Anthony Wayne Ross v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: March 13, 2001
• Docket: 1581003
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bumgardner, Humphreys and Agee Argued at Salem, Virginia

ANTHONY WAYNE ROSS MEMORANDUM OPINION * BY v. Record No. 1581-00-3 JUDGE G. STEVEN AGEE MARCH 13, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE James F. Ingram, Judge

Joseph R. Winston, Special Appellate Counsel (Public Defender Commission, on brief), for appellant.

(Mark L. Earley, Attorney General; Richard B. Smith, Senior Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.

Anthony Wayne Ross (appellant) was convicted of two counts

of distribution of cocaine in a bench trial; he was sentenced on

March 3, 2000, to serve a total of twenty years in prison, with

four years suspended, and to pay a fine of $1,000. On May 31,

2000, Ross moved the circuit court to set bail pending his

appeal. The court denied bond, and Ross appeals that denial to

this Court. He alleges that the judge implied at the hearing

his ruling would be based on his determination that it would not

be in Ross' best interest to be free and, therefore, the denial

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. was an abuse of discretion. For the reasons set forth below, we

affirm the trial court's decision.

I.

BACKGROUND

On the motion to set bail, the appellant's wife testified

that Ross was born and raised in Danville and has extensive

family in the area. Mrs. Ross testified that while out on bond,

the appellant would reside with her in their Danville home. The

trial court also heard that Ross had two crushed wrists for

which he required surgery and a crushed foot for which he was

undergoing treatment. Ross said that upon being released on

bond he would undergo the requisite surgery and treatment. At

the hearing the trial court stated that it did not consider Ross

a flight risk.

To be weighed against the family and health factors was the

court's knowledge of the appellant's extensive criminal history.

Ross had been convicted of several felonies: shooting into an

occupied vehicle in 1991 and possession of cocaine in 1993, 1994

and 1999. Ross had also been convicted of numerous

misdemeanors. On May 31, 2000 the trial court entered its order

denying the appellant's release on bail pending appeal "for the

following reasons: (1) Due to the circumstances and nature of

the offenses and (2) The defendant's prior record."

- 2 - II.

ANALYSIS

Code § 19.2-319 . . . grants the trial court discretion in felony cases whether to admit a convicted defendant to bail pending appeal. This power to grant bail contemplates that it 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.

Commonwealth v. Smith, 230 Va. 354, 362, 337 S.E.2d 278, 282-83

(1985) (citation omitted). A trial judge may consider

the evidence and the total record, including factors such as "[t]he nature and circumstance of the offense, the fact of conviction, the quantum of punishment assessed, defendant's . . . employment [status], defendant's record of escape[, if any], . . . defendant's . . . propensity for violence[, if any,] . . . age of the defendant, his health, his ties to the community, . . . and other factors relevant to whether the defendant will appear when required to do so and whether the defendant's liberty represents an unreasonable danger to himself and the public.

Dowell v. Commonwealth, 6 Va. App. 225, 229, 367 S.E.2d 742, 744

(1988) (citations omitted).

While the trial court stated that it had no concern about

the appellant's future appearances, it was charged with also

making a determination as to whether the appellant posed a

danger to himself or the public. In making such a

determination, the trial court may consider the appellant's

- 3 - medical condition and weigh those issues against the other

factors such as the nature and circumstances of the crimes the

appellant committed (distribution of cocaine, subsequent

offenses), the appellant's extensive criminal record and

propensity to commit additional criminal acts, and the length of

incarceration imposed.

The trial court determined that an appeal bond should be

denied due to the nature and circumstances of the offenses and

the appellant's prior criminal history, as expressly stated in

its order of May 31, 2000. A trial court speaks only through

its written orders. McBride v. Commonwealth, 24 Va. App. 30,

35, 480 S.E.2d 126, 128 (1997). Such factors, as cited in the

trial court's order, bear on the question of whether the

appellant posed a danger to himself or the public. Therefore,

the trial court did not abuse its discretion by denying the

appellant's motion for an appeal bond.

Accordingly the decision of the trial court is affirmed.

Affirmed.

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