Michael Joseph Staton v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bumgardner
Argued at Salem, Virginia
MICHAEL JOSEPH STATON
MEMORANDUM OPINION * BY
v. Record No. 2055-01-4 JUDGE LARRY G. ELDER
DECEMBER 11, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
Ann Hunter Simpson, Judge
Cary S. Greenberg (Edward S. Rosenthal; A.
Lewis Lowery, Jr.; Rich Greenberg Rosenthal &
Costle, LLP; Rinehart, Lowery, Strentz &
Butler, P.L.C., on briefs), for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
Michael Joseph Staton (appellant) appeals from a decision
of the Stafford County Circuit Court (trial court) denying his
motion for bail pending appeal of his convictions for two counts
of indecent liberties in violation of Code § 18.2-370.1, two
counts of aggravated sexual assault in violation of Code
§ 18.2-67.3, and one count of object sexual penetration in
violation of Code § 18.2-67.2. We hold that Code § 19.2-319
gives a court broad discretion in determining whether and under
what circumstances to grant bail pending appeal and that the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
trial court erred in concluding it lacked authority to condition
appellant's release on bail, inter alia, on his participation in
an electronic home monitoring program. Thus, we reverse the
trial court's denial of appellant's bail request and remand for
further proceedings consistent with this opinion. 1
"Code § 19.2-319 is the statutory basis upon which the
trial court entertains requests for the granting of
post-conviction bail." Dowell v. Commonwealth, 6 Va. App. 225,
228, 367 S.E.2d 742, 744 (1988). Determining whether a
defendant should be released on bail pending the appeal of a
felony conviction "requires the trial court to consider
questions essential to all bail decisions -- whether the
defendant will appear for hearing or at such other time and
place as may be directed and whether the defendant's liberty
will constitute an unreasonable danger to himself and the
public." Id. at 229, 367 S.E.2d at 744. "This statutory grant
of power . . . 'contemplates that it will be exercised with a
reasonable discretion, and unless it appears . . . that such
discretion has been abused, the appellate court should not
disturb the action of the trial court.'" Id. (quoting
1
Although we reverse and remand, we note that the trial
court is not bound by its initial determination to grant bail
conditioned upon electronic home monitoring and remains free to
determine anew whether appellant's release is appropriate under
Dowell v. Commonwealth, 6 Va. App. 225, 229, 367 S.E.2d 742, 744
(1988).
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Commonwealth v. Smith, 230 Va. 354, 362, 337 S.E.2d 278, 282-83
(1985)).
Here, although it was within the trial court's discretion
to reconsider its earlier bail determination and to conclude
that appellant's release on any terms constituted an
unreasonable danger to the public, the court erroneously
concluded that Code § 53.1-131.2 prevented it from requiring
participation in an electronic home monitoring program as a
condition of bail. Code § 53.1-131.2 covers a trial court's use
of a home/electronic incarceration program only as a condition
of bail "pending trial" and "as a condition of probation." It
does not address the circumstances under which a trial court may
use electronic home monitoring as a condition of bail pending
appeal. Thus, the provisions of that code section prohibiting
the use of home monitoring for individuals convicted of
particular categories of crimes do not apply, and the trial
court had broad discretion under Code § 19.2-319 to condition
appellant's release pending appeal on any combination of
conditions it thought necessary and appropriate to satisfy the
Dowell concerns. See 6 Va. App. at 229, 367 S.E.2d at 744.
Such conditions may include electronic home monitoring if a
satisfactory program is available that addresses the trial
judge's concerns.
For these reasons, we hold the trial court erroneously
concluded that it could not employ electronic home monitoring as
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a condition of bail pending appeal, and we remand for the trial
court to consider anew whether appellant's release is
appropriate under Dowell if subject to this condition or any
others, alone or in combination.
Reversed and remanded.
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