PRESENT: All the Justices
JUNIOR JOSEPHSON OPINION BY v. Record No. 230856 JUSTICE STEPHEN R. McCULLOUGH December 12, 2024 COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
The Court of Appeals dismissed Junior Josephson’s appeal under the fugitive
disentitlement doctrine. It held that Josephson forfeited his right to appellate review of his
criminal conviction when he absconded from probation during the pendency of his appeal.
Josephson challenges this dismissal on a number of grounds. For the reasons noted below, we
affirm the judgment of the Court of Appeals.
BACKGROUND
Josephson was convicted of possession of heroin and fentanyl, as well as petit larceny.
He received suspended sentences for the drug offenses and 90 days to serve on the larceny
charge. The sentences were suspended on the condition that Josephson comply with supervised
probation for a period of three years. Josephson noted an appeal to the Court of Appeals. While
the appeal was pending, the Commonwealth filed a motion to dismiss the appeal on the basis that
the fugitive disentitlement doctrine barred Josephson from proceeding. In support of the motion,
the Commonwealth argued that Josephson had previously absconded from probation, and that he
had once again failed to stay in contact with his probation officer. The Commonwealth proffered
that Josephson’s probation officer requested a capias, which the court issued approximately one
month before the Commonwealth filed its motion to dismiss. At the time the Commonwealth filed the motion, the capias remained outstanding. The Commonwealth proffered several
exhibits, including the major violation reports and the capias.
With remarkable speed – just two days after the Commonwealth’s motion to dismiss, and
without awaiting a response from defense counsel – the Court of Appeals dismissed the appeal
on the basis of the fugitive disentitlement doctrine. Counsel for Josephson filed a petition for
rehearing, in which counsel asked the Court of Appeals to reconsider its ruling. Notably, counsel
for Josephson did not aver that Josephson was not, in fact, a fugitive (or that he was no longer a
fugitive). The Court of Appeals denied the petition for rehearing. Josephson then appealed to
this Court.
ANALYSIS
The lone issue before us is whether the Court of Appeals properly applied the fugitive
disentitlement doctrine. We review a lower court’s invocation of the fugitive disentitlement
doctrine “under an abuse of discretion standard.” Sasson v. Shenhar, 276 Va. 611, 627 (2008).
I. AN APPELLATE COURT MAY CONSIDER FACTUAL DEVELOPMENTS THAT BEAR UPON WHETHER THE COURT SHOULD ADJUDICATE A CASE.
As a threshold matter, Josephson contends that the Court of Appeals, exercising its
appellate jurisdiction, could not determine whether he was, in fact, a fugitive. Josephson notes
that factfinding should occur in the trial courts. On that premise, he argues that an appellate
court would be engaging in impermissible factfinding if it were to determine that a litigant is a
fugitive.
We do not quibble with the general proposition that factual development in a case must
occur at trial. In this instance, however, we are faced with an intervening development that
occurred after the trial concluded and while the case was pending on appeal. The question
2 before us is whether that development – Josephson’s flight from justice – could be considered by
the Court of Appeals in determining whether the appeal should be dismissed.
We have previously observed that it is “well settled in this State and elsewhere that an
appellate court may consider matters which have occurred since the entry of the judgment
appealed from to determine whether it will proceed to review the record before it.” Ward v.
Charlton, 177 Va. 101, 107-08 (1941). For example, we are called upon with some frequency to
determine whether a case has become moot while the appeal is pending. See, e.g., Godlove v.
Rothstein, 300 Va. 437 (2022) (case became moot when one of the parties to the dispute sold the
property at issue). In resolving such questions, there may be a need for factfinding – if there is a
genuine factual dispute. That factfinding can be resolved through a remand to the circuit court or
via some other mechanism. See, e.g., Sheehy v. Williams, 299 Va. 274 (2020) (remanding the
case to the circuit court to determine whether the appellant had voluntarily paid the judgment,
which would make the controversy moot). When there is no factual dispute, however, an
appellate court can proceed to determine whether it should adjudicate the appeal in light of a
development that occurred during the pendency of the appeal.
We have never required any particular form of evidence from litigants who wish to alert
an appellate court that an intervening development may preclude the court from adjudicating a
case – although adhering to certain formalities, such as filing certified records or providing
affidavits, is the better practice. Here, an attorney for the Commonwealth, as an officer of the
court, proffered to the Court of Appeals that Josephson was a fugitive and tendered several
documents in support of that claim. Josephson objected to the application of the fugitive
disentitlement doctrine on a number of grounds. However, he never denied that he was, in fact, a
fugitive. Josephson’s status as a fugitive was, therefore, never placed at issue. Because no
3 genuine dispute existed about whether Josephson was a fugitive, the Court of Appeals could
proceed to determine whether it should apply the doctrine.1
II. THE COURT OF APPEALS DID NOT ABUSE ITS DISCRETION IN DISMISSING THE APPEAL BASED ON THE FUGITIVE DISENTITLEMENT DOCTRINE.
“[I]t has been settled for well over a century that an appellate court may dismiss the
appeal of a defendant who is a fugitive from justice during the pendency of his appeal.” Sasson,
276 Va. at 622 (citation omitted). The fugitive disentitlement doctrine is rooted in the judiciary’s
“inherent power of self-defence and self-preservation.” Carter v. Commonwealth, 96 Va. 791,
816 (1899). It allows courts to protect themselves “against those who would abuse the judicial
process.” Sasson, 276 Va. at 622 (citation omitted).
Litigation entails reciprocal obligations: an appellant (or petitioner) who demands that the [Commonwealth] respect a favorable outcome must ensure that an adverse decision also can be carried out. . . . A litigant whose disappearance makes an adverse judgment difficult if not impossible to enforce cannot expect favorable action. . . . Someone who cannot be bound by a loss has warped the outcome in a way prejudicial to the other side; the best solution is to dismiss the proceeding.
Sapoundjiev v. Ashcroft, 376 F.3d 727, 729 (7th Cir. 2004) (internal citations omitted); see also
Morrison v. Morrison, 57 Va. App. 629, 637 (2011) (“[A] fugitive from justice may not seek
relief from the judicial system whose authority he or she evades.”) (quotation omitted). As
several federal appellate courts have memorably put it, a “‘heads I win, tails you’ll never find
1 For our adversarial system to function as intended, each side should have the opportunity to present its view of the case.
Free access — add to your briefcase to read the full text and ask questions with AI
PRESENT: All the Justices
JUNIOR JOSEPHSON OPINION BY v. Record No. 230856 JUSTICE STEPHEN R. McCULLOUGH December 12, 2024 COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
The Court of Appeals dismissed Junior Josephson’s appeal under the fugitive
disentitlement doctrine. It held that Josephson forfeited his right to appellate review of his
criminal conviction when he absconded from probation during the pendency of his appeal.
Josephson challenges this dismissal on a number of grounds. For the reasons noted below, we
affirm the judgment of the Court of Appeals.
BACKGROUND
Josephson was convicted of possession of heroin and fentanyl, as well as petit larceny.
He received suspended sentences for the drug offenses and 90 days to serve on the larceny
charge. The sentences were suspended on the condition that Josephson comply with supervised
probation for a period of three years. Josephson noted an appeal to the Court of Appeals. While
the appeal was pending, the Commonwealth filed a motion to dismiss the appeal on the basis that
the fugitive disentitlement doctrine barred Josephson from proceeding. In support of the motion,
the Commonwealth argued that Josephson had previously absconded from probation, and that he
had once again failed to stay in contact with his probation officer. The Commonwealth proffered
that Josephson’s probation officer requested a capias, which the court issued approximately one
month before the Commonwealth filed its motion to dismiss. At the time the Commonwealth filed the motion, the capias remained outstanding. The Commonwealth proffered several
exhibits, including the major violation reports and the capias.
With remarkable speed – just two days after the Commonwealth’s motion to dismiss, and
without awaiting a response from defense counsel – the Court of Appeals dismissed the appeal
on the basis of the fugitive disentitlement doctrine. Counsel for Josephson filed a petition for
rehearing, in which counsel asked the Court of Appeals to reconsider its ruling. Notably, counsel
for Josephson did not aver that Josephson was not, in fact, a fugitive (or that he was no longer a
fugitive). The Court of Appeals denied the petition for rehearing. Josephson then appealed to
this Court.
ANALYSIS
The lone issue before us is whether the Court of Appeals properly applied the fugitive
disentitlement doctrine. We review a lower court’s invocation of the fugitive disentitlement
doctrine “under an abuse of discretion standard.” Sasson v. Shenhar, 276 Va. 611, 627 (2008).
I. AN APPELLATE COURT MAY CONSIDER FACTUAL DEVELOPMENTS THAT BEAR UPON WHETHER THE COURT SHOULD ADJUDICATE A CASE.
As a threshold matter, Josephson contends that the Court of Appeals, exercising its
appellate jurisdiction, could not determine whether he was, in fact, a fugitive. Josephson notes
that factfinding should occur in the trial courts. On that premise, he argues that an appellate
court would be engaging in impermissible factfinding if it were to determine that a litigant is a
fugitive.
We do not quibble with the general proposition that factual development in a case must
occur at trial. In this instance, however, we are faced with an intervening development that
occurred after the trial concluded and while the case was pending on appeal. The question
2 before us is whether that development – Josephson’s flight from justice – could be considered by
the Court of Appeals in determining whether the appeal should be dismissed.
We have previously observed that it is “well settled in this State and elsewhere that an
appellate court may consider matters which have occurred since the entry of the judgment
appealed from to determine whether it will proceed to review the record before it.” Ward v.
Charlton, 177 Va. 101, 107-08 (1941). For example, we are called upon with some frequency to
determine whether a case has become moot while the appeal is pending. See, e.g., Godlove v.
Rothstein, 300 Va. 437 (2022) (case became moot when one of the parties to the dispute sold the
property at issue). In resolving such questions, there may be a need for factfinding – if there is a
genuine factual dispute. That factfinding can be resolved through a remand to the circuit court or
via some other mechanism. See, e.g., Sheehy v. Williams, 299 Va. 274 (2020) (remanding the
case to the circuit court to determine whether the appellant had voluntarily paid the judgment,
which would make the controversy moot). When there is no factual dispute, however, an
appellate court can proceed to determine whether it should adjudicate the appeal in light of a
development that occurred during the pendency of the appeal.
We have never required any particular form of evidence from litigants who wish to alert
an appellate court that an intervening development may preclude the court from adjudicating a
case – although adhering to certain formalities, such as filing certified records or providing
affidavits, is the better practice. Here, an attorney for the Commonwealth, as an officer of the
court, proffered to the Court of Appeals that Josephson was a fugitive and tendered several
documents in support of that claim. Josephson objected to the application of the fugitive
disentitlement doctrine on a number of grounds. However, he never denied that he was, in fact, a
fugitive. Josephson’s status as a fugitive was, therefore, never placed at issue. Because no
3 genuine dispute existed about whether Josephson was a fugitive, the Court of Appeals could
proceed to determine whether it should apply the doctrine.1
II. THE COURT OF APPEALS DID NOT ABUSE ITS DISCRETION IN DISMISSING THE APPEAL BASED ON THE FUGITIVE DISENTITLEMENT DOCTRINE.
“[I]t has been settled for well over a century that an appellate court may dismiss the
appeal of a defendant who is a fugitive from justice during the pendency of his appeal.” Sasson,
276 Va. at 622 (citation omitted). The fugitive disentitlement doctrine is rooted in the judiciary’s
“inherent power of self-defence and self-preservation.” Carter v. Commonwealth, 96 Va. 791,
816 (1899). It allows courts to protect themselves “against those who would abuse the judicial
process.” Sasson, 276 Va. at 622 (citation omitted).
Litigation entails reciprocal obligations: an appellant (or petitioner) who demands that the [Commonwealth] respect a favorable outcome must ensure that an adverse decision also can be carried out. . . . A litigant whose disappearance makes an adverse judgment difficult if not impossible to enforce cannot expect favorable action. . . . Someone who cannot be bound by a loss has warped the outcome in a way prejudicial to the other side; the best solution is to dismiss the proceeding.
Sapoundjiev v. Ashcroft, 376 F.3d 727, 729 (7th Cir. 2004) (internal citations omitted); see also
Morrison v. Morrison, 57 Va. App. 629, 637 (2011) (“[A] fugitive from justice may not seek
relief from the judicial system whose authority he or she evades.”) (quotation omitted). As
several federal appellate courts have memorably put it, a “‘heads I win, tails you’ll never find
1 For our adversarial system to function as intended, each side should have the opportunity to present its view of the case. Here, the Court of Appeals granted the Commonwealth’s motion to dismiss just two days after it was filed, without waiting for a response from Josephson. Josephson should have been afforded that opportunity. In this instance, however, Josephson’s diligent counsel promptly filed a petition for reconsideration. Consequently, we do not discern any prejudice to Josephson.
4 me’ approach” compels dismissal. Garcia-Flores v. Gonzales, 477 F.3d 439, 442 (6th Cir. 2007)
(quoting Antonio-Martinez v. INS, 317 F.3d 1089, 1093 (9th Cir. 2003)).
We have specified a three-part test that governs the application of the fugitive
disentitlement doctrine: “(1) the appellant must be a fugitive, (2) there must be a nexus between
the current appeal and the appellant’s status as a fugitive, and (3) dismissal must be necessary to
effectuate the policy concerns underlying the doctrine.” Sasson, 276 Va. at 623.
First, the Commonwealth’s proffer that Josephson was a fugitive, supported by
documentary evidence of that fact, and in the absence of a factual contest on the question, was
sufficient for the Court of Appeals to conclude that he was, in fact, a fugitive. Second, a nexus is
present here between the appeal and Josephson’s status as a fugitive. Josephson was appealing
from his criminal convictions. He fled while on probation for those convictions while his appeal
was pending. 2 This is not a circumstance where the appellant’s flight was unrelated to the
appeal. Finally, the Court of Appeals could conclude that dismissal was necessary to effectuate
the policy concerns upon which the doctrine is based. The enforceability rationale justifies
dismissal: flight by the defendant can render the judgment unenforceable. Ortega-Rodriguez v.
United States, 507 U.S. 234, 239-40 (1993). Additionally, “dismissal by an appellate court after
a defendant has fled its jurisdiction serves an important deterrent function and advances an
interest in efficient, dignified appellate practice.” Id. at 242; see also Sasson, 276 Va. at 627-28
(“Dismissing [the] appeals furthers the goals of the fugitive disentitlement doctrine by
2 Our sister courts have commonly dismissed appeals in this very circumstance. See, e.g., United States v. Hanzlicek, 187 F.3d 1219, 1221 (10th Cir. 1999); United States v. Lantigua-Bonilla, 83 F.3d 541, 542 (1st Cir. 1996); Williams v. Alameida, 511 F.3d 973, 974 (9th Cir. 2007); Commonwealth v. Simon, 461 N.E.2d 758 (Mass. 1984); People v. Dios, 38 N.Y.S.3d 417 (N.Y. App. Div. 2016); State v. Smith, 822 P.2d 1193 (Ore. 1992) (citing cases).
5 discouraging flight from justice, encouraging compliance with court orders, and promoting the
efficient, dignified operation of the courts.”) (citation omitted). Therefore, the Court of Appeals
properly exercised its discretion to dismiss Josephson’s appeal.
CONCLUSION
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
Affirmed.