12 July 2004

Virginia Court of Appeals 07/06

Fox v. Commonwealth - Subject: Whether a statute which authorizes an officer to arrest for a misdemeanor with “reasonable belief” that the accused is likely to harm himself or another person is an unconstitutionally subjective test.

The objective test is “whether evidence supports a reasonable belief that the statutory circumstances obtain.” Applying Whren (pretext stops are constitutional because the Federal Supreme Court will not look to the real reason of the stop if the officer can point to the slightest of legal violations noted before the stop), the Court decides that “[w]hether the officer actually believed that the statutory circumstances obtained is immaterial.” Rather, the courts will review the circumstances and decide whether there were objective factors.

[comment] Of course, a plain reading of the statute does not support the Court’s analysis. The statute specifically states “reasonably believed by the arresting officer.” Since statutes are to be strictly construed against the Commonwealth, that very straightforward direction from the Legislature should have decided the issue. The Court could have issued a very simple one paragraph opinion: “Reasonable belief is a belief based upon objective factors. Throwing a pistol with the serial number scratched off away as you run from the police provides a plethora of objective factors supporting this arrest.”

Apparently, the court did not do this because the officer’s testimony contained no discussion of the objective facts supporting the arrest. The Whren analysis applied instead just feels tortured. The basic holding of Whren is that if the officer can state an objectively supported reason the courts will not seek anything deeper (like the real reason). This court turns that into “we look only at the facts and will not even consider the officer’s belief.” Again, this is absolutely not supported by the statute.

The underlying “save the officers from their own stupidity” philosophy also bothers me. As a Defense attorney I can say with almost 98% surety that officers will be able to state the reason for their arrest and back it up with objective factors; if the officer in this case did not the most likely reason is a failure in trial prep or questioning by the prosecutor. Officers do not need to be rescued by the courts; when the courts do it is somewhat insulting and annoys that part of my soul which disfavors elitism.

Baldwin v. Commonwealth - Subject: Post-trial hearings and preservation of the record.

Time line:
30 April - Judge departs upward over 11 years from the guidelines
30 April - Defense objection and motion to modify sentence
24 May - Order entered on firearm conviction (not subject of this appeal)
30 May - Judge meets counsel in chambers and denies Defense a formal hearing as well as any opportunity to put his objection on the record in court with Defendant present
31 May - Judge enters Order on the drug count (the subject of this appeal)
31 May - Defense files motions requesting the sentence be set aside and Defendant sentenced according to the guidelines
22 June - Defense counsel comes to judge with an Order memorializing the 30 May in chambers meeting
22 June - Judge suspends imposition of both sentences for a hearing on Defense’s motion
12 July - A hearing is held on the Defendant’s motions
August - Judge enters a final order denying all Defendant’s motions
The petitioner’s first objection (that there was neither a record of the in chambers meeting on 30 May nor a hearing in the presence of the Defendant) is moot because the judge had the hearing on 12 July.

The second objection (that the judge failed to hear the motion in a timely manner and therefore denied Defendant a record to appeal) is denied because Defendant did not file his motion to suspend, modify, or vacate within 21 days of the sentencing orders. Because the 31 May objection did not seek to establish that he was not guilty or eliminate his sentences (instead just asking for modification) it was not a proper filing. As well, the Defendant received his due process in the hearing held 12 July.

[comment] Where to start? The in chambers hearing: Often judges do this because they are trying to be decent people. They invite the lawyers back so everybody can sit and have some coffee while they discuss the case. Sometimes they are trying to save a lawyer embarrassment because they know the argument is bad and they don’t want to yell at him in front of the audience (yes, in Virginia we still have a sense of propriety). Do judges do this sometimes in order to avoid a record? My sense is generally not. Still, rumor has it that the reason the Legislature mandated transcripts for all criminal hearings is that some judges used to tell the reporter to stop recording. I wasn’t there so I don’t have the flavor of the hearing.

I do have a flavor of the appeal. The judge sentenced harshly but lawfully; there is no grounds to appeal the sentence. This is the sort of sentence which catches everybody flat-footed. The client (going to prison for 11 more years than you told him he probably would) is very justifiably upset and Defense counsel stands in shock. You have to appeal, but on what grounds?

Well, first Counsel tries to set a factual basis for the argument that the judge has sentenced in a manner which is entirely disproportionate to the crime and prior sentences for those similarly situated. He is denied this opportunity; he cannot even get it on the record. So he loses his factual basis for the appeal. Then he tries to get the judge to sign off on an agreed statement of what went on in the in chambers meeting so that he can appeal the fact he cannot get the facts on the record.

At this point, the judge decided to have a hearing but sets it after the date upon which Defendant must note his appeal. Defendant gets his evidence in during that hearing. The question is whether it is part of the trial and the appellate court answers “no.”

In general, I agree with the Appellate court, although this whole thing comes across a little fishy. I’ll bet that judge and counsel never meet in chambers again without a reporter. Still, I cannot point a finger at anyone exactly. The judge may have been in error but even if the petitioner won his procedural point it would go back for a hearing wherein the judge would impose the same sentence. Thereafter, it would come up to the appellate courts which would uphold the sentence as being entirely within the trial court’s valid discretion. It was a desperation appeal without much chance of accomplishing anything. Still, when Client says appeal you must appeal if there are any valid theories.

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