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Merritt v. Commonwealth

Court of Appeals of Virginia

November 13, 2018

ALISHA RENEE MERRITT
v.
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF PAGE COUNTY Clarke A. Ritchie, Judge.

          Richard G. Morgan for appellant.

          Aaron J. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Humphreys, Decker and Russell Argued at Arlington, Virginia

          OPINION

          WESLEY G. RUSSELL, JR. JUDGE.

         Alisha Renee Merritt was convicted of failure to appear in violation of Code § 19.2-128. As she did in the trial court, she argues on appeal that the evidence was insufficient to support her conviction. Specifically, she argues that the evidence did not establish that she had notice of her need to appear, and therefore, the evidence did not establish that her failure to appear was willful as required by the statute. We conclude that, for reasons not argued by Merritt, no violation of Code § 19.2-128 occurred. Finding that the ends of justice exception of Rule 5A:18 applies to these circumstances, we reverse the judgment of the trial court and enter final judgment for Merritt regarding her alleged failure to appear in violation of Code § 19.2-128.

         BACKGROUND

         In February 2009, Merritt was convicted of one count of misdemeanor fraudulent conversion. Part of her sentence for that offense was suspended, conditioned on her payment of restitution, fines, and costs. Merritt was placed on a payment plan. She made periodic payments over time; however, she made no payments between July 2016 and August 2017.

         In April of 2017, as a result of the failure of Merritt to make periodic payments as required, the Commonwealth initiated a revocation proceeding. The trial court issued a show cause on April 12, 2017, with a return date set for April 19, 2017.

         When Merritt did not appear on April 19, 2017, the trial court noted that there was no return of service indicating that Merritt had been served with the show cause. The trial court then reset the hearing for May 31, 2017.

         Merritt did not appear at the May 31, 2017 hearing. At that time, the trial court noted that the return of service indicated that she had been served with the show cause by posting. Finding that constituted sufficient service, the trial court issued a capias for her arrest, and Merritt subsequently was arrested.

         The trial court held a hearing on July 24, 2017 regarding both the revocation proceeding related to the failure to pay restitution, fines, and costs and the failure to appear at the May 31, 2017 hearing. Merritt indicated that she had moved, and thus, had never received notice of the May 31, 2017 hearing. She also requested that the trial court appoint her counsel. Finding it appropriate to do so, the trial court appointed counsel for Merritt and the matter was continued.

         Ultimately, the matter was heard on September 13, 2017 "for a full hearing on allegations of failure to pay restitution and for a failure to appear." With respect to the failure to appear, defense counsel asked Merritt, "Can you tell us where you were on May 31st?" Merritt responded, "Taking care of my kids and family. . . . I lost all my calendar dates and I didn't have any dates. I had no notice of this [c]ourt date at all. I did not receive any notice of this [c]ourt date."

         Merritt argued that the trial court should accept her testimony that she never received notice of the May 31, 2017 hearing, and therefore, could not be guilty of willfully failing to appear as is required to sustain a conviction under Code § 19.2-128. At no point in the trial court did Merritt argue that a revocation proceeding could not serve as the predicate for a prosecution under Code § 19.2-128.

         The trial court implicitly rejected Merritt's testimony regarding notice. As a result, the trial court found her guilty of failure to appear in violation of Code § 19.2-128(C).[1]

         Merritt filed a petition for appeal with this Court. She did not challenge the applicability of Code § 19.2-128 to revocation proceedings; rather, she again argued that there was insufficient evidence to show she had notice of the May 31, 2017 hearing, and ...


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