COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Clements and Agee
Argued at Salem, Virginia
REGINALD LEE ALLEN
OPINION BY
v. Record No. 1134-00-3 JUDGE G. STEVEN AGEE
JULY 31, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
Joseph R. Winston, Special Appellate Counsel
(Public Defender Commission, on brief), for
appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.
Reginald Lee Allen (the appellant) was convicted, in a
bench trial, in the Circuit Court for the City of Danville of
fourth offense larceny, a felony, in violation of Code
§ 18.2-104. The appellant was sentenced to serve a term of four
years incarceration on May 1, 2000, with a portion suspended.
The appellant appeals his conviction, averring the circuit court
erred in failing to dismiss his indictment. For the following
reasons, we agree with the appellant and reverse his conviction.
I. BACKGROUND
An arrest warrant was issued on October 21, 1999 against
the appellant for a Class 1 misdemeanor, shoplifting second
offense, by the General District Court for the City of Danville
for the theft of a tool set from Sears & Roebuck, Co., on
October 18, 1999. On December 14, 1999, the appellant waived
his right to counsel, pleaded guilty and was convicted in the
general district court for that charge: second-offense
shoplifting. There was no plea agreement. The general district
court sentenced the appellant to serve a term of two months
incarceration. That same day, the appellant noted his appeal to
the circuit court under Code § 16.1-132 for a de novo trial. On
December 20, 1999, the appellant withdrew his appeal pursuant to
Code § 16.1-133, only to re-file the appeal on December 21,
1999.
The appellant, who was incarcerated in the Danville jail on
other charges, testified that a bailiff escorted him to the
general district court clerk's office on or about December 27,
1999, so he could again withdraw his appeal. The clerk informed
him that his court papers had already been forwarded to the
circuit court. The appellant testified he was then escorted to
the circuit court clerk's office on December 28, 1999, where a
deputy clerk informed him that he could not withdraw his appeal.
The appellant further testified that he again returned to the
circuit court clerk's office on January 4, 2000, and a deputy
clerk informed him again that he could not withdraw his appeal
and showed him a yellow note attached to his papers from the
Commonwealth's attorney. The note instructed the clerk's office
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to not allow withdrawal of the appeal because the Commonwealth
intended to indict the appellant.
A deputy circuit court clerk testified and verified the
note from the Commonwealth's attorney, but could not confirm the
appellant's recitation of the dates he says he appeared to
withdraw his appeal. The appellant presented no other
corroborating evidence.
On January 4, 2000, a Danville circuit court grand jury
indicted the appellant for felonious fourth offense larceny for
the same Sears incident that led to his misdemeanor conviction.
On March 7, 2000, the Commonwealth moved the circuit court to
nolle pros the appellant's misdemeanor warrant pending on appeal
so it could proceed on the felony indictment. In opposition,
the appellant, represented by counsel, moved the circuit court
to dismiss the indictment. The appellant's grounds for
dismissal were that he had withdrawn his appeal to the circuit
court and he should not have been allowed to "re-appeal." The
appellant argued the circuit court lacked jurisdiction once the
first appeal was withdrawn, and the Commonwealth could not
indict for the felony because that action would constitute twice
placing the appellant in jeopardy for the same offense. The
circuit court denied the appellant's motion and proceeded on the
indictment to trial, where the appellant was convicted of the
felony and later sentenced.
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II. ANALYSIS
The appellant, on appeal, contends the circuit court erred
in failing to dismiss the felony indictment. He contends the
Commonwealth denied him his right to withdraw his appeal, which
would have rendered the misdemeanor conviction final and voided
jurisdiction in the circuit court to proceed on the felony
charge. Therefore, he argues, the subsequent felony indictment
and conviction violated the double jeopardy clauses of the
constitutions of the United States and Virginia. The appellant
also makes reference in his brief to a due process deficiency
under Blackledge v. Perry, 417 U.S. 21 (1974), but did not note
that issue in his assignment of error or the question presented.
The appellant does not appear to have made a Blackledge due
process argument in the circuit court, although the phrase "due
process" does appear in the record.
The Commonwealth challenges this appeal on several grounds.
First, the Commonwealth contends the appellant's double jeopardy
claim fails because he did not follow the notice provisions of
Code § 16.1-133 in withdrawing his appeal, and under the theory
that the appeal for a trial de novo under Code § 16.1-132 was in
effect the statutory grant of a new trial, thereby extinguishing
the original misdemeanor conviction. The Commonwealth also
contends the appellant's due process claim is barred by Rule
5A:18; that is, the Commonwealth contends the appellant is
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procedurally barred from raising that argument for the first
time on appeal.
We find this case analogous to, and controlled by, our
decision in Duck v. Commonwealth, 8 Va. App. 567, 383 S.E.2d 746
(1989). Accordingly, we decide this case on the basis of the
due process violation and do not address any other arguments of
the parties. 1
In Cooper v. Commonwealth, 205 Va. 883, 140 S.E.2d 688
(1965), the Supreme Court of Virginia established guidelines for
appellate review of issues not raised before the circuit court:
An appellate court may . . . take cognizance
of errors though not assigned when they
relate to the jurisdiction of the court over
the subject matter, are fundamental, or when
such review is essential to avoid grave
injustice or prevent the denial of essential
rights.
Id. at 889, 140 S.E.2d at 693. The denial of due process
involves the denial of a fundamental constitutional right and
falls within the ambit of Rule 5A:18 to attain the ends of
justice. We consider the issue for that reason because under
the facts and circumstances of this case, it is evident that a
manifest injustice has occurred. Duck, 8 Va. App. at 570-71,
383 S.E.2d at 748. The appellant's "due process right was
violated because the Commonwealth placed a more serious charge
1
Because this case is determined by the application of due
process principles, we do not address the Commonwealth's
argument under Code § 16.1-133 regarding notice of withdrawal of
an appeal.
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against him when he appealed his conviction to the circuit
court." Id. If the appellant had been afforded due process, he
would not have been convicted of the felony offense.
In Blackledge, the defendant was tried and convicted in a
North Carolina district court for the misdemeanor charge of
assault with a deadly weapon. Upon his appeal to the superior
court, where he had a right to a trial de novo, the prosecutor
obtained an indictment charging him with the felony offense of
assault with the intent to kill and inflict serious bodily
injury. The Supreme Court of the United States held:
A prosecutor clearly has a considerable
stake in discouraging convicted
misdemeanants from appealing and thus
obtaining a trial de novo in the Superior
Court, since such an appeal will clearly
require increased expenditures of
prosecutorial resources before the
defendant's conviction becomes final, and
may even result in a formerly convicted
defendant's going free. And, if the
prosecutor has the means readily at hand to
discourage such appeals — by "upping the
ante" through a felony indictment whenever a
convicted misdemeanant pursues his statutory
appellate remedy — the State can insure that
only the most hardy defendants will brave
the hazards of a de novo trial.
* * * * * * *
A person convicted of an offense is entitled
to pursue his statutory right to a trial de
novo, without apprehension that the State
will retaliate by substituting a more
serious charge for the original one, thus
subjecting him to a significantly increased
potential period of incarceration.
* * * * * * *
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We hold, therefore, that it was not
constitutionally permissible for the State
to respond to [the defendant's] invocation
of his statutory right to appeal by bringing
a more serious charge against him prior to
the trial de novo.
Blackledge, 417 U.S. at 27-29 (footnotes omitted).
We applied Blackledge in Duck, where the defendant, Duck,
also failed to raise the due process issue at trial. We applied
the manifest injustice provision of Rule 5A:18 in his case for
the same reasons as noted above.
Duck was originally charged, tried and convicted in general
district court of DUI first offense. He timely noted his appeal
to the circuit court for a trial de novo. Prior to arraignment
in the circuit court, the warrant was amended, over Duck's
objection, to charge DUI second offense, a more serious charge
than the original charge upon which he had been convicted and
was appealing. We found this course of action constitutionally
barred as a due process violation under Blackledge.
In the case before us, Duck was required to
face a more serious charge in the circuit
court as a result of exercising his
statutory right to a trial de novo. On the
charge of DUI (second offense), he faces a
range of incarceration from one to twelve
months. In contrast, in the general
district court on the charge of DUI (first
offense), a jail sentence was not required
upon conviction. Also, in the district
court, the court had the option of imposing
a fine in lieu of a jail sentence. We find
that this difference in penalty range made
the charge "a more serious charge" within
the meaning of Blackledge.
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* * * * * * *
[W]e find that he faced "a more serious
charge" in the circuit court as a direct
result of exercising his statutory right to
a trial de novo. For this reason, his due
process rights were violated and his
conviction must be reversed.
Duck, 8 Va. App. at 572-73, 383 S.E.2d at 749.
The appellant in the case at bar was originally charged and
convicted on a misdemeanor shoplifting charge, for which the
most severe penalty could not have exceeded twelve months
incarceration with a possible fine. While exercising his
statutory right to a trial de novo, by appeal, the appellant was
then indicted, tried and convicted on a more serious charge
(fourth offense larceny, a felony). The felony conviction
carries a possible sanction of one to five years incarceration
and is clearly a more serious charge than the original charge on
appeal for purposes of the Blackledge analysis.
It is inconsequential that the appellant pled guilty,
without any plea agreement with the Commonwealth, to the
misdemeanor charge in the general district court while the
defendants in Blackledge and Duck pled not guilty and were
convicted at trial. The right to appeal for a hearing de novo
in Code § 16.1-132 is an absolute right provided to those
convicted in general district court.
The Commonwealth's reliance on Easter v. Commonwealth, 31
Va. App. 714, 525 S.E.2d 746 (2000), and Peterson v.
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Commonwealth, 5 Va. App. 389, 363 S.E.2d 440 (1991), is not
persuasive. Both cases involved a Blackledge due process claim
where each defendant pled guilty to a lesser-included offense
than that with which he was originally charged in the general
district court. Upon appeal to the circuit court, each
defendant's original charge was reinstated, not a more serious
charge as is the case here. Accordingly, a due process
violation did not occur in those cases, because the defendants
did not face a more serious charge in the circuit court than
they first encountered in the general district court. Here, the
appellant faced a far more serious charge in the circuit court
than he faced in the lower court for the same criminal incident.
Therefore, the Commonwealth's indictment and conviction of
the appellant for the felony offense upon his invocation of Code
§ 16.1-132 was constitutionally impermissible as a violation of
due process. The appellant could only be tried in the circuit
court for the original misdemeanor, and the indictment for the
felony offense should have been dismissed. Due process affords
the appellant the right to a de novo hearing in the circuit
court without having to risk an attempt by the Commonwealth to
convict him of a more serious charge with a greater potential
punishment, for the same criminal incident. The appellant's due
process rights were denied, and for this reason his felony
conviction must be reversed.
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Accordingly the appellant's felony conviction is reversed
and dismissed.
Reversed and dismissed.
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