THE CIRCUIT COURT OF SUSSEX COUNTY Robert G. O'Hara, Jr.,
Jessica V. Bailey (Jessica B. Mauger, Attorney at Law, on
brief), for appellant.
W. Stallard, Assistant Attorney General (Mark R. Herring,
Attorney General; John I. Jones, IV, Assistant Attorney
General, on brief), for appellee.
Present: Chief Judge Decker, Judges Petty and Huff Argued at
A. HUFF JUDGE
Oneal Davis ("appellant") appeals the revocation of
the suspension of his sentences by the Circuit Court of
Sussex County ("trial court"). In 1995, appellant
was convicted of malicious wounding and robbery. The trial
court sentenced him to consecutive terms of twenty years'
imprisonment on each charge, but suspended fourteen years on
each charge. In 2006, appellant committed a murder. He was
tried in 2008 and convicted, but that conviction was later
overturned in a federal habeas corpus proceeding for
ineffective assistance of counsel. See generally Davis v.
Mathena, No. 2:12cv92 (E. D. Va. Mar. 27, 2014). In
2017, appellant was retried and convicted again. In 2018,
after hearing evidence regarding appellant's conduct in
the course of the murder and his conduct in prison since his
original conviction, the trial court revoked the suspension
of appellant's sentences and imposed the entirety of the
twenty-eight years' imprisonment outstanding on
appellant's 1995 robbery and malicious wounding
convictions. Appellant raises four assignments of error:
1. The trial court erred in denying appellant's motion to
recuse the trial judge when the judge's impartiality
could reasonably be questioned because he also presided over
the murder trial where the conduct used to justify the
revocation was heard.
2. The trial court erred in refusing to dismiss the
revocation proceedings when the circumstances justified a
presumption that the proceedings were the result of
3. The trial court erred in denying appellant's motion to
dismiss the revocation related to the malicious wounding
conviction because the revocation proceeding was instituted
beyond the time constraints of Code § 19.2-306(B).
4. The trial court abused its discretion in revoking the
entire suspended sentence because that resulted in an
excessive sentence under the circumstances.
first and fourth assignments of error are not supported with
sufficient argument and authorities and therefore are waived.
Appellant's second assignment of error fails because,
even if the situation warranted a presumption of
vindictiveness, a presumption of vindictiveness is rebuttable
and appellant conceded the prosecutor was not actually
vindictive. Appellant's third assignment of error is
without merit because the trial court reasonably interpreted
its original sentencing orders as suspending the sentences in
the case for the maximum period permitted or allowed by
law-appellant's life. Therefore, this Court affirms.
Court considers 'the evidence presented at trial in the
light most favorable to the Commonwealth, the prevailing
party below.'" Hawkins v. Commonwealth, 64
Va.App. 650, 652 (2015) (quoting Bolden v.
Commonwealth, 275 Va. 144, 148 (2008)). So viewed the
evidence is as follows:
1995, appellant was convicted of malicious wounding and
robbery. On October 4, 1995, in two separate sentencing
orders arising from the same case, the trial court sentenced
appellant to twenty years' imprisonment on each of the
two charges. Each sentencing order suspended fourteen years
of each sentence "upon the condition that [appellant]
keep the peace and be of good behavior for the maximum period
required by law."
2006, appellant murdered Cherri Dowell. S ee
generally Davis v. Commonwealth, No. 0615-17-2 (Va.
Ct. App. July 17, 2018). Appellant was initially convicted of
the murder in 2008. In 2014, the United States District Court
for the Eastern District of Virginia granted appellant's
petition for habeas corpus and ordered a new trial on the
ground that appellant's attorney had been ineffective for
failing to object to appellant being shackled while in the
presence of the jury. Davis v. Mathena, No. 2:12cv92
(E. D. Va. Mar. 27, 2014).
March of 2017, appellant was retried, by a jury, and again
convicted of murder. Although he did not preside over
appellant's first murder trial, Circuit Court Judge
Designate Robert G. O'Hara, Jr. presided over the
retrial. Furthermore, although Judge O'Hara did not
recall it, he had also presided over appellant's initial
trial and sentencing in 1995 for malicious wounding and
robbery. Appellant filed his notice of appeal with the trial
court in the murder case on April 13, 2017. On April 7, 2017,
however, before appellant appealed that case, the
Commonwealth sent a letter to the trial court requesting the
court initiate revocation proceedings based on the new
Commonwealth filed a notice informing the court it intended
to introduce evidence of appellant's conduct surrounding
the murder, including several other unadjudicated crimes
appellant allegedly committed at the time. Appellant then
moved to recuse Judge O'Hara because the Commonwealth
intended to present some of the same evidence it had
presented at appellant's retrial over which Judge
O'Hara had presided. Appellant argued that Judge
O'Hara's familiarity with the evidence allowed his
impartiality to reasonably be questioned. The trial court
denied the motion. Judge O'Hara noted that the jury, not
he, had been the finder of fact in appellant's murder
trial. He stated:
The Court has on occasion recused itself, but it generally
likes to follow a script that we often do when we impanel a
jury and ask myself some of those same questions we ask
jurors. And in doing that, I did not find indication either
from my memory or from the record that suggests that I should
do so here.
continued by noting that it was hardly uncommon for a judge
to see the same defendant multiple times and that he had