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Shannon v. Commonwealth

Supreme Court of Virginia

February 26, 2015

Danny Patrick Shannon, Appellant,
v.
Commonwealth of Virginia, Appellee

Upon an appeal from a judgment rendered by the Court of Appeals of Virginia.

OPINION

Page 434

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 [289 Va. 204] 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.

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

Page 435

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" ).

[289 Va. 205] 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 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 ...


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