THE CIRCUIT COURT OF PAGE COUNTY Clarke A. Ritchie, Judge.
Richard G. Morgan for appellant.
J. Campbell, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Present: Judges Humphreys, Decker and Russell Argued at
G. RUSSELL, JR. JUDGE.
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.
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.
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.
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.
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.
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.
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."
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.
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 §
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 ...