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Davis v. Commonwealth

Court of Appeals of Virginia

October 8, 2019

RYAN ONEAL DAVIS
v.
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF SUSSEX COUNTY Robert G. O'Hara, Jr., Judge Designate

          Jessica V. Bailey (Jessica B. Mauger, Attorney at Law, on brief), for appellant.

          Craig 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 Richmond, Virginia

          OPINION

          GLEN A. HUFF JUDGE

         Ryan 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 prosecutorial vindictiveness.
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.

         Appellant's 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.

         I. BACKGROUND

         "This 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:

         In 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."

         In 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).

         In 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.[1] 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 conviction.

         The 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.

         He continued by noting that it was hardly uncommon for a judge to see the same defendant multiple times and that he had rarely ...


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