Jeffrey v. Commonwealth

• Docket Number: Record No. 1257-22-3
• Decision Date: 14 March 2023
• Citation: 77 Va.App. 1,884 S.E.2d 225
• Parties: Robert Lee JEFFREY, Jr., Appellant, v. COMMONWEALTH of Virginia, Appellee.
• Court: Virginia Court of Appeals

77 Va.App. 1

884 S.E.2d 225

Robert Lee JEFFREY, Jr., Appellant,

v.COMMONWEALTH of Virginia, Appellee.

Record No. 1257-22-3

Court of Appeals of Virginia.

March 14, 2023

Whether to release on bail a defendant convicted of a felony is a challenging decision best left to the sound discretion of a trial judge. When a trial court properly considers the totality of the circumstances, including a petitioner's likelihood of success on appeal, we will not disturb the decision on whether to grant or deny post-conviction bail absent an abuse of discretion.

On September 27, 2022, Robert Lee Jeffrey, Jr., ("Jeffrey") requested review of the Circuit Court for the City of Roanoke's denial of post-conviction bail, pursuant to Rule 5A:2. On October 5, 2022, the majority of a three-judge panel of this Court found that the trial court abused its discretion in denying Jeffrey post-conviction bail and remanded the matter for further action. The Commonwealth requested en banc review of that decision and a stay pending full Court review. On October 14, 2022, the Court granted that request.

Jeffrey claims that the trial court abused its discretion when it denied him post-conviction bail.¹ The Commonwealth contends the trial judge correctly denied bail and asserts that Jeffrey's claim was waived by his failure to articulate how the circuit court abused its discretion in his motion for review. We assume without deciding that the objection was properly preserved. Based on our review of the applicable statute and controlling precedent, and considering Jeffrey's likelihood of success on appeal, we find the trial court did not abuse its discretion in denying Jeffrey's bail. We affirm.

I. BACKGROUND

Robert Lee Jeffrey, Jr., was convicted of two felony counts of obtaining money by false pretenses after a jury trial and pled no contest to one count of felony embezzlement. The charges arose from Jeffrey's application for, and receipt of, $15,000 in CARES Act grants for his two businesses. Jeffrey ultimately embezzled over $200,000 from entities that one of his businesses managed.

On August 22, 2022, the trial court, in connection with his sentencing, conducted a hearing on Jeffrey's motion to withdraw his no contest plea. The trial judge denied the motion to withdraw and sentenced Jeffrey for his three convictions. Neither party offered any additional evidence at the hearing. During sentencing, the Commonwealth asserted that Jeffrey expressed no remorse for his actions, because he exploited funds earmarked to uplift Roanoke citizens after the devastation of COVID-19 for his personal gain and brazenly used these public benefits to maintain his lavish lifestyle through weekend trips, cash payments to women, and shopping excursions. Defense counsel highlighted Jeffrey's positive factors, including his history of devotion to public service and the minority community and his local spirit as a Roanoke native.

After considering all the evidence and argument of counsel, the trial court sentenced Jeffrey to eight years’ imprisonment, suspending all but two years and six months.² After pronouncing Jeffrey's sentence and in response to his request for probation, the trial court made the following comment:

And there was some mention of Mr. Jeffrey being remanded to custody following his conviction. It is the practice of this Court, in every single case, in which an individual in this community has been convicted of a felony crime to be remanded to custody; no matter who he is, she is, what color, race, sex, or gender. If you've been convicted of a felony, you're going to jail that day and I have done that every single time.

Jeffrey informed the court that he would be filing a notice of appeal and sought release on bail, pending his appeal of the convictions. The court stated that it would be "happy to hear [Jeffrey] on the bond request" and took up the matter at that time.³

In support of bail, Jeffrey noted that he was fifty-three years old, had no prior criminal record, suffered from stage four kidney disease

requiring weekly dialysis, and had personal ties to Roanoke. The Commonwealth opposed the motion for bail, arguing that Jeffrey was a "financial predator" who preyed on nonprofit organizations and the City of Roanoke, and a three-time convicted felon, who would "endanger the community at large." After considering all arguments, the trial court denied Jeffrey's bail request, noting that he no longer enjoyed the presumption of innocence, that he had three felony convictions, that his actions were egregious, and that his likelihood of success on appeal were "in the court's estimation, zero." Jeffrey appealed the decision to deny him post-conviction bail.

II. ANALYSIS

"Unlike Code § 19.2-120 which governs pre-conviction bail, Code § 19.2-319 contains no general standards by which the exercise of discretion to grant or deny post conviction bail may be measured." Dowell v. Commonwealth , 6 Va. App. 225, 228, 367 S.E.2d 742 (1988). Instead, the judge "may, and in any case of a misdemeanor shall, set bail in such penalty and for appearance at such time as the nature of the case may require." Code § 19.2-319. This statute contemplates that the trial court's grant of post-conviction bail "will be exercised with a reasonable discretion, and unless it appears to an appellate court that such discretion has been abused, the appellate court should not disturb the action of the trial court." Dowell , 6 Va. App. at 228, 367 S.E.2d 742. "[P]ost-conviction bail is generally less liberally accorded than in the pretrial stage." Id. The statute seems to suggest a defendant's sentence can be postponed to allow him to file his appeal, however, that is not at issue in this case.⁴

The decision to grant or deny bail post-conviction must be made by the trial judge upon a consideration of the totality of the record, considering factors such as "[t]he nature and circumstance of the offense, the fact of conviction, the quantum of punishment assessed, defendant's ... employment [status], defendant's record of escape, and defendant's apparent propensity for violence." Commonwealth v. Smith , 230 Va. 354, 363, 337 S.E.2d 278 (1985). Other relevant characteristics include the "age of the defendant, his health, his ties to the community, the pendency of other charges against the defendant," in addition to other factors to determine whether "the defendant will appear when required ... and whether the defendant's liberty represents an unreasonable danger to himself and the public." Dowell , 6 Va. App. at 229, 367 S.E.2d 742. We have explained that this is a case-by-case determination:

Because each case has its own unique factors, precise rules cannot be formulated. However, whatever factors are used and considered determinative must bear upon the essential questions whether the defendant will appear at further proceedings when required to do so and whether defendant represents an unreasonable danger to himself and the public.

Id.

Today we apply these well-tested standards and affirm, for the reasons discussed below, that the likelihood of success on appeal is an additional factor a trial may properly consider. And we find here that the trial court appropriately considered the evidence before it and did not abuse its discretion when it denied Jeffrey's request for bail.

A. The trial judge considered Jeffrey's circumstances in denying his post-conviction bail request.

The record reveals that the trial court considered Jeffrey's dangerousness to the public, his three felony convictions, and the nature of his crime. While reasonable minds may differ about the degree to which he may be a danger to the public if released, the trial judge's rationale was not unreasonable. Unless the trial court abused its discretion by acting unreasonably, "the appellate court should not disturb the action of the trial court." Id. at 228, 367 S.E.2d 742. "This bell-shaped curve of reasonability governing our appellate review rests on the venerable belief that the judge closest to the contest is the judge best able to discern where the equities lie." Minh Duy Du v. Commonwealth , 292 Va. 555, 564, 790 S.E.2d 493 (2016) (quoting Sauder v. Ferguson , 289 Va. 449, 459, 771 S.E.2d 664 (2015) ). "Only when reasonable jurists could not differ can we say an abuse of discretion has occurred." Commonwealth v. Swann , 290 Va. 194, 197, 776 S.E.2d 265 (2015) (quoting Grattan v. Commonwealth , 278 Va. 602, 620, 685 S.E.2d 634 (2009) ). A trial court abuses its discretion by failing to consider a significant relevant factor, giving significant weight to an irrelevant or improper factor, committing a clear error of judgment, or making a mistake of law. See Minh Duy Du , 292 Va. at 564-65, 790 S.E.2d 493 ; Lawlor v. Commonwealth , 285 Va. 187, 213, 738 S.E.2d 847 (2013). The "abuse of discretion standard" requires this Court "to show enough deference to a primary decisionmaker's judgment that the Court does not reverse merely because it would have come to a different result in the first instance." Lawlor , 285 Va. at 212, 738 S.E.2d 847.

Following argument, the trial court made the following findings on the motion:⁵

Let's be sure the record reflects the discretion that I'm exercising. And the discretion that I'm exercising is: One, Mr. Jeffrey no longer enjoys the presumption of innocence. He is now a three time convicted felon, having pled guilty to one crime, no contest, but pled guilty to one crime and out of a Jury of his peers in twenty-five minutes time convicted him of two additional felonies.

Second, his actions and his egregious actions not only given his position, but his breach of the public trust to the citizens of this community, to the benefactors of the—of the nonprofits for which he served requires and deserves punishment. And punishment now.

Third, insofar as the Court is concerned, the likelihood of success on the merits of any of these claims, on the Jury trial or on the case to which he pled guilty are, in the

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