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Just One Published Decision Today — an En Banc Order — And It’s a Humdinger!

If like me, dear reader, you await the Tuesday missive’s from the Court of Appeals announcing new opinions to peruse, you, like, me were surprised that no such missives appeared in your inbox (or perhaps mine were diverted by some gremlin?).  In any case, I checked the website and determined that while there were 15 unpublished opinions (all affirmances — about which I shall speak at the end of this post), there were no published opinions today.  But there was a published decision and a most unusual one at that.  What made it so?  Let me count the ways:

  1. It was a published order from an en banc court.

  2. But it was not from rehearing of a panel decision.

  3. All 17 members of the Court sat on the case.

  4. The decision was 16-1.

  5. It was a Commonwealth’s appeal.

  6. It was from a determination to not revoke bond pending trial following a violation of the conditions of bond.

The facts of the case could not be more straightforward.  Devin Denny, a resident of the District of Columbia, was charged in the city of Alexandria with various offenses related to the assault of J.L. with whom Denny has an unspecified number of children.  He was initially let out by a magi state on $2000 bond and at his advise was further advised that as a condition of his remaining free he should have no contact with J.L.  Denny allegedly violated this provision about six months later by a phone call and Facebook post, but no physical contact, and the Commonwealth sought to revoke his bond in the J&DR Court, which granted the request.

Denny appealed to the circuit court and there his attorney made a most unusual argument.  Denny’s counsel contended that as the Commonwealth had not appealed the initial conditions of Denny’s bond, the circuit court should not consider the alleged offenses as part of its calculus of whether Denny should now be placed in custody.  Rather, counsel contended that the only issue was whether Denny’s contact with J.L. was a sufficient ground to revoke his bond.

At the conclusion of the hearing, the circuit court determined to reinstate the bond revoked by the J&DR court.  In doing so, it did not expressly state that it was not considering Denny’s potential danger to the community based on the alleged criminal acts, nor did the court say that it had considered them.  But the court did tell the Commonwealth it could appeal the decision, although it thought that the Commonwealth’s opportunity to appeal based on the felony charges, rather than the violation of the terms of the bond, should have been raised when the bond was initially granted.

The Commonwealth did appeal, but not simply to challenge the reinstatement of the bond — a matter committed to the circuit court’s sound discretion, and therefore a likely loser for the Commonwealth — the Commonwealth also asserted that the circuit court should have, but in its view did not, consider the seriousness of offenses with which Denny had been charged.  The Commonwealth contended that the court’s statement about the time to challenge that determination having passed was evidence that the court did not consider the offenses charged as part of its calculus.

Now bond appeals are curious things.  Because they are directed by statute to be expedited, the “appeal” is treated as a motion under Rule 5A:2.  Accordingly, the case is not assigned a docket number and is typically referred to a panel of judges which issues an order, not an opinion — because motions are decided by orders.  Typically such orders are not published because they are almost always based on lack of abuse of discretion.

In this instance, however, the panel that looked at the Commonwealth’s “motion” had a problem — on the members disagreed with the majority, which was set to remand the case telling the judge to reconsider the evidence giving attention to the crimes charged.  The dissenting Judge, we can infer from the dissent in today’s order, was having none of that — not because she, for it was Judge Chaney, agreed with Denny that the court could not consider that evidence but because she was of opinion that the record failed to support the notion that the judge had not done so. The disagreement was sufficiently strong that the panel did not issue its order, but instead the Court issues a sua sponte order taking the matter up en banc, with Judge Chaney dissenting from that action.

As you can already guess from the introduction, the 14 other Judges sided with the majority from the panel and issue a six page decision explaining that every time bond is reconsidered, the court must review the totality of there record and apply the same review required by Code § 19.2-120(B).  Judge Chaney dissent is just over 9 pages and takes the majority to task on several points, starting with the already noted observation that the record, if viewed in the light favorable to the party prevailing below, “does not support the Court’s findings that (i) ‘the circuit court failed to consider Code § 19.2-120 in determining whether to revoke Denny’s bail’ and (ii) the circuit court ‘only considered the alleged new conduct, rather than viewing all of the circumstances in total, when making its determination whether to revoke bail.'”

She notes that although Denny contended that the circuit court should not consider the underlying offenses, both his counsel and the prosecutor argued the merits of those charges and what they portended about Denny’s propensity for violence.  She further notes that in its bench ruling, the court expressly stated it was “considering all the circumstances” with no indication that this was limited to the violation of the bond only.

Judge Chaney also takes the Commonwealth to task for a mischaracterization of the proceeding as a motion for bond and notes that the majority was complicit in this mischaracterization. The Commonwealth calls the hearing in the circuit court a motion for bond by Denny, contending that his bond had been revoked in the J&DR Court and he now had the burden of obtaining a new bond, and that it how the majority sees it too.  But Judge Chaney says, No, it was an appeal de novo of a decision the J&DR courts revoking of a bond, and on appeal de novo the Commonwealth had the burden to show why the bond should be revoked.

Lastly, Judge Chaney notes that the record amply supports the circuit court’s decision to not revoke the bond.  Indeed, she lists all the many factors in favor of having Denny remain free — possibly as a tool for the circuit court to crib from on remand.

Now, I will admit that I appreciate Judge Chaney chutzpah for being willing to go up against her 16 colleagues.  More than that, I must concede that I find much merit to her arguments, especially as to the procedural posture of this case in the circuit court being an appeal de novo — she is simply right about that and the majority now stand for the proposition that when a district court revokes (rather than denies) a request for pre-trial bond, there is no “appeal” from that judgment, rather the defendant must seek a new bond in the circuit court.  That simply cannot be right for a very simple reason — when a bond is still under the control of the district court because there is no indictment or information against the defendant as of yet the circuit court has no independent jurisdiction to grant bond.  The circuit court’s jurisdiction is derivative of that district court’s and therefor must be from a de novo appeal.

Having said that, I do see why the Court of Appeals felt that it had to address this issue because the majority is correct that the circuit court should consider the totality of the circumstances in determining whether to revoke bond — and unlike Judge Chaney I think there is some room for doubt that the circuit court did so in this case.  Certainly enough doubt that I do not think the majority was too far off the mark in deciding to err on the side of caution.

So now we we wait to see if Denny appeals to the Supreme Court or accepts the remand at which time I presume the circuit court will review the evidence in toto and reinstate the bond.

Now a brief word about those 15 unpublished decisions.  I think it is fairly clear that at least some of these cases were “auto-granted” because the petitions were pending one judge orders or three-judge review on January 1, 2022 and the Court is now disposing of them by unpublished opinions that say, in effect, what the one-judge order would have.  It remains to be seen whether the Court will continue to have nearly meritless appeals that must be dealt with this way and, if so, whether the new process will really be more efficient.

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