Harris v. Commonwealth
| Decision Date | 27 September 2022 |
| Docket Number | Record No. 1174-21-4, Record No. 1372-21-4 |
| Citation | 75 Va.App. 534,878 S.E.2d 33 |
| Parties | Jason Sam HARRIS v. COMMONWEALTH of Virginia Jason Harris, s/k/a Jason Sam Harris v. Commonwealth of Virginia |
| Court | Virginia Court of Appeals |
Paul D. Fore, Senior Trial Attorney, for appellant.
Timothy J. Huffstutter, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Present: Judges O'Brien, Lorish and Senior Judge Annunziata
OPINION BY JUDGE LISA M. LORISH
When a former defense attorney begins working as a prosecutor, the Office of the Commonwealth's Attorney must implement screening procedures to protect the due process rights of any of the former clients of that attorney, should those clients later face additional criminal proceedings. A court reviewing those procedures should consider a range of factors to decide whether the former defense attorney was effectively screened from a related matter. We find no error here in the court's conclusion that Harris's former attorney was effectively screened from the prosecutor working on his new probation violation proceeding.
In 2010, Harris was convicted of two counts of petit larceny, third or subsequent offense, failure to appear, and forgery of a uniform summons. The court sentenced him to thirteen years’ incarceration with nine years and six months suspended, conditioned on good behavior and the successful completion of supervised probation. In December 2017 and again in June 2019, the court found he had violated the conditions of his suspended sentence, revoked his sentence, and then resuspended it in part. Roshni Dhillon, an Assistant Public Defender in Fauquier County, represented Harris in the June 2019 revocation proceedings.
Dhillon then took a position as an Assistant Commonwealth's Attorney in Fauquier County in September 2019. As part of her transition, she compiled a list of cases that might create a conflict of interest. She included Harris's revocation case on that list.
In July 2020, Harris was arrested on a new charge for failing to register as a violent sex offender. Harris's new public defender emailed Abigail Owens, the Senior Assistant Commonwealth's Attorney who was prosecuting Harris, and asked whether Owens intended to seek a special prosecutor because of Dhillon's prior representation of Harris. Owens responded within minutes: "She previously represented him on this charge?" After clarifying that Dhillon had not represented him on the failure to register charge, but for a prior probation violation, Owens said that they would not be getting a special prosecutor.
In October 2020, Harris reached an oral agreement with the Commonwealth where he would waive a preliminary hearing and plead guilty to the failure to register charge in exchange for the Commonwealth not bringing any other charges. Before that plea could be entered, Harris's probation officer reported alleged violations of the term of probation Harris was serving for his 2020 offenses, based on (1) the new charge of failing to register as a violent sex offender, (2) a new conviction for unauthorized use of a motor vehicle in another jurisdiction, and (3) the fact that Harris had changed his address without notifying his probation officer and absconded from supervision. The same public defender was appointed to represent Harris on the probation violation charges.
Harris then made a motion to appoint a special prosecutor for both the failure to register as a sex offender charge and the new revocation proceeding. At a hearing on the motion, Harris argued that there was a conflict of interest because Dhillon had "obtain[ed] confidences" when she represented him in the 2019 revocation. Harris asserted that the Commonwealth had not effectively screened Dhillon from Owens (the attorney prosecuting Harris) because Owens had not even realized there was a conflict until Harris's counsel emailed her.
In response, the Commonwealth proffered that it had contacted the Virginia State Bar Ethics Counsel upon hiring Dhillon and was complying with the advice it had received. The Commonwealth also explained its screening procedures for potential conflicts. In this case, Dhillon's conflict was noted on all of Harris's case files and Dhillon was excluded from working on his cases. The Commonwealth also submitted affidavits from Owens and Dhillon. Owens certified that Dhillon was not involved in prosecuting Harris and that the front of Harris's file was marked with "RD Conflict" to ensure "other members of [the] office" would not "involve" Dhillon in the case. Dhillon certified that she had not "been involved" with Harris's cases or disclosed "any client confidences." Both Owens and Dhillon verified that they would continue to take precautions to ensure Dhillon was "in no way involved" in the prosecution of Harris's cases. Finally, the Commonwealth argued that Harris's motion was motivated by gamesmanship and the hope that a special prosecutor might consider a global resolution to the pending matters—something Owens had rejected.
The trial court2 denied the motion, concluding that there was no per se rule that required a special prosecutor under the circumstances and that the Commonwealth's affidavits established that Dhillon had been appropriately screened from Harris's cases. The court also agreed with the Commonwealth that Harris's motion had been made strategically because he "could not get a global resolution" of his cases.
Harris later pled guilty to failing to register as a violent sex offender. At the plea hearing, the trial court went through a thorough plea colloquy with Harris to ensure his plea was knowing and voluntary. The trial court accepted the plea and convicted Harris of failing to register as a violent sex offender. The trial court then found Harris in violation of his probation. Harris was sentenced for the failure to register and the probation violation in October 2021, and he timely appealed both judgments.
More than twenty-one days later, Harris moved the trial court, under Code § 19.2-303, to reconsider its ruling denying his motion to appoint a special prosecutor and to grant a new sentencing hearing. The motion restated the arguments Harris presented in his initial motion to appoint a special prosecutor and asserted that the court had a duty to protect the judicial process from the appearance of impropriety. The trial court denied Harris's motion for reconsideration without a hearing. Harris timely noted a second appeal, challenging the trial court's order denying his motion to reconsider and request for a new sentencing hearing.3
Harris argues that the trial court should have granted his motion to appoint a special prosecutor to protect the judicial process from the appearance of impropriety. In so arguing, he invokes the "due process rights of a criminal defendant under both the Virginia and United States Constitutions [which] are violated when a Commonwealth's Attorney who has a conflict of interest relevant to the defendant's case prosecutes the defendant." Powell v. Commonwealth , 267 Va. 107, 138, 590 S.E.2d 537 (2004). While the " ‘decision whether to disqualify a [prosecutor] in a particular case is committed to the sound discretion of the trial court,’ ... ‘whether a defendant's due process rights are violated ... is a question of law, to which [this Court] appl[lies] a de novo standard of review.’ " Brown v. Commonwealth , 74 Va. App. 721, 736, 872 S.E.2d 204 (2022) (alterations in original) (first quoting Lux v. Commonwealth , 24 Va. App. 561, 569, 484 S.E.2d 145 (1997) ; then quoting Price v. Commonwealth , 72 Va. App. 474, 488 n.5, 849 S.E.2d 140 (2020) ). We are "bound by the trial court's findings of historical fact unless plainly wrong or without evidence to support them." Matthews v. Commonwealth , 65 Va. App. 334, 341, 778 S.E.2d 122 (2015) (quoting McGee v. Commonwealth , 25 Va. App. 193, 198, 487 S.E.2d 259 (1997) (en banc )).
We start by addressing a procedural matter. The Commonwealth argues that Harris waived his right to appeal when he pled guilty to his failure to register charge and so he is foreclosed from arguing on appeal that the trial court should have granted his motion for a special prosecutor in that case. We agree. "An unconditional guilty plea constitutes a waiver of the right to appeal all non-jurisdictional antecedent rulings and cures all antecedent constitutional defects."
Delp v. Commonwealth , 72 Va. App. 227, 235, 843 S.E.2d 758 (2020) (quoting Terry v. Commonwealth , 30 Va. App. 192, 197, 516 S.E.2d 233 (1999) (en banc )). At his guilty plea hearing, Harris expressly acknowledged that he was waiving his "right to appeal any decision" of the trial court.4 By pleading guilty unconditionally, Harris waived both his challenge to the trial court's ruling denying a special prosecutor and the denial of his motion to reconsider based on the same argument.
But Harris did not waive the right to appeal the trial court's rulings in his probation revocation case. So we proceed to the merits of whether the trial court erred by not appointing a special prosecutor for the revocation proceedings.
A trial court has the "power to disqualify a Commonwealth's attorney from proceeding with a particular criminal prosecution if the trial court determines that the Commonwealth's attorney has an interest pertinent to a defendant's case that may conflict with the Commonwealth's attorney's official duties." Lux , 24 Va. App. at 568, 484 S.E.2d 145. This power is not freestanding but is instead grounded in a criminal defendant's "constitutional protection against prosecutors who are partial to interests beyond their official duties." Id. at 568-69, 484 S.E.2d 145. These due process rights "under both the Virginia and United States Constitutions" protect a defendant from prosecution by a prosecutor with "either a personal interest in the outcome of the prosecution or an interest arising from his or her former...
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