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No Bail for Sex Offender Upheld

The Supreme Court of Virginia upholds a Court of Appeals decision vacating a circuit court’s grant of pretrial bail to a registered sex offender charged with abduction with intent to defile, sodomy and attempted sodomy.

The Court of Appeals entered an order stating defendant had failed to rebut the statutory presumption against bail in the circumstances of this case, and revoked the order setting bond at $60,000. On appeal, defendant contends the appellate court erred by “misapplying the standard of review and finding the rebuttable presumption against bail had not been rebutted based on the record.” Rule 5A:2(b) expressly provides that an order setting or denying bail shall be reviewable by the Court of Appeals “for abuse of discretion.”

The dispositive sentence of the Court of Appeals’ order says that, upon applying the requisite standard of review, the court found the respondent failed to rebut the statutory presumption against bail under the circumstances presented.

This appeal does not require us to make an independent determination whether the circuit court abused its discretion in admitting defendant to bail. Rather, we must determine whether the Court of Appeals erred in its appellate review of that decision.

Because the Court of Appeals’ statement that it had applied the “requisite standard of review” is conclusory, and is coupled with a statement of “findings,” we are unable to determine whether the Court of Appeals used the proper standard. Assuming, without deciding, that it applied an incorrect standard of review, we conclude the record in the circuit court supports the conclusion reached by the Court of Appeals.

Forcible sodomy and abduction with intent to defile are both felonies punishable by possible life sentences. For that reason, a presumption against bail applies by virtue of Va. Code § 19.2-120(B)(2). Also, all three charges involve “acts of violence,” to which the same statute provides a presumption against bail.

The case was submitted to the circuit court at the bond hearing entirely on proffers of counsel. Proffers represented that defendant was a retired man, 64 years old, who lived in a Fairfax condominium development. The victim was a 79-year-old woman who lived in the same development. According to the victim, she visited defendant’s home to watch television, and when she suffered an attack of vertigo, he threw her onto a bed, removed her clothing, tied her up and forced sexual contact. Police photographs of her bruises were consistent with her account of the assault. The commonwealth informed the court that defendant was a registered sex offender in Virginia as a result of two convictions in Colorado in 1998.

Defendant denied that he had committed any offense. Defense counsel proffered that defendant had been living in the Fairfax area for about 10 years and in his present home for more than five years, without any police record or complaints in his community, and he could not afford extensive travel.

The only explanation the circuit court gave for its ruling was: Under the circumstances of this case, bond was to be set at $60,000. There is no general requirement that trial courts must state for the record the reasons underlying their decisions. Nevertheless, in light of the public policy underlying the laws providing for prompt and meaningful review of bail decisions, a court making such a decision has a duty to articulate the basis of its ruling sufficiently to enable a reviewing court to make an objective determination that the court below has not abused its discretion.

We cannot, on this record, find that the Court of Appeals erred in reaching the conclusion, necessarily implicit in hits holding, that the circuit court abused its discretion by not considering a relevant factor which should have been given substantial weight, namely, defendant’s status as a registered sex offender. We conclude the Court of Appeals reached the correct result.


McClanahan, J.: I agree with the majority’s holding. I write separately because I disagree that we should, by virtue of dicta and based on a “public policy,” attempt to change the general rule that a trial court is not required to recite for the record the reasons underlying its rulings. If such a “duty” should be imposed on a trial court, it should be imposed by the legislature, not this court.

Shannon v. Commonwealth, No. 141455, Feb. 26, 2015. VLW 015-6-018, 8 pp.

VLW 015-6-018

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