Anthony Wayne Ross v. Commonwealth of Virginia ( 2001 )

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."
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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
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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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