Richardson v. Commonwealth
| Citation | 796 S.E.2d 854,67 Va.App. 436 |
| Decision Date | 07 March 2017 |
| Docket Number | Record No. 0051-16-2 |
| Court | Court of Appeals of Virginia |
| Parties | Gregory A. RICHARDSON v. COMMONWEALTH of Virginia |
Joan J. Burroughs (The Law Office of Joan J. Burroughs, PLC, on brief), for appellant.
Leah A. Darron, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: Judges Petty, Russell and Malveaux
OPINION BY JUDGE MARY BENNETT MALVEAUX
Gregory Richardson ("appellant") refused to participate in the colloquy during his arraignment for felony indecent exposure in the Circuit Court of Nottoway County. The trial court interpreted his silence as both a waiver of his right to be tried by a jury and an acquiescence to being tried by the court. Appellant argues here that the trial court's actions violated his rights under the Constitution of Virginia. We agree.
Appellant resides at the Virginia Center for Behavioral Rehabilitation ("VCBR"), to which he was committed for treatment as a sexually violent predator. In March 2015, appellant exposed his genitals to one of VCBR's employees. Appellant, who had been convicted twice of exposing himself to another person within a ten-year period, was indicted for felony indecent exposure in violation of Code §§ 18.2-387 and -67.5:1.
At trial, appellant took issue with the performance of his court-appointed counsel. He alleged that despite numerous letters sent to his attorney, the two had not met to discuss the "logistics" of the case until a couple of days before trial. He said he had "no way of knowing how to make the correct decision and how to pursue this matter" because he felt he had not been properly assisted by counsel. Appellant's trial counsel expressed his belief that he could capably defend his client; however, he conceded that he had failed to subpoena videotape from VCBR showing the circumstances surrounding the indecent exposure. The trial court denied both appellant's request for new counsel and his attorney's request for a continuance to subpoena the video footage.
After the court denied these motions, appellant became noncompliant. Appellant refused to stand for his arraignment, prompting the court to find him in contempt. After bailiffs lifted appellant up, he refused to respond when asked for his plea. The court interpreted his silence as a plea of not guilty.
When appellant continued to refuse to participate in the colloquy, the trial court announced that it would interpret his silence as assent to a number of statements. The last of these statements was the court's assumption that appellant intended to waive his right to trial by jury:
Neither appellant nor his counsel responded to the trial court's questions.
The trial court, sitting without a jury, heard the case and found appellant guilty. The trial court entered two, identical conviction orders, which recited that neither appellant nor his trial counsel had "demand[ed] trial by jury." Appellant filed a pro se motion to vacate and set aside the trial court's finding of guilt. Among other issues, the motion asserted that the trial court improperly conducted a bench trial in violation of Article I, Section 8 of the Constitution of Virginia.
Appellant timely noticed his appeal to this Court. His sole issue on appeal is "The Court failed to properly ascertain a plea of not guilty and want for a trial by judge." This appeal follows.
On appeal, appellant contends that he never knowingly and voluntarily waived his right to a jury trial. The Commonwealth does not dispute this assertion; indeed, the Commonwealth concedes that "there is a ‘presumption against [a] waiver of fundamental constitutional rights.’ "
Instead, the Commonwealth's nuanced position is that while appellant's silence was not a waiver of his right, it was a waiver of his opportunity to object to its violation. As the Commonwealth points out, Rule 5A:18 ordinarily permits review of an error only if "an objection was stated with reasonable certainty at the time of the ruling." Because neither appellant nor his counsel stated any objection to the trial judge's decisions during the colloquy, the Commonwealth reasons that appellant is barred from raising the issue on appeal. And even if we reached the merits, the Commonwealth argues, we must afford a trial judge some discretion in dealing with an uncooperative defendant during colloquy.
There are two problems with these arguments. First, contrary to the Commonwealth's assertion, appellant did object to the denial of his jury trial rights by filing a motion to vacate after his trial. We previously have permitted criminal defendants to preserve an objection to the erroneous denial of a jury trial by filing a motion to set aside a verdict. See McCormick v. Virginia Beach , 5 Va.App. 369, 371, 363 S.E.2d 124, 125 (1987) (). We see no reason why a motion to vacate cannot be used for the same purpose.1
The second and more fundamental problem is that the trial judge's actions did not implicate merely his discretion but also his jurisdiction under the Constitution of Virginia.2
This case requires us to analyze the Constitution of Virginia as well as the scope of the trial court's jurisdiction. Both issues present questions of law, which we review de novo . See Shivaee v. Commonwealth , 270 Va. 112, 119, 613 S.E.2d 570, 574 (2005) ; Holland v. Commonwealth , 62 Va.App. 445, 451, 749 S.E.2d 206, 209 (2013).
Virginia long has guaranteed criminal defendants "the right to a speedy and public trial, by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty." Va. Const. art. I, § 8. This is the default form of a criminal trial in Virginia's circuit courts; although the accused may waive his right to trial by jury, he has no corresponding right to be tried by a judge. See O'Dell v. Commonwealth , 234 Va. 672, 689, 364 S.E.2d 491, 501 (1988).
Our Constitution specifies when a court may try the accused's case without a jury:
If the accused plead not guilty, he may, with his consent and the concurrence of the attorney for the Commonwealth and of the court entered of record , be tried by a smaller number of jurors, or waive a jury. In case of such waiver or plea of guilty, the court shall try the case.
Va. Const. art. I, § 8 (emphasis added).3
"Compliance with the mandatory provisions of Section 8 of the Constitution is essential to the jurisdiction of the court to try an accused without a jury." Cunningham v. Smith , 205 Va. 205, 208, 135 S.E.2d 770, 773 (1964). "In those cases where the jurisdiction of the court depends upon compliance with certain mandatory provisions of law, the court's order, spread upon its order book, must show such compliance or jurisdiction is not obtained." Id. ; see also Cave v. Cunningham , 203 Va. 737, 738-39, 127 S.E.2d 118, 119 (1962) (); Catlett v. Commonwealth , 198 Va. 505, 507-08, 95 S.E.2d 177, 178-79 (1956) (same).
This Court similarly observed in Wright v. Commonwealth , 4 Va.App. 303, 308, 357 S.E.2d 547, 550 (1987), that the trial court's failure to enter the accused's consent and the required concurrences in the record was an independent basis for setting aside the appellant's convictions. In that case, the conviction order "merely recite[d] that the ‘court proceeded to hear and determine the case without a jury.’ " Id. Because "[n]othing further ... establishe[d] that Wright's consent and the concurrence by the Commonwealth's attorney and the court were entered ‘of record’ as constitutionally mandated," we concluded it was necessary to set the order aside. Id.
As appellant notes on brief, the conviction orders in this case do not recite his express waiver or consent. The orders state:
The Court entered a plea of not guilty on behalf of the defendant. After being first advised by his counsel and by the Court of his right to trial by jury, the defendant, nor his counsel, did not demand trial by jury and with the concurrence of the Attorney for the Commonwealth and the Court, here entered of record, the Court proceeded to try this case without the intervention of a jury as provided by law....
These orders make apparent that the trial court deemed appellant's failure to demand a jury trial as constitutionally sufficient to manifest his consent. The waiver provision in the Constitution of Virginia, however, does not require a criminal defendant demand a jury trial. Rather, our Bill of...
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..."Commonwealth of Virginia versus Dominic Alex Nunez." (JA 6–7). "A court speaks only through its orders." Richardson v. Commonwealth , 67 Va. App. 436, 446, 796 S.E.2d 854, 859 (2017) (quoting Cunningham v. Smith, 205 Va. 205, 208, 135 S.E.2d 770, 773 (1964) ). Compare Ghameshlouy v. Common......
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