Taylor v. Commonwealth of Va..

• Decision Date: 28 June 2011
• Docket Number: Record No. 2236–09–1.
• Citation: 58 Va.App. 435,710 S.E.2d 518
• Parties: Kaitlin Airele TAYLORv.COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

58 Va.App. 435

710 S.E.2d 518

Kaitlin Airele TAYLOR

v.COMMONWEALTH of Virginia.

Record No. 2236–09–1.

Court of Appeals of Virginia, Chesapeake.

June 28, 2011.

James B. Melton for appellant.Kathleen Martin, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General of Virginia, on brief), for appellee.Present: KELSEY, PETTY and BEALES, JJ.KELSEY, Judge.

Kaitlin Airele Taylor appeals her conviction for grand larceny. She does not claim she was wrongly convicted or innocent of the crime. Instead, Taylor argues the trial court erred by not using its “inherent discretion and authority” to acquit her of grand larceny and substitute in its place a lesser crime of petit larceny. See Appellant's Br. at 4. The trial court held it had no such power. We agree and affirm.

I.

A grand jury indicted Taylor for grand larceny. The evidence at Taylor's bench trial proved she stole more than $200 of merchandise from a Sears store. After hearing closing arguments, the trial court pronounced Taylor guilty of grand larceny. Taylor's counsel asked if the court would “entertain a motion at the time of sentencing to find her guilty of a misdemeanor versus a felony.” App. at 106. The court did not answer the question directly but stated it would “hear whatever evidence you have at sentencing.” Id. Shortly after the trial, the court entered an order reciting that “[a]t the conclusion of the evidence” presented at trial, the court found Taylor guilty of grand larceny and continued the case for sentencing. See Order (May 18, 2009).

At the sentencing hearing, Taylor's counsel made a “motion to reduce this to a misdemeanor.” App. at 110–11. Counsel conceded, however, there was “no legal basis” for the motion given that the court had already concluded Taylor was “involved” in the theft and the property stolen “exceeded $200.” Id. at 113. Nevertheless, counsel argued, Taylor had assisted law enforcement in another matter. For that reason, counsel said, “we're asking the Court to consider reducing the ultimate charge to a misdemeanor, perhaps even deferring findings for a year's worth of probation and then deciding whether to reduce the charge, and I do believe the Court has the discretion to do that whether or not—the Commonwealth objects or not.” Id. at 115. The prosecutor opposed Taylor's motion.

The trial court pointed out the $200 threshold for grand larceny and the court's ability to defer and dismiss criminal charges were “legislative decisions.” Id. at 116. Taylor's counsel then suggested the court could “revisit” its earlier factfinding and declare the stolen property's value to be less than $200. Id. The court rejected the suggestion as a pretextual effort to call a “duck a dog.” Id. “I would be happy to do that if that was provided for in the law,” the trial judge explained, “but I think what I would have to do is create a fiction to go outside, and when the Commonwealth—it is their role in the system to determine the charge, and then it's my role to determine whether the evidence meets the charge. If it didn't, I would have found the defendant not guilty, but I'll have to deny your motion.” Id. at 116–17.¹

II.

On appeal, Taylor argues the court “erred by concluding that it did not have the inherent discretion and authority to find appellant guilty of a misdemeanor despite its finding that the value of the stolen property was $200.00 or more.” Appellant's Br. at 4 (emphasis added). Put another way, Taylor contends the trial court erred by not using its inherent discretion to acquit her of grand larceny—a crime the evidence proved beyond a reasonable doubt she committed.

We reject Taylor's argument as inconsistent with first principles of judicial power. A Virginia court's authority comes from one of three sources: (i) the express and implied powers invested in the judiciary by the Virginia Constitution; (ii) the inherent common law authority inherited from England at the time of our Commonwealth's founding; and (iii) specific legislative enactments by the General Assembly. None of these sources of power authorized the trial court in this case to acquit Taylor of grand larceny.

A. THE VIRGINIA CONSTITUTION

Adopted over a decade before the United States Constitution, the 1776 Virginia Declaration of Rights provided that “the legislative and executive powers of the State should be separate and distinct from the judiciary.” Va. Decl. of Rights § 5 (1776); see also Va. Const. ¶ 2 (1776). The original principle has endured to this day, ensuring that the legislative, executive, and judicial branches of government “shall be separate and distinct” and that no one branch could “exercise the powers properly belonging to the others.” Va. Const. art. III § 1 (1971).

The separate and independent status of the judiciary in the Commonwealth's tripartite system of government implies certain inherent powers “incident to the exercise of judicial power” vested in the courts. 2 A.E. Dick Howard, Commentaries on the Constitution of Virginia 718–20 (1974) (citation omitted). Such powers include, for example, the “authority to discipline attorneys,” In re Moseley, 273 Va. 688, 697, 643 S.E.2d 190, 195 (2007), the power of summary contempt, Robinson v. Commonwealth, 41 Va.App. 137, 145, 583 S.E.2d 60, 64 (2003), and the power to continue a case for a lawful disposition at a later date, Hernandez v. Commonwealth, 281 Va. 222, 226, 707 S.E.2d 273, 275 (2011); Moreau v. Fuller, 276 Va. 127, 137, 661 S.E.2d 841, 846–47 (2008).

But nothing in the separation-of-powers doctrine suggests a court has the inherent power to acquit a defendant of a crime that the evidence proved beyond a reasonable doubt she committed. To be sure, just the opposite is true. The assertion of a power to acquit the guilty rests upon the fallacy “that the power to enforce begets inherently a discretion to permanently refuse to do so.” Ex parte United States, 242 U.S. 27, 42, 37 S.Ct. 72, 74, 61 L.Ed. 129 (1916); see also Ex parte United States, 287 U.S. 241, 250, 53 S.Ct. 129, 132, 77 L.Ed. 283 (1932). The asserted power stands in defiance of, not in conformity with, the separation-of-powers doctrine.

As the United States Supreme Court has explained, the constitutional “distribution of powers” is unbalanced when the judiciary relies on “elements of consideration which would be otherwise beyond the scope of judicial authority” under statutes governing matters of crime and punishment. Ex parte United States, 242 U.S. at 42, 37 S.Ct. at 74.

[T]he disregard of the Constitution which would result from sustaining the proposition is made if possible plainer by considering that, if it be that the plain legislative command fixing a specific punishment for crime is subject to be permanently set aside by an implied judicial power upon considerations extraneous to the legality of the conviction, it would seem necessarily to follow that there could be likewise implied a discretionary authority to permanently refuse to try a criminal charge because of the conclusion that a particular act made criminal by law ought not to be treated as criminal. And thus it would come to pass that the possession by the judicial department of power to permanently refuse to enforce a law would result in the destruction of the conceded powers of the other departments and hence leave no law to be enforced.

Id.; see also Sorrells v. United States, 287 U.S. 435, 449–50, 53 S.Ct. 210, 215–16, 77 L.Ed. 413 (1932); accord The Federalist No. 78 (Alexander Hamilton) (“The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.”).

For this reason, a court simply has no “authority to free guilty defendants,” Sorrells, 287 U.S. at 449, 53 S.Ct. at 215, whose guilt was proved in a lawful trial. When a “defendant has been duly indicted for an offense found to be within the statute, and the proper authorities seek to proceed with the prosecution, the court cannot refuse to try the case in the constitutional method because it desires to let the defendant go free.” Id. at 450, 53 S.Ct. at 215–16. Such a practice “is inconsistent with the Constitution, since its exercise in the very nature of things amounts to a refusal by the judicial power to perform a duty resting upon it and, as a consequence thereof, to an interference with both the legislative and executive authority as fixed by the Constitution.” Ex parte United States, 242 U.S. at 50–52, 37 S.Ct. at 78 (emphasis added) (declaring unlawful the practice then called “laying the case on file”).

We agree with the reasoning of the United States Supreme Court.² The Virginia Constitution vests the General Assembly with the final authority to define the elements of a crime and, by negative implication, to identify the host of impermissible judicial “considerations extraneous to the legality of the conviction,” id. at 37, 37 S.Ct. at 72, which have nothing to do with the defendant's guilt or innocence. Virginia courts have no authority to “evaluate the ‘propriety, wisdom, necessity and expediency’ of legislation.” Laurels of Bon Air, LLC v. Med. Facilities of Am. LIV Ltd. P'ship, 51 Va.App. 583, 599, 659 S.E.2d 561, 569 (2008) (citation omitted). Faithful to this tradition of judicial self-restraint, a Virginia court cannot refuse to convict a guilty defendant merely because it questions the category of offense assigned by the legislature, considers the range of statutory punishment too harsh, or believes certain guilty offenders undeserving of a criminal conviction.³ “Judicial nullification” of a constitutionally valid criminal statute “has, happily, no place in our system.” Sorrells, 287 U.S. at 450, 53 S.Ct. at 216.

Equally important, the Virginia Constitution vests Commonwealth Attorneys with “the discretion to decide under which of several applicable statutes the charges shall be...