Cletis Jullian Cave v. Commonwealth of Virginia ( 2022 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judges AtLee and Malveaux
UNPUBLISHED
CLETIS JULLIAN CAVE
MEMORANDUM OPINION*
v. Record No. 0242-22-2 PER CURIAM
OCTOBER 18, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
Ricardo Rigual, Judge
(Alexander Raymond, on brief), for appellant. Appellant
submitting on brief.
(Jason S. Miyares, Attorney General; Victoria Johnson, Assistant
Attorney General, on brief), for appellee. Appellee submitting on
brief.
Cletis Jullian Cave appeals a January 21, 2022 order denying his motion for bond under
Code § 19.2-319 pending appeal of his convictions for the following offenses: driving after
revocation of license for driving while intoxicated, subsequent offense, in violation of Code
§ 46.2-391(D)(3), driving while intoxicated after having been previously convicted of a
DWI-related felony, in violation of Code § 18.2-266, and refusal of a breath alcohol test, subsequent
offense within ten years, in violation of Code § 18.2-268.3. He argues that the trial court abused its
discretion in denying his motion because his convictions were not supported by the evidence, he
posed no danger to the community, and he “would likely” finish serving his sentence on the
underlying convictions before his appeal of those convictions concluded. For the following
reasons, we affirm the trial court’s judgment.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party at trial.” Ellis v. Commonwealth,
75 Va. App. 162, 166 (2022) (quoting Green v. Commonwealth, 72 Va. App. 193, 197 n.1 (2020)).
Doing so requires us to “discard the evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all
fair inferences to be drawn therefrom.” Commonwealth v. Cady, 300 Va. 325, 329 (2021) (quoting
Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).
After midnight on September 4, 2020, Cave drove his car into the rear of a truck that was
slowing to stop at an intersection. The driver of the truck, Juan Alejandro Rodriguez, approached
Cave’s car to see if he was injured. Rodriguez testified that the car’s airbag had deployed and Cave,
the only person in the car, was trying to open its door. Rodriguez returned to his truck and called
9-1-1. Virginia State Police Master Trooper David Lewis responded to the call and smelled a
“heavy odor of alcohol” about Cave’s person. In addition, Cave’s speech was “slurred, [and] his
eyes were glassy and bloodshot.” Lewis wanted to move Cave’s vehicle from the roadway, but
Cave’s keys would only unlock the door. The keyring had been “sprung open as if the key had been
pulled apart.” Lewis could not find the ignition key, and Cave refused to tell Lewis where it was.
After Cave refused to perform field sobriety and breath tests, Lewis arrested him for driving under
the influence of alcohol. At the jury trial, the Commonwealth introduced two videos from Lewis’s
dash camera, which depicted Cave “stumbl[ing]” and almost “fall[ing] over.”
The jury convicted Cave of driving after revocation of license for driving while intoxicated,
subsequent offense, driving while intoxicated after having been previously convicted of a
DWI-related felony, and refusal of a breath alcohol test, subsequent offense within ten years. After
a sentencing hearing, the trial court sentenced Cave to a total of six years and twelve months, with
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four years and six months suspended. On October 13, 2021, Cave timely appealed his convictions
to this Court.
On January 19, 2022, Cave moved the trial court to admit him to bail “pending his appeal”
of the underlying convictions. At a hearing on the motion, Cave argued that there was “zero
evidence” that he had been driving and “limited evidence” that he was intoxicated at the time of the
collision. Accordingly, he was “very confident in his chances” on appeal. Cave conceded that he
previously had been convicted of DUI and driving on a revoked license after a DUI. Nonetheless,
he argued that because he “had zero violations” while on bond “for about fourteen months” on those
charges, conditioned on wearing a “SCRAM” bracelet that would monitor his blood alcohol
content, the trial court should grant him an appeal bond with the same condition. Cave also argued
that his projected release date “might very well” come before his appeal of the underlying
convictions was resolved.
The Commonwealth responded that Cave posed a danger to the community because he had
been convicted three times of felony DUI. The Commonwealth also reminded the court that it had
denied Cave’s motion for pre-trial bond. Accordingly, the Commonwealth opposed Cave’s motion.
The trial court stated that it “remember[ed]” the evidence “very well” and concluded that
Cave’s “contention that he wasn’t intoxicated” was “absurd.” The court recalled watching a video
in which Cave was “tripping all over himself and slurring his words.” In addition, the court found
that the “[c]lear implication” of Lewis being unable to find the ignition key was that “Cave threw
[it] in the woods.” Thus, the court held that Cave “continues to be” a danger to the community and
denied his request for an appeal bond. This appeal follows.
II. ANALYSIS
Cave asserts that “the only argument against granting” him bond was that he posed a danger
to the community. That danger, however, was mitigated by his willingness to wear a “SCRAM”
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bracelet as a condition of his release. Moreover, because “he was fully compliant” with wearing a
“SCRAM” bracelet in “past pretrial bonds,” the court abused its discretion by placing “too much
weight” on his dangerousness. Cave also argues that the trial court abused its discretion by denying
his motion because “he believed that his convictions would be overturned on appeal,” and he
“would likely be released prior to his appeal being concluded.”
We review a trial court’s decision to deny bail under Code § 19.2-319 for abuse of
discretion. Strohecker v. Commonwealth, 23 Va. App. 242, 250 (1996). “The trial court must
exercise ‘not an arbitrary discretion, but a sound judicial discretion.’” Commonwealth v. Duse, 295
Va. 1, 7 (2018) (quoting Judd v. Commonwealth, 146 Va. 276, 277 (1926)) (stating standard for
pre-trial bail determinations). “[T]he abuse of discretion standard requires a reviewing court to
show enough deference to a primary decisionmaker’s judgment that the court does not reverse
merely because the reviewing court would have come to a different result in the first instance.” Id.(alteration in original) (quoting Lawlor v. Commonwealth, 285 Va. 187, 212 (2013)). “Only when
reasonable jurists could not differ can we say an abuse of discretion has occurred.” Thomas v.
Commonwealth, 44 Va. App. 741, 753, adopted upon reh’g en banc, 45 Va. App. 811 (2005). The
“three principal ways” a trial court can abuse its discretion are by (1) “fail[ing] to consider a
relevant factor that should have been given significant weight,” (2) “consider[ing] and giv[ing]
significant weight to an irrelevant or improper factor,” or (3) “commit[ting] a clear error in
judgment” while weighing “all proper factors, and no improper ones.” Duse, 295 Va. at 7 (citing
Lawlor, 285 Va. at 213).
“[P]ost-conviction bail is generally less liberally accorded than in the pretrial stage.” Dowell
v. Commonwealth, 6 Va. App. 225, 228 (1988) (quoting State ex rel. Bennett v. Whyte, 258 S.E.2d
123, 127 (W. Va. 1979)); see also Palmer v. Commonwealth, 74 Va. App. 336, 342 (2022)
(Raphael, J., concurring). Moreover, “[u]nlike Code § 19.2-120 which governs pre-conviction bail,
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Code § 19.2-319 contains no general standards by which the exercise of discretion to grant or deny
post[-]conviction bail may be measured.” Dowell, 6 Va. App. at 228. Nonetheless, the “primary
test” for determining whether a defendant should be released following conviction for a felony “still
requires the trial court to consider questions essential to all bail decisions—whether the defendant
will appear for hearing or at such other time . . . as may be directed and whether the defendant’s
liberty will constitute an unreasonable danger to himself and the public.” Id. at 229 (citing
Chambers v. Mississippi, 405 U.S. 1205, 1206 (1972)). The trial judge should consider all “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,’” and the defendant’s
“‘employment [status],’” “‘record of escape,’” and “‘propensity for violence.’” Id. (alterations in
original) (quoting Commonwealth v. Smith, 230 Va. 354, 363 (1985)).
Here, the trial court did not abuse its discretion by denying Cave’s motion for an appeal
bond under Code § 19.2-319 as the record supports the trial court’s finding that Cave would pose a
danger to the community if released. Indeed, after having been convicted of driving under the
influence three times and having his operator’s license revoked, Cave again decided to drive while
intoxicated and collided into the rear of Rodriguez’s truck as it stopped at an intersection.
Moreover, Cave, who was so intoxicated that he was “tripping all over himself and slurring his
words,” discarded his ignition key after the accident and refused to cooperate with Trooper Lewis’s
investigation. Thus, Cave’s demonstrated persistence in driving under the influence despite
significant court intervention supports a finding that his release would pose a danger to himself and
the public. Although Cave contends that his dangerousness would be mitigated by a “SCRAM”
bracelet, such a condition would not prevent Cave from driving while intoxicated and endangering
the public. In addition, Cave’s arguments that “he believed” his convictions would be overturned
on appeal and that his sentence would be completed before his appeal was resolved are misplaced in
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the context of a post-conviction motion for bail as they do not “bear upon the essential questions
whether the defendant will appear at further proceedings when required to do so and whether [he]
represents an unreasonable danger to himself and the public.” Id. Thus, the record amply supports
the trial court’s conclusion that Cave should not be admitted to bail pending appeal because he
would pose a danger to the community if released. Accordingly, we affirm the judgment of the trial
court.
III. CONCLUSION
For the foregoing reasons, the trial court’s judgment is affirmed.
Affirmed.
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