Commonwealth v. Denny

75 Va.App. 100

873 S.E.2d 112

COMMONWEALTH of Virginia, Petitioner,

v.Devin DENNY, Respondent.

Circuit Court Nos. JA023950-02-00 through JA023950-06-00

Court of Appeals of Virginia.

June 7, 2022

Pursuant to Code §§ 19.2-124(B) and -398(B), and Rule 5A:2(b), the Commonwealth appeals from the Circuit Court for the City of Alexandria's ("circuit court") denial of its motion to revoke Devin Denny's bail.¹ The Commonwealth contends that the circuit court erred by reviewing only the alleged new conduct that led to the motion to revoke bail and not the underlying offense in determining whether to revoke his bail. The Commonwealth also argues that the circuit court erred in failing to give significant weight to several factors that indicated that Denny's release would constitute an unreasonable danger to the public. For the reasons stated, we reverse the order of the circuit court.

I. BACKGROUND

Denny was charged with attempted malicious wounding, in violation of Code §§ 18.2-51 and -26, robbery, in violation of Code § 18.2-58, burglary, in violation of Code § 18.2-91, assault and battery of a family member, in violation of Code § 18.2-57.2, and destruction of property, in violation of Code § 18.2-137, all resulting from an incident involving J.L., the complaining witness and mother of his children. Following his arrest on June 14, 2021, Denny was released from incarceration by the magistrate and admitted to bail with a secured bond of $2,000. At his advisement on June 30, 2021, the City of Alexandria Juvenile and Domestic Relations District Court ("JDR court") amended Denny's bond conditions to require that he reside at 121 Yuma Street, Washington, D.C., and that he have no contact with J.L. The Commonwealth did not appeal this bail determination.

In early December 2021, the Commonwealth moved the JDR court to revoke Denny's bail based on J.L.’s allegation that Denny had violated the no-contact provision of his bond. On December 10, 2021, the JDR court held a hearing on the Commonwealth's motion to revoke bail, which it granted. Denny then appealed to the circuit court, which held a hearing on December 16, 2021.

At that hearing, the Commonwealth proffered that, in violation of the no-contact order, J.L. had received a phone call and a Facebook communication from Denny. The Commonwealth then proffered the details of the underlying incident that had led to Denny's charges, describing his alleged assault against J.L. and the related burglary, robbery, and destruction of property offenses against her. The Commonwealth also reviewed for the circuit court Denny's prior criminal history.

In response, counsel for Denny challenged the veracity of J.L.’s account of the assault and her statements regarding the subsequent contacts Denny made in violation of the no-contact order.

Counsel for Denny noted that the Commonwealth had not appealed the initial orders from the magistrate and JDR court granting Denny bail and argued that the court should "not ... revisit the entire bond issue" but instead only consider the alleged new conduct in determining whether to revoke bail. The Commonwealth disagreed, contending that the circuit court had to consider Denny's entire history and the underlying incident.

The circuit court reinstated Denny's prior secured bond. In its ruling, it noted that while "there's certainly reason to believe that he's made some contact with the alleged victim ..., the question is given all the circumstances does that necessitate revoking the bond that he was on for a number of months. And I think the answer is no." Additionally, in response to the Commonwealth's question as to whether the circuit court would stay its order to allow the Commonwealth to appeal it, the court responded, "I'm not going to stay it. But, of course, you're welcome to appeal. But I think the argument about the violent felony was made, I don't know, you said six months ago, I think the time to appeal that was then."

The Commonwealth appeals that decision.

II. ANALYSIS

The Commonwealth contends that the circuit court erred by reviewing only Denny's alleged new conduct and not the underlying offense in determining whether to revoke his bail. Based upon our review of the statutory scheme relating to bail and bail revocations, we agree.

In this case, Denny was admitted to bail by the magistrate pursuant to Code § 19.2-120, the statute governing pretrial bail. Code § 19.2-120(A) provides that "[a] person who is held in custody pending trial or hearing for an offense ... shall be admitted to bail," unless a judicial officer determines there is probable cause to believe that the accused "will not appear for trial or hearing or at such other time and place as may be directed" or "[h]is liberty will constitute an unreasonable danger to himself, family or household members as defined in [Code] § 16.1-228, or the public." Code § 19.2-120(B) provides that

[i]n making a determination under subsection A, the judicial officer shall consider all relevant information, including (i) the nature and circumstances of the offense; (ii) whether a firearm is alleged to have been used in the commission of the offense; (iii) the weight of the evidence; (iv) the history of the accused or juvenile, including his family ties or involvement in employment, education, or medical, mental health, or substance abuse treatment; (v) his length of residence in, or other ties to, the community; (vi) his record of convictions; (vii) his appearance at court proceedings or flight to avoid prosecution or convictions for failure to appear at court proceedings; and (viii) whether the person is likely to obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness, juror, victim, or family or household member as defined in § 16.1-228.

After Denny was released on bail and given a secured bond, the Commonwealth moved to revoke his admission to bail under Code § 19.2-132. That statute, which governs revocation of bail, provides in pertinent part that

[i]f the amount of any bond fixed by a judicial officer is subsequently deemed insufficient, or the security taken inadequate, or if it appears that bail should have been denied or that the person has violated a term or condition of his release, or has been convicted of or arrested for a felony or misdemeanor, the attorney for the Commonwealth of the county or city in which the person is held for trial may, on reasonable notice to the person and, if such person has been admitted to bail, to any surety on the bond of such person, move the appropriate judicial officer to increase the amount of such bond or to revoke bail. The court may grant such motion and may require new or additional sureties therefor, or both, or revoke bail.

Code § 19.2-132(A). The statute itself does not set forth any standard that courts should use when determining whether to grant or deny a motion to revoke bail. Rather, it merely provides the specific circumstances under which the Commonwealth is permitted to move to revoke a defendant's bail, where: (1) "it appears that bail should have been denied"; (2) the defendant "has violated a term or condition of his release"; or (3) the defendant "has been convicted of or arrested for a felony or misdemeanor." Id.

Pursuant to this statutory scheme, after the Commonwealth has filed a motion to revoke bail under Code § 19.2-132, a court is presented with the decision of whether to deny the motion to revoke, thus leaving the defendant's admission to bail in place, or to grant the motion, thus rescinding the defendant's admission to bail. This decision is, in substance, a determination of whether the defendant should be admitted to bail at the time the Commonwealth has filed the motion to revoke bail. Accordingly, because the court is determining whether the defendant should be admitted to bail, in a revocation proceeding under Code § 19.2-132 the court must use the same general standard for admission to bail found in the pretrial bail statute, Code § 19.2-120.²

In the instant case, the circuit court failed to consider Code § 19.2-120 in determining whether to revoke Denny's bail. Instead, it only considered the alleged new conduct, rather than viewing all of this new information in light of all of the circumstances in total, when making its determination whether to revoke bail.³ As noted above, the standard for admitting an accused to bail found in Code § 19.2-120 mandates that bail should be granted unless the court determines that there is probable cause to believe that the accused "will not appear for trial or hearing or at such other time and place as may be directed" or "[h]is liberty will constitute an unreasonable danger to himself, family or household members as defined in [Code] § 16.1-228, or the public." Code § 19.2-120(A). In addition, in making these determinations, the court should consider the factors enumerated in Code § 19.2-120(B). See Code § 19.2-120(B). One of those factors is "the nature and circumstances of the offense," which the circuit court did not consider in making its revocation decision. Code § 19.2-120(B)(i). The circuit court was required to look to Code § 19.2-120 and the factors enumerated in subsection B of the statute in determining whether to revoke bail, and it failed to do so in this case by limiting its consideration to only the new conduct alleged by the Commonwealth.

The conclusion that the court must utilize Code § 19.2-120 in a bail revocation proceeding is even more evident when viewed through the lens of the procedural posture of this case. Here, the Commonwealth moved the JDR court to revoke Denny's bail based on his alleged contacts with J.L. The JDR court granted this motion; at that point, Denny's bail was revoked and he was incarcerated. Denny then appealed to the circuit court, which held a de novo hearing on his appeal of the JDR court's bail revocation decision. Denny's appeal of the JDR court...