Shannon v. Commonwealth (ORDER) ( 2015 )

VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Thursday, the 26th day of
February, 2015.
Danny Patrick Shannon, Appellant,
against Record No. 141455
Commonwealth of Virginia, Appellee.
Upon an appeal from a
judgment rendered by the Court
of Appeals of Virginia.
This is an appeal from an order denying pretrial bail in a
felony case. The circuit court granted bail, but its order was
subsequently vacated by the Court of Appeals. Upon consideration
of the record, briefs, and argument of counsel, the Court is of
opinion that there is no reversible error in the judgment of the
Court of Appeals.
Danny Patrick Shannon was arrested in Fairfax County on
warrants charging him with abduction with intent to defile, sodomy,
and attempted sodomy. At a preliminary hearing on August 19, 2014,
the general district court found probable cause to refer the
charges to the grand jury and admitted Shannon to bail. The next
day, the Commonwealth appealed the bail decision to the Circuit
Court of Fairfax County. Following oral arguments on August 21 and
22, 2014, the circuit court by an order entered on August 22, 2014,
admitted Shannon to bail pending trial, setting his bond at $60,000
cash or corporate surety on condition that he have no contact with
the victim and remain on a supervised release program.
The Commonwealth appealed the bail decision to the Court of
Appeals which, by a brief per curiam order entered September 16,
2014, found that Shannon had failed to rebut the statutory
presumption against bail in the circumstances of the case, revoked
the circuit court's order setting bond, and ordered Shannon's
incarceration pending trial. We awarded Shannon an appeal with
expedited review pursuant to Rule 5:18(d).
Shannon's single assignment of error contends that the Court
of Appeals erred by "misapplying the standard of review and finding
the rebuttable presumption against bail had not been rebutted based
on the record." Rule 5A:2(b) expressly provides that an order
setting or denying bail shall be reviewable by the Court of Appeals
"for abuse of discretion." *
The dispositive sentence of the Court of Appeals' order is
succinct:
Upon consideration of the motions, briefs,
exhibits, and record, and applying the requisite
standard of review, the Court finds that the
respondent failed to rebut the statutory
presumption against bail under the circumstances
presented.
*
There is no corresponding rule regarding review of a bail
decision in this Court, but our review of the question whether the
Court of Appeals has misapplied the Rules of Court necessarily
presents a question of law, which we review de novo. LaCava v.
Commonwealth, 283 Va. 465, 470, 722 S.E.2d 838, 840 (2012); Brown
v. Commonwealth, 279 Va. 210, 217, 688 S.E.2d 185, 189 (2010).
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This appeal does not require us to make an independent
determination whether the circuit court abused its discretion in
admitting Shannon to bail. Rather, we must decide whether the
Court of Appeals erred in its appellate review of that decision.
We examine the record with which the Court of Appeals was
confronted to ascertain whether the conclusion it reached had
factual and legal support.
Because the Court of Appeals' statement that it had applied
the "requisite standard of review" is conclusory, and is coupled
with a statement of "findings," we are unable to determine whether
the Court of Appeals used the proper standard. Assuming, without
deciding, that the Court of Appeals applied an incorrect standard
of review, we examine the record made in the circuit court to
determine whether it supports the conclusion reached by the Court
of Appeals.
Forcible sodomy and abduction with intent to defile are both
felonies punishable by possible life sentences. For that reason, a
presumption against bail applies to those charges by virtue of Code
§ 19.2-120(B)(2). In addition, all three charges involve "acts of
violence," to which the same statute provides a presumption against
bail. Code § 19.2-120(B)(1); Code § 19.2-297.1 (defining "act of
violence").
The case was submitted to the circuit court at the bond
hearing entirely on the proffers of counsel as to the evidence they
would present, supplemented by certain exhibits. Proffers
represented that Shannon was a retired man, 64 years old, who lived
in a condominium development in Fairfax County. The victim, a
woman 79 years of age, was a neighbor in the same development. The
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two were acquaintances and had visited each other's homes on prior
occasions. On July 27, 2014, the victim visited Shannon at his
home for the purpose of watching television. During the visit, the
victim experienced an attack of vertigo. Shannon told her he was a
doctor and attempted to take her blood pressure. The victim
resisted Shannon's efforts, but he persisted and became angry at
her continued refusal. Shannon then threw her onto a bed, removed
her clothing and forcibly tied her wrists and ankles to the bed.
She tried to scream, but he tied a scarf around her mouth to muffle
her outcries. He attached nipple clamps to both of her breasts.
He informed her that they were going to have sex and attempted anal
intercourse, but was unable to complete the act. He then untied
her, turned her over, attached her hands to a "some type of
handcuff device" and forced fellatio upon her, but again found
himself unable to complete the act. Frustrated, he allowed the
victim to leave. Later, the police took photographs of bruises on
the victim's wrists and arms and reported finding bruises on both
breasts consistent with the use of nipple clamps.
The Commonwealth informed the court that Shannon was a
registered sex offender in Virginia as a result of two convictions
in Colorado in 1998: "unlawful sexual contact with a minor" and
"sexual assault on a child by one in trust." In rebuttal, defense
counsel proffered that Shannon had lived in the Fairfax area for
about ten years and in his present home for more than five years
without any police record or complaints in his condominium
community. He remained at home, living on a modest retirement
income, and could not afford extensive travel. Shannon denied that
he had committed any offense.
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The Sexual Offender and Crimes Against Minors Registry Act,
Code § 9.1-900 et seq., requires any person convicted after July 1,
1994 of a sexual offense as described in Code § 9.1-902 in the
courts of the United States or any of its political subdivisions to
register as a sex offender in Virginia. Code § 9.1-901. Those
convicted of violent sex offenses must remain on the registry for
life. Code § 9.1-908. The purpose of the Act is stated in its
opening section. It is not to further punish or stigmatize the
offender, but rather to "assist . . . law-enforcement agencies and
others to protect their communities and families from repeat sex
offenders." Code § 9.1-900. That purpose evinces clear
recognition by the General Assembly of the unfortunate tendency of
many sex offenders to recidivate, even long after release from
incarceration. That purpose would be nullified if a defendant's
presence on the sex offender registry were not given great weight
in deciding whether he should be released into the community when
he appears in court charged with a new sex offense, especially one
characterized by violence.
The only explanation given of its ruling by the circuit court,
after hearing the proffers of counsel, was: "Under the
circumstances of this case[,] bond will be set at $60,000 cash or
corporate surety." By Code § 19.2-124, the General Assembly has
provided three tiers of appeals, free of filing or service fees,
from decisions granting or denying bail: to the circuit court, to
the Court of Appeals and to this Court. Our Rule 5:18(d) provides
for expedited review. That appellate framework exists because of
the vital and urgent importance of bail decisions to the liberty
interests of the accused as well as to the safety of the public.
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The important public policy underlying that appellate
framework would be entirely nullified if the courts called upon to
review bail decisions were bound to find no abuse of discretion
where the court making the decision had merely rested its ruling on
the "circumstances of the case" or some similar conclusory and
uninformative formula. If such were the law, all appeals from bail
decisions so expressed would be futile.
There is no general requirement that trial courts must state
for the record the reasons underlying their decisions.
Nevertheless, in light of the public policy underlying the laws
providing for prompt and meaningful review of bail decisions, a
court making such a decision has a duty to articulate the basis of
its ruling sufficiently to enable a reviewing court to make an
objective determination that the court below has not abused its
discretion.
In Lawlor v. Commonwealth, 285 Va. 187, 213, 738 S.E.2d 847,
861 (2013), we reiterated that there are three principal ways by
which a court abuses its discretion. The first of these is "when a
relevant factor that should have been given significant weight is
not considered." Id. (citations and internal quotation marks
omitted). It was impossible for the Court of Appeals to determine
from the circuit court's ruling what, if any, consideration or
weight the circuit court might have given to the statutory
presumption against bail, the effect of Shannon's presence on the
sex offender registry, and his pending charges involving a repeat
sexual offense involving violence. Therefore, the Court of Appeals
was required to look to the record made in the circuit court to
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ascertain whether the conclusion the circuit court reached had
factual support.
We cannot, on this record, find that the Court of Appeals
erred in reaching the conclusion, necessarily implicit in its
holding, that the circuit court abused its discretion by not
considering a relevant factor which should have been given
substantial weight, specifically, Shannon's status as a registered
sex offender. We therefore conclude that the Court of Appeals
reached the correct result. Accordingly, the order appealed from
is affirmed. The appellant shall pay to the Commonwealth of
Virginia two hundred and fifty dollars damages.
This order shall be certified to the Court of Appeals of
Virginia and to the Circuit Court of Fairfax County and shall be
published in the Virginia Reports.
_______________
JUSTICE McCLANAHAN, concurring.
I agree with the majority's holding in this case. I write
separately because I disagree that we should, by virtue of dicta and
based on a "public policy," attempt to change the general rule that
a trial court is not required to recite for the record the reasons
underlying its rulings. Fitzgerald v. Commonwealth, 223 Va. 615,
627, 292 S.E.2d 798, 805 (1982)("Absent a statutory mandate . . . a
trial court is not required to give findings of fact and conclusions
of law."); see, generally, Freeman v. Peyton, 207 Va. 194, 196, 148
S.E.2d 795, 797 (1966); see also Findlay v. Commonwealth, 287 Va.
111, 116, 752 S.E.2d 868, 872 (2014).
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If a "duty" should be imposed on a trial court to recite its
underlying reasoning on the record, such a requirement, as an
exception to the general rule, should be imposed and designed by the
legislature, not this Court. See, e.g., Code § 20-08.1(B)(requiring
courts to recite the underlying reasons for certain rulings in the
context of domestic relations support determinations); see also Code
§ 8.01-654(B)(5) (requiring courts to articulate both findings of
fact and conclusions of law in habeas proceedings, to be made part
of the record and transcribed).
A Copy,
Teste:
Patricia L. Harrington, Clerk
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