CrimLaw

Burpo v. Commonwealth [U]:

You walk into court for a sentencing hearing with a recommended sentence of 1 day to 3 months (Virginia's guidelines are only recommendations). As you stand there, with no prior warning whatsoever, the judge tells you he is going to ignore the guidelines and punish your client more severely because he exercised his right to plead not guilty. You object stating:

I have to object for the record to the Court to consider the fact that he wished and exerted his right to go to trial against him, and not considering the guidelines just because he didn't enter a guilty plea.

And on appeal the Virginia Court of Appeals denies your appeal because you did not properly preserve it:

Burpo argues that the trial court violated his constitutional right to a fair trial and deprived him of his right to liberty without due process under the Fifth, Sixth, and Fourteenth Amendments. He claims these rights were violated at sentencing when the trial judge indicated that he departed from the sentencing guidelines because of Burpo's "not guilty" plea. Burpo contends that the Constitution forbids a trial court from penalizing a defendant for asserting his constitutional rights. See e.g., Griffin v. California, 380 U.S. 609, 614 (1965); Doyle v. Ohio, 426 U.S. 610 (1976).

Upon a review of the record, we find that the constitutional issue Burpo raises on appeal was not properly preserved. Rule 5A:18 states in pertinent part: No ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefore at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice. A mere statement that the judgment or award is contrary to the law and the evidence is not sufficient to constitute a question to be ruled upon on appeal.

The purpose of the rule is to afford the trial court an opportunity to rule intelligently on the issue presented. Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991). The rule applies to all types of cases, including those with constitutional rights at issue. See Swann v. Commonwealth, 247 Va. 222, 229, 441 S.E.2d 195, 201 (1994) (consideration barred because objections not based on the constitutional grounds asserted for first time on appeal); Ashby v. Commonwealth, 33 Va. App. 540, 544-45, 535 S.E.2d 182, 185 (2000) (Rule 5A:18 barred consideration of speedy trial issues under United States and Virginia Constitutions); Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991) (Rule 5A:18 barred consideration of statutory argument not raised in trial court); Cottrell v. Commonwealth, 12 Va. App. 570, 574, 405 S.E.2d 438, 441 (1991) (Rule 5A:18 barred consideration of constitutional question not raised in trial court). Burpo did not raise the constitutional issue in the trial court. Furthermore, the record does not reflect any reason to invoke the good cause or ends of justice exceptions to Rule 5A:18 to allow us to consider the constitutional issues that Burpo asserts for the first time on appeal. "In order to avail oneself of the exception, a defendant must affirmatively show that a miscarriage of justice has occurred . . . ." Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997). Without even a mention of Rule 5A:18 or ends of justice, it is obvious that there is no affirmative showing of cause for invoking the rule.

In other words, although the Defense attorney objected to violations of rights which we all know (at least since out 8th grade Civics course) are constitutionally based and guaranteed - He didn't say the magic words: 6th & 14th Amendments. As well, when surprised by a judge who was not going to follow the guidelines for an unconstitutional reason, for some reason the Defense counsel did not have all the appropriate caselaw at hand to cite in order to preserve his objection. I'm shocked! Shocked, I say! I mean, I know that I come to court each time with a file cabinet full of preprepared briefs which exactly phrase the objection as it must be and then back it up with scads of entirely on point cases.

Yeah Right.

This is usually the most bogus of reasons used by the appellate courts to refuse to hear a case. On the odd occasion it makes sense such as when a lawyer does not raise a 19.2-270.1 objection at trial and later tries to make it his appellate argument. A hyper-technicality raised after a client is found guilty on the facts and the case is combed through for something, anything to appeal. However, in a case such as this, where the objection raises issues which we all clearly recognize a hyper-technicality is used to turn the appeal away. How is this acceptable behavior from the appellate court?