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District court could amend DWI charge

The Supreme Court of Virginia has refused — again — to tie the hands of trial court judges who want to control disposition of criminal charges in some cases.

The latest pronouncement in a string of decisions since the touchstone Hernandez case reinforces the idea that general district judges may modify criminal charges as they see fit, as long they have not already found a defendant guilty of an original charge.

“I think the Supreme Court has armed district court judges to be able to do justice,” said lawyer William W. Tunner of Richmond who represented an Arlington district judge in the case of Kelley v. Stamos (VLW 013-6-010), decided Jan. 10.

Arlington County Commonwealth’s Attorney Theophani K. Stamos asked a circuit court to force the lower court judge to convict a defendant of driving while intoxicated.

The Supreme Court majority never reached the issue of whether Judge Thomas J. Kelley Jr. erred in amending the DWI warrant to reckless driving. The court decided Kelley’s order became final after 21 days, so a later mandate directing a different outcome came too late.

The opinion nevertheless declares it “plainly evident” that judges have the power to amend warrants, even without evident defects in the original charges.

The dispute over the scope of Kelley’s authority arose out of a 2009 DWI charge against Alexander H. Nobles of Arlington. Nobles pled guilty in May 2009 and then appeared again in July. At the July hearing, Kelley continued the case until August 2011 and required Nobles to complete an alcohol safety action program and perform 200 hours of community service.

Apparently satisfied with Nobles’ compliance in 2011, Kelley found Nobles guilty of reckless driving and fined him $250.

It was unclear whether Kelley had ever found Nobles guilty of DWI at the May 2009 hearing. The court paperwork showed a mark in the box for “guilty as charged,” but the mark was scratched through. The only clear disposition was a finding that Nobles was guilty of reckless driving, with the words “reckless driving” supplied by Kelley on the form.

When Kelley denied the prosecution’s motion to reconsider, then-Chief Deputy Commonwealth’s Attorney Stamos asked a circuit judge to order Kelley to sentence Nobles on a charge of DWI.

Last January, the circuit judge agreed, issuing a writ of mandamus directing Kelley to sentence Nobles for DWI within 21 days. When the circuit judge denied Kelley’s motion for reconsideration, Kelley appealed.

The prosecutor had standing to seek a mandamus order, the Supreme Court held, before turning to the issue of Kelley’s power to convict Nobles. Stamos argued Kelley lacked the authority to convict the defendant of a crime he was not charged with that was not a lesser offense included in the original charge.

Such procedure was a matter of routine Virginia practice, according to the opinion written by Justice Donald W. Lemons. “We are aware that warrants are routinely amended, particularly in the general district courts,” Lemons wrote.

The court majority relied on Va. Code § 16.1-129.2 that “clearly demonstrates that the power to amend warrants and even issue a new warrant is vested in the general district court judge.”

The majority rejected the suggestion that Nobles’ guilty plea was ever clearly accepted by the judge. “If Judge Kelley never found Nobles guilty of DWI, Judge Kelley retained the authority to amend the warrant as provided in Code § 16.1-129.2,” Lemons wrote.

Despite the court’s broad endorsement of judicial authority, the appeal turned on a finer point. The Supreme Court held that Kelley’s finding of guilt on reckless driving, with the resulting fine, became final after 21 days. The circuit court order came too late to undo the outcome.

The court said mandamus is never a proper remedy to undo a prior court action, as it applies prospectively only. The Supreme Court reversed the circuit court order and dismissed the prosecutor’s petition.

Justice Elizabeth A. McClanahan dissented, making a separation of powers argument. “Commonwealth’s Attorneys, not courts, are vested with the discretion to charge under applicable criminal statutes,” she wrote.

“I would remand this case and instruct the circuit court to issue a writ of mandamus directing Judge Kelley to rule upon the charge of driving while intoxicated … and to impose sentencing as required by law,” McClanahan said.

Asked to comment, Stamos said she agreed with McClanahan. “I love the dissent. I think the dissent is brilliant,” she said.

Stamos said it is not uncommon for judges to modify criminal charges as Kelley did. “I think they are common enough that it’s a cause for concern,” she said.

Kelley was represented by Tunner and Robert R. Musick of Richmond. Musick, currently serving as house counsel for a Virginia bank, declined to comment on the Supreme Court decision.

Co-counsel Tunner said even though the case was decided on a “very discrete finding” by the Supreme Court, the decision “should be of comfort to all district court-level judges who should be able to judge, rather than face a situation where they could not change or alter pleas as the facts dictate.”

Falls Church lawyer Jason S. Rucker, who represented Nobles on the DWI – later, reckless driving – charge, declined to comment.

VLW 013-6-010

Virginia Lawyers Weekly
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