuana, namely, the statements of Defendant and the police officer's testimony the green leafy substance was marijuana.

At the conclusion of presentation of evidence, the Court took this matter under advisement, affording the parties time to brief their respective positions.

ANALYSIS

I. The General District Court's waiver of a jail sentence on behalf of the Commonwealth of Virginia forecloses the imposition of incarceration upon trial de novo in the Circuit Court.

"[A] defendant who receives a suspended or probated sentence to imprisonment has a constitutional right to counsel." Alabama v. Shelton, 535 U.S. 654, 674, 122 S. Ct. 1764, 1776 (2002) (emphasis in original; internal citation omitted). With respect to whether an indigent defendant may be denied appointed counsel, the Virginia Code specifically states,

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if, prior to the commencement of the trial, the court states in writing, either upon the request of the attorney for the Commonwealth or, in the absence of the attorney for the Commonwealth, upon the court's own motion, that a sentence of incarceration will not be imposed if the defendant is convicted, the court may try the case without appointing counsel, and in such event no sentence of incarceration shall be imposed.

Va. Code § 19.2-160 (emphasis added). In the instant case, the Commonwealth's Attorney was voluntarily absent from the trial in the GDC and therefore it was that court which waived jail time upon its own initiative.² Central to interpretation of whether the

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statutory waiver continues on appeal de novo is to first discern the meaning of "in such event." "[C]ourts apply the plain language of a statute unless the terms are ambiguous . . . . [I]f the language is plain, certain and unambiguous, so that no doubt arises from its own terms as to its meaning, then there is no room for interpretation." Lynchburg Div. of Soc. Servs. v. Cook, 276 Va. 465, 480, 666 S.E.2d 361, 368 (2008) (internal quotation marks and citations omitted). Under a plain reading of the statute, "in such event" refers not to the trial itself but to the operative factual decision of the lower court that "states in writing, . . . that a sentence of incarceration will not be imposed if the defendant is convicted . . . ." Va. Code § 19.2-160. Irrespective of whether the waiver comes at the behest of the Commonwealth's Attorney or is product of the initiative of a court, the effect is the same: The Commonwealth of Virginia waives incarceration once the court so affirms in writing.

The General Assembly did not account in detail for what is to occur "in such event" of the waiver of jail time when a conviction is appealed de novo. The General Assembly may not have anticipated the Commonwealth of Virginia could potentially take inconsistent positions with respect to waiving jail time in the GDC from those on appeal in the Circuit Court. However, neither did the Legislature give license in Virginia Code § 19.2-160 for the government to take successive inconsistent positions as to whether the facts support a waiver of jail time.

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Where jail is waived in the GDC and sought in the Circuit Court, it is the prosecuting party, the Commonwealth of Virginia, that is being inconsistent. The prosecuting attorney, the Commonwealth's Attorney, was not present and therefore did not waive jail in the instant case in the GDC. The prosecutor's position in this Court is now, however, undertaken on behalf of the Commonwealth of Virginia, the prosecuting party, which was nominally present in the lower court.³

It has been a rule of long-standing that a court in exercise of discretion, such as for instance in waiving incarceration under Virginia Code § 19.2-160, "must not be...