No continuance based on COVID-19 order

Where appellant did not comply with any probation conditions and asked for a continuance, the trial court correctly determined that the COVID-19 pandemic had “minimal, if any, impact” on appellant’s failure.

The court correctly considered the judicial order directing courts to “liberally grant” continuances in light of COVID-19 and did not abuse its discretion by denying a continuance and sentencing appellant on the charged offense.

Background

Appellant Barrow was charged with a drug offense but was placed on probation for one year, supervised by the Virginia Alcohol Safety Action Program (VASAP). Barrow failed to comply with any conditions of her probation. At a hearing, Barrow’s counsel asked for a three-month continuance.

Counsel cited Barrow’s “health issues.” Counsel also noted that the VASAP had been closed for periods of time due to the COVID-19 pandemic. She argued that this hampered Barrow’s ability to fulfil her probation requirements.

The trial court replied, “I understand.” The court then denied the continuance, found Barrow guilty of her charged offense and imposed sentence. Barrow appeals.

COVID-19 judicial order

“The judicial order directed trial judges to ‘liberally grant[]’ continuances ‘for any cause resulting from the impact’ of the COVID-19 pandemic. The Supreme Court thereby directed a trial court to consider and give substantial weight to COVID-19 as a factor in determining whether to grant a continuance.

“It also implicitly instructed a trial court to determine whether the requested continuance was, in fact, based on an ‘impact of the ongoing COVID-19 crisis.’ The weight given this impact ‘in view of the circumstances unique to [the] case,’ … and, ultimately, the decision to grant the continuance after consideration of all the factors remained ‘addressed to the sound discretion of the trial court[.]’”

Application

“In that light, we now consider whether Barrow has demonstrated that the trial court abused its discretion in denying her requested continuance. … Barrow argues that the trial court’s denial of the continuance request ‘was an abuse of discretion due to the failure to comply with the judicial order of the Supreme Court instructing liberal grants of continuances for causes resulting from the impact of the COVID-19 crisis.’ We disagree that the trial court failed to comply with the judicial order.

“The judicial order’s instruction that continuances be ‘liberally’ granted did not negate the trial court’s role in determining the impact, if any, of the COVID-19 crisis on Barrow’s request for a continuance.

“Barrow argues that the trial court abused its discretion, however, because it did not consider the factor of the Supreme Court’s directive that continuances be liberally granted for causes impacted by the COVID-19 pandemic.

“The record shows the trial court was aware of the COVID-19 crisis and factored that into its decision. When Barrow stated that VASAP had been closed because of the pandemic, the trial court responded, ‘I understand.’ Nothing in the record suggests that the trial court did not consider the COVID-19 crisis in its determination.

“We cannot say that the trial court erred in concluding that the COVID-19 crisis had minimal, if any, impact on Barrow’s noncompliance. Barrow put forth two excuses for her noncompliance. First, Barrow proffered that she had ‘health issues.’ … At the January show cause hearing, she said she had surgery on December 3, 2019. She provided no evidence that she notified VASAP about her health issues either before or after her surgery.

“Moreover, months before the surgery, Barrow had already been dropped from her intensive education group for excessive absences, had missed two orientations for the community service work, and had failed to pay the agreed VASAP program fees.

“Second, Barrow proffered that ‘due to the period of time that VASAP has been closed she’s been unable to communicate with them and technically then enroll in her classes as well as her community service.’ …

“Barrow conceded that she had not completed any deferral or probation requirement. Barrow provided no evidence she had even contacted VASAP about completion of her probation requirements, either before or after the declaration of a judicial emergency. Moreover, Barrow failed to pay the court costs as required by the deferral order – a requirement that was not affected by a closure of VASAP. …

“The trial court summed up the situation by saying ‘she hasn’t done anything’ toward completing the deferral requirements. The trial court considered the COVID-19 crisis as a factor and then exercised its sound discretion in denying Barrow’s continuance request.”

Affirmed.

Barrow v. Commonwealth, Record No. 0769-20-3, April 27, 2021. CAV (Petty) from the Montgomery County Circuit Court. Naomi R. Huntington for appellant, Sharon M. Carr for appellee. VLW 021-7-050, 7 pp. Published.