COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Alston and Huff
UNPUBLISHED
Argued at Chesapeake, Virginia
CLYDE MARIO HALL
MEMORANDUM OPINION* BY
v. Record No. 1664-12-1 JUDGE ROSSIE D. ALSTON, JR.
AUGUST 13, 2013
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Wilford Taylor, Jr., Judge
Ryan Ruzic (John E. Robins, Jr., Deputy Public Defender;
Hampton Public Defender’s Office, on brief), for appellant.
John W. Blanton, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Clyde Mario Hall (appellant) appeals the disposition of his probation revocation hearing.
He contends that the trial court erred when it considered his counsel’s request for a continuance
as conclusive evidence that appellant violated the terms and conditions of his probation.
Appellant also alleges that the trial court’s finding that he violated the terms and conditions of
his probation is not supported by evidence adduced at trial. For the reasons that follow, we
affirm the trial court’s ruling.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND1
“On appeal, we review the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible therefrom.” Martin v. Commonwealth, 4
Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
So viewed, the evidence shows that on June 17, 2008, appellant was convicted of
possession of cocaine with the intent to distribute, in violation of Code § 18.2-248, and
possession of ecstasy, in violation of Code § 18.2-250, and sentenced to a total of thirteen years’
imprisonment, with all but two months of the sentence suspended on the two convictions.
Following completion of his two-month term of imprisonment, appellant was placed on
probation.
On February 24, 2012, the Circuit Court of the City of Hampton issued a rule to show
cause and a capias for appellant’s arrest, alleging that appellant had violated the terms and
conditions of his probation, based on new convictions stemming from appellant’s criminal
behavior in the City of Newport News.
On August 28, 2012, the trial court held appellant’s revocation hearing. At the outset of
that hearing, appellant’s counsel requested a continuance. He stated that “[t]he revocation is
based on . . . convictions out of the City of Newport News,” which appellant was appealing to
the Court of Appeals, and requested that the trial court continue the revocation hearing until the
Court of Appeals addressed appellant’s appeal of the underlying convictions. According to
appellant’s counsel, holding the revocation hearing while appellant’s appeal was pending placed
appellant in a disadvantageous position:
1
As the parties are fully conversant with the record in this case and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this
appeal.
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[I]f [the revocation hearing is held] today and those convictions are
reversed then [appellant] is stuck . . . with the decision of this
Court and the only way he gets [to appeal this revocation matter] is
a habeas petition so consequently, if the Court pleases, I’m going
to ask for the Court to continue the case.
Appellant’s counsel argued that a continuance would prevent such a “dilemma” without posing
any threat to the Commonwealth’s case: “[Appellant] is not going anywhere. He’s got a total of
. . . [twenty-five] years to serve on the [Newport News] convictions.”
The Commonwealth objected to appellant’s request for a continuance, arguing that the
revocation hearing was based on the new charges against appellant in Newport News, not
appellant’s subsequent convictions. Thus, the Commonwealth argued, the outcome, whatever it
may be, of appellant’s appeal before the Court of Appeals was irrelevant to appellant’s
revocation hearing.
The trial court denied appellant’s motion:
[Appellant] has been charged with a violation of having been
convicted of a law – violation of his probation and if the trial
[j]udge has already resolved that then that’s the basis for the
probation violation. I can’t be concerned about what may or may
not happen on appeal for that conviction.
Appellant asked the trial court to note his objection to the trial court’s ruling. Appellant
asserted that “if the convictions from Newport News are overturned on appeal . . . [and
appellant] is found to be in violation today” then appellant was limited to challenging the trial
court’s denial of his motion for a continuance or filing for habeas corpus review.
Following the trial court’s ruling on the motion to continue, the Commonwealth informed
the trial court that it had failed to obtain appellant’s certified conviction orders from Newport
News. Notwithstanding that failure, the Commonwealth argued that the hearing should proceed
because appellant stipulated to the Newport News convictions during his request for a
continuance. The Commonwealth also produced a copy of the Court of Appeals’ docket that
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showed appellant’s petition for appeal was received by the Court. The Commonwealth argued
that that document combined with counsel’s statement that appellant’s Newport News
convictions were on appeal to the Court of Appeals were “adequate evidence [appellant] was
convicted.”
Appellant then reiterated his request for a continuance, which the trial court again denied.
The trial court also found that appellant had stipulated to his Newport News convictions, stating
for the record as follows:
[Appellant’s counsel] did indicate that [appellant] was convicted.
That’s on the record. There is no – and there was no challenge to
that. The only issue you wanted continued to see what the
outcome of the Court of Appeals would be. I don’t think that’s a
basis for continuing a case. That’s – I just don’t think that is a
basis. I have to base it on the most recent conviction and you
stipulated that there was a conviction.
Counsel for appellant took exception to the trial court’s ruling and denied stipulating to the
Newport News convictions, characterizing his statements as an argument.
Following this ruling, neither party submitted evidence pertaining to appellant’s Newport
News convictions, and the trial court then proceeded to argument regarding what portion of
appellant’s suspended sentences to revoke. “Without conceding the issue,” appellant’s counsel
stated that “[appellant] has an active sentence of [twenty-three] years from Newport News,” and
requested that the trial court re-suspend the entirety of appellant’s suspended sentences. The trial
court revoked one year of appellant’s suspended sentence for possession of ecstasy and ordered
appellant to serve that time in addition to his sentence from Newport News. The trial court then
re-suspended the remainder of appellant’s sentence.2
This appeal followed.
2
At some point following appellant’s revocation hearing, appellant’s certified conviction
orders from Newport News were included in the record and designated as Commonwealth’s
Exhibit 1. Appellant argues that “the record . . . is silent as to how [his] certified conviction
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ANALYSIS
The trial court found that appellant violated the terms and conditions of his probation
because counsel for appellant stipulated that appellant was convicted of offenses in Newport
News. On that basis, the trial court revoked appellant’s suspended sentence for possession of
ecstasy and sentenced appellant to serve one year in prison. Appellant challenges the trial
court’s holding, alleging that his attorney did not stipulate to appellant’s Newport News
convictions and that the evidence did not support the trial court’s finding that appellant violated
the terms and conditions of his probation. We disagree.
While an attorney’s statements generally are not considered evidence of a fact in dispute,
see generally Goin v. Commonwealth, 182 Va. 307, 28 S.E.2d 631 (1944), a party can concede a
fact, see Cofield v. Nuckles, 239 Va. 186, 194, 387 S.E.2d 493, 498 (1990), and so, too, can a
party’s attorney, see In re McNallen, 62 F.3d 619, 624 (4th Cir. 1995) (“We conclude, however,
that McNallen procedurally defaulted in raising the issue of willfulness because his trial counsel
conceded the issue of willfulness before the bankruptcy court: ‘I certainly don’t dispute that
[McNallen’s] actions were willful.’”); see also Clary v. Commonwealth, No. 3010-00-2, 2002
Va. App. LEXIS 324, *4-5 (Va. Ct. App. May 28, 2002) (holding that defendant’s “attorney’s
statement at trial that ‘you have a check that’s stolen between 5/11 and 5/22’ establishe[d] that
fact on appeal”).3
Here, counsel for appellant conceded that appellant was convicted for offenses committed
in Newport News by making a judicial admission of that fact during his request for a
orders were placed into the Circuit Court,” and he requests that this Court strike the certified
conviction orders from the record. Because we find, as explained below, that the trial court had
conclusive proof that appellant violated the terms and conditions of his probation based
exclusively on appellant’s counsel’s statements before the trial court, we consider this issue
moot.
3
Although not binding precedent, unpublished opinions can be cited and considered for
their persuasive value. Rule 5A:1(f).
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continuance. Crawley v. Ford, 43 Va. App. 308, 316, 597 S.E.2d 264, 268 (2004) (“‘Judicial
admissions are concessions made by a party during the course of litigation which bind the party
and prevent contrary evidence from being introduced.’” (quoting Charles E. Friend, The Law of
Evidence in Virginia, § 18-37, at 839 (6th ed. 2003))). Counsel for appellant acknowledged at
the outset of appellant’s revocation hearing that “[the] revocation is based on . . . [appellant’s]
convictions out of the City of Newport News.” He then requested that the trial court continue
appellant’s revocation hearing in order for appellant to appeal his Newport News convictions to
the Court of Appeals. Those statements were an admission of fact and “conclusively
establish[ed]” appellant’s convictions in Newport News. See General Motors Corp. v. Lupica,
237 Va. 516, 520, 379 S.E.2d 311, 314 (1989) (“The essence of a judicial admission is its
conclusiveness. To constitute a judicial admission, the admission must conclusively establish a
fact in issue.”). Accordingly, because appellant’s counsel conceded that appellant was convicted
for offenses committed in Newport News, the trial court did not err in considering the statements
by appellant’s counsel as conclusive proof that appellant had violated the terms and conditions of
his probation. See Resio v. Commonwealth, 29 Va. App. 616, 622, 513 S.E.2d 892, 895 (1999)
(“Evidence that ‘[a] trier of fact in a criminal proceeding found beyond a reasonable doubt that
[a] defendant violated a state law is sufficient . . . to support’ revocation of a suspended sentence,
notwithstanding the pendency of such conviction on appeal.” (quoting Patterson v.
Commonwealth, 12 Va. App. 1046, 1049, 407 S.E.2d 43, 45 (1991))).
In reaching this conclusion, we give no consideration to the fact that appellant’s counsel
denied “stipulat[ing] to anything” after the trial court had found that he conceded that appellant
was convicted of offenses committed in Newport News. Counsel for appellant conceded the
issue at the moment he admitted appellant’s conviction. Because “the essence of a judicial
admission is its conclusiveness,” a fact once established “may not be thereafter qualified,
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explained, or rebutted.” General Motors Corp., 237 Va. at 520, 379 S.E.2d at 314 (“[O]nce a
fact has been established by a judicial admission, evidence tending to prove the fact admitted
becomes irrelevant.”); see Crawley, 43 Va. App. at 316, 597 S.E.2d at 268 (“‘Judicial admissions
are concessions made by a party during the course of litigation which bind the party and prevent
contrary evidence from being introduced.’” (quoting Friend, supra, § 18-37, at 839)).
Appellant’s denial is, therefore, irrelevant to our consideration of this issue.
Because appellant’s counsel conceded appellant’s Newport News convictions, we find
that the most learned trial judge did not err in considering counsel’s statements as conclusive
proof that appellant had violated the terms and conditions of his probation.
CONCLUSION
For these reasons, we find that the trial court did not err in revoking appellant’s
suspended sentence.
Affirmed.
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