Davis v. Commonwealth

• Decision Date: 08 October 2019
• Docket Number: Record No. 1193-18-2
• Citation: 70 Va.App. 722,833 S.E.2d 87
• Court: Virginia Court of Appeals
• Parties: Ryan Oneal DAVIS v. COMMONWEALTH of Virginia

70 Va.App. 722

833 S.E.2d 87

Ryan Oneal DAVIS

v.COMMONWEALTH of Virginia

Record No. 1193-18-2

Court of Appeals of Virginia, Richmond.

OCTOBER 8, 2019

Jessica V. Bailey (Jessica B. Mauger, Attorney at Law, on brief), for appellant.

Craig W. Stallard, Assistant Attorney General (Mark R. Herring, Attorney General; John I. Jones, IV, Assistant Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Petty and Huff

OPINION BY JUDGE GLEN A. HUFF

Ryan Oneal Davis ("appellant") appeals the revocation of the suspension of his sentences by the Circuit Court of Sussex County ("trial court"). In 1995, appellant was convicted of malicious wounding and robbery. The trial court sentenced him to consecutive terms of twenty years’ imprisonment on each charge, but suspended fourteen years on each charge. In 2006, appellant committed a murder. He was tried in 2008 and convicted, but that conviction was later overturned in a federal habeas corpus proceeding for ineffective assistance of counsel. See generally Davis v. Mathena, No. 2:12cv92, 2014 WL 1308694 (E. D. Va. Mar. 27, 2014). In 2017, appellant was retried and convicted again. In 2018, after hearing evidence regarding appellant’s conduct in the course of the murder and his conduct in prison since his original conviction, the trial court revoked the suspension of appellant’s sentences and imposed the entirety of the twenty-eight years’ imprisonment outstanding on appellant’s 1995 robbery and malicious wounding convictions. Appellant raises four assignments of error:

1. The trial court erred in denying appellant’s motion to recuse the trial judge when the judge’s impartiality could reasonably be questioned because he also presided over the murder trial where the conduct used to justify the revocation was heard.

2. The trial court erred in refusing to dismiss the revocation proceedings when the circumstances justified a presumption that the proceedings were the result of prosecutorial vindictiveness.

3. The trial court erred in denying appellant’s motion to dismiss the revocation related to the malicious wounding conviction because the revocation proceeding was instituted beyond the time constraints of Code § 19.2-306(B).

4. The trial court abused its discretion in revoking the entire suspended sentence because that resulted in an excessive sentence under the circumstances.

Appellant’s first and fourth assignments of error are not supported with sufficient argument and authorities and therefore are waived. Appellant’s second assignment of error fails because, even if the situation warranted a presumption of vindictiveness, a presumption of vindictiveness is rebuttable and appellant conceded the prosecutor was not actually vindictive. Appellant’s third assignment of error is without merit because the trial court reasonably interpreted its original sentencing orders as suspending the sentences in the case for the maximum period permitted or allowed by law—appellant’s life. Therefore, this Court affirms.

I. BACKGROUND

"This Court considers ‘the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below.’ " Hawkins v. Commonwealth, 64 Va. App. 650, 652, 770 S.E.2d 787 (2015) (quoting Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584 (2008) ). So viewed the evidence is as follows:

In 1995, appellant was convicted of malicious wounding and robbery. On October 4, 1995, in two separate sentencing orders arising from the same case, the trial court sentenced appellant to twenty years’ imprisonment on each of the two charges. Each sentencing order suspended fourteen years of each sentence "upon the condition that [appellant] keep the peace and be of good behavior for the maximum period required by law."

In 2006, appellant murdered Cherri Dowell. See generally Davis v. Commonwealth, No. 0615-17-2, 2018 WL 3430966 (Va. Ct. App. July 17, 2018). Appellant was initially convicted of the murder in 2008. In 2014, the United States District Court for the Eastern District of Virginia granted appellant’s petition for habeas corpus and ordered a new trial on the ground that appellant’s attorney had been ineffective for failing to object to appellant being shackled while in the presence of the jury. Davis v. Mathena, No. 2:12cv92, 2014 WL 1308694 (E. D. Va. Mar. 27, 2014).

In March of 2017, appellant was retried, by a jury, and again convicted of murder. Although he did not preside over appellant’s first murder trial, Circuit Court Judge Designate Robert G. O’Hara, Jr. presided over the retrial. Furthermore, although Judge O’Hara did not recall it, he had also presided over appellant’s initial trial and sentencing in 1995 for malicious wounding and robbery. Appellant filed his notice of appeal with the trial court in the murder case on April 13, 2017.¹ On April 7, 2017, however, before appellant appealed that case, the Commonwealth sent a letter to the trial court requesting the court initiate revocation proceedings based on the new conviction.

The Commonwealth filed a notice informing the court it intended to introduce evidence of appellant’s conduct surrounding the murder, including several other unadjudicated crimes appellant allegedly committed at the time. Appellant then moved to recuse Judge O’Hara because the Commonwealth intended to present some of the same evidence it had presented at appellant’s retrial over which Judge O’Hara had presided. Appellant argued that Judge O’Hara’s familiarity with the evidence allowed his impartiality to reasonably be questioned. The trial court denied the motion. Judge O’Hara noted that the jury, not he, had been the finder of fact in appellant’s murder trial. He stated:

The Court has on occasion recused itself, but it generally likes to follow a script that we often do when we impanel a jury and ask myself some of those same questions we ask jurors. And in doing that, I did not find indication either from my memory or from the record that suggests that I should do so here.

He continued by noting that it was hardly uncommon for a judge to see the same defendant multiple times and that he had rarely found it necessary to recuse himself for that reason.

Appellant also moved to dismiss the revocation proceedings because he claimed it was a vindictive prosecution intended to "stifle" his "right to appeal" his murder conviction. He argued it did not matter if the prosecutor actually intended to retaliate for or deter an appeal, the appearance of vindictiveness sufficed to warrant dismissal. The prosecutor argued she had given no thought to appellant’s appeal and only decided to seek revocation because of information revealed during the murder trial showing additional "bad behavior" on the part of appellant. Appellant then conceded that the prosecutor’s motive was not vindictive:

Judge, I would just reiterate, and I won’t belabor the point, but I would just reiterate I absolutely believe Ms. Ramsey, that that was not her intent, but the court in Blackledge [v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974),] said that it doesn’t matter what her intent is. What matters is the appearance of vindictiveness and the appearance that you’re attempting to chill a defendant’s right to an appeal, that you are attempting to dissuade them from an appeal for fear of getting more harsher [sic] or additional punishment as a result.

The trial court denied the motion.

On the day of the hearing, appellant moved to dismiss the revocation proceeding for the suspended sentence on the malicious wounding conviction. Appellant argued that the proceeding was not instituted within the time limit required by Code § 19.2-306(B). He argued the malicious wounding conviction had a maximum potential penalty of twenty years’ imprisonment and the revocation proceeding had not been initiated until more than one year after that twenty years had elapsed. The trial court took the motion under advisement and heard the evidence for revocation. After further briefing, the trial court denied the motion.

At the outset of the revocation hearing, the Commonwealth informed the Court it was not going to present the actual murder conviction, but would instead present the evidence of appellant’s other unadjudicated criminal behavior. Appellant, for his part, conceded he was in violation of the good behavior requirement of the suspension of his sentences and explained the issue was the "appropriate sentence under the circumstances."

The Commonwealth presented appellant’s prison records, the testimony of two law enforcement officers regarding their investigation of the murder and surrounding circumstances, particularly appellant’s admissions to them, and the transcript of testimony from an earlier proceeding by appellant’s cellmate. That evidence showed appellant committed numerous infractions in prison, including assault and multiple instances of threatening to kill or harm others. The evidence also showed appellant’s admissions, to either law enforcement or his cellmate, that he broke into the victim’s home on the night of the murder, stole her car, purchased and used drugs with money stolen from the victim that night, and initially lied to police during the investigation into the victim’s death. The Commonwealth also introduced evidence that appellant had stolen nearly $2,000 from the victim a few months before the murder, for which he had been charged with grand larceny, although the charge was eventually nolle prosequied .

The trial court found appellant in violation of the conditions of the suspension of his sentences and revoked that suspension. The trial court imposed all twenty-eight years that had been suspended. This appeal followed.

II. ANALYSIS

We begin by addressing the merits of appellant’s third assignment of error. Appellant argues the trial court lacked authority to revoke the suspension of his sentence on the malicious wounding conviction because the proceedings were not initiated within one year of the "maximum period for which ...