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Bail pending appeal properly denied

Where a three-judge panel of the Court of Appeals concluded that the trial court erred by denying appellant post-conviction bail, the panel is reversed by a published order upon a hearing en banc.

The trial judge’s decision to deny post-conviction bail “was not unreasonable.”


Appellant Jeffrey was convicted of two counts of felony obtaining money by false pretenses and pleaded no contest to felony embezzlement. After denying his motion to withdraw his plea, “the trial court sentenced Jeffrey to eight years’ imprisonment, suspending all but two years and six months.”

During the hearing, “the Commonwealth asserted that Jeffrey expressed no remorse for his actions, because he exploited funds earmarked to uplift Roanoke citizens after the devastation of COVID-19 for his personal gain and brazenly used these public benefits to maintain his lavish lifestyle through weekend trips, cash payments to women, and shopping excursions.

“Defense counsel highlighted Jeffrey’s positive factors, including his history of devotion to public service and the minority community and his local spirit as a Roanoke native.”

After imposing sentence and “in response to his request for probation, the trial court made the following comment: ‘And there was some mention of Mr. Jeffrey being remanded to custody following his conviction.

“‘It is the practice of this Court, in every single case, in which an individual in this community has been convicted of a felony crime to be remanded to custody; no matter who he is, she is, what color, race, sex, or gender.

“‘If you’ve been convicted of a felony, you’re going to jail that day and I have done that every single time.’

“Jeffrey informed the court that he would be filing a notice of appeal and sought release on bail, pending his appeal of the convictions. …

“In support of bail, Jeffrey noted that he was fifty-three years old, had no prior criminal record, suffered from stage four kidney disease requiring weekly dialysis, and had personal ties to Roanoke.

“The Commonwealth opposed the motion for bail, arguing that Jeffrey was a ‘financial predator’ who preyed on nonprofit organizations and the City of Roanoke, and a three-time convicted felon, who would ‘endanger the community at large.’

“After considering all arguments, the trial court denied Jeffrey’s bail request, noting that he no longer enjoyed the presumption of innocence, that he had three felony convictions, that his actions were egregious, and that his likelihood of success on appeal were ‘in the court’s estimation, zero.’

“Jeffrey appealed the decision to deny him post-conviction bail.”


Code § 19.2-319 “contemplates that the trial court’s grant of post-conviction bail ‘will be exercised with a reasonable discretion, and unless it appears to an appellate court that such discretion has been abused, the appellate court should not disturb the action of the trial court.’ …

“The record reveals that the trial court considered Jeffrey’s dangerousness to the public, his three felony convictions, and the nature of his crime. While reasonable minds may differ about the degree to which he may be a danger to the public if released, the trial judge’s rationale was not unreasonable. …

“The trial court considered ‘[t]he nature and circumstances of the offense, the fact of conviction, and the quantum of punishment assessed.’ Specifically, it noted the nature of his offense – embezzlement – and the circumstances of his offense – ‘breach[ing] [the] public trust’ and violating his duties to the benefactors of nonprofit services.

“The trial court also considered Jeffrey’s loss of the presumption of innocence. Finally, the trial court considered the quantum of punishment assessed for his three felony convictions and found that Jeffrey was a ‘danger to the community,’ despite Jeffrey’s contention to the contrary.”

The trial court also considered Jeffrey’s likelihood of success on appeal. “Today, we hold that a trial court can consider its own assessment of a criminal defendant’s likelihood of success on appeal when granting or denying post-conviction bail[.] …

“The likelihood of success on appeal helps measure three essential questions relevant to granting bail: (1) whether a defendant will appear at further proceedings, (2) whether the defendant represents an unreasonable danger to himself and to the public, and (3) whether there is a risk of irreparable injury to the defendant. …

“Meritorious appeals necessarily create motivation to appear at future proceedings. Depending on the reason for the appeal, a meritorious appeal may also imply that a defendant is not an unreasonable danger to himself or the public.

“Moreover, if a defendant seeks bail for an appeal that wholly lacks merit, this may be a sign that the defendant is motivated by ulterior motives, like evading the sentence he already received.

“The possibility of release on bail pending appeal protects against the risk that a defendant will be irreparably injured by imprisonment if his conviction is ultimately reversed. If the defendant’s conviction is not reversed, no injury has occurred.

“A defendant’s likelihood of success on appeal, therefore, is a relevant factor to consider in determining whether a defendant should be released on bail pending appeal because it speaks directly to the risk of irreparable injury.

“If the appeal lacks merit, then the risk of injury is minimal, and there is less justification to grant bail. …

“[T]he circuit court appropriately considered Jeffrey’s likelihood of success on appeal, which the trial court explained was likely ‘zero.’

“The trial judge relied on his extensive knowledge of the record, having presided over both trials and Jeffrey’s motion to withdraw the no-contest plea.

“His assessment of the merits of Jeffrey’s appeal was grounded in his observation of: (1) Jeffrey’s minimal objections throughout trial, (2) Jeffrey’s failure to articulate the grounds for his appeal, and (3) Jeffrey’s no-contest plea and the trial judge’s denial of the subsequent attempt to withdraw his plea.

“Given these factors, the trial court’s assessment of Jeffrey’s likelihood of success on appeal, and its reliance on that assessment, was not an abuse of discretion.”


Jeffrey Jr. v. Commonwealth, Record No. 1257-22-3, March 14, 2023. CAV (published order) Upon Hearing En Banc. From the Circuit Court of the City of Roanoke. VLW 023-7-107, 15 pp.

VLW 023-7-107