                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Humphreys
Argued at Salem, Virginia


DESTINY GRACE GORDON
                                                              MEMORANDUM OPINION * BY
v.     Record No. 2584-10-3                                     JUDGE LARRY G. ELDER
                                                                  NOVEMBER 1, 2011
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                              Mosby G. Perrow, III, Judge

                 Keith Orgera, Senior Assistant Public Defender (Office of the Public
                 Defender, on brief), for appellant.

                 Joshua M. Didlake, Assistant Attorney General (Kenneth T.
                 Cuccinelli, II, Attorney General, on brief), for appellee.


       Destiny Grace Gordon (appellant) appeals her bench trial conviction for petit larceny.

She contends the trial court erred in forcing her to either withdraw her appeal or acquiesce in the

Commonwealth’s motion to enter a nolle prosequi on the petit larceny indictment. Because

appellant’s counsel voluntarily withdrew the appeal, she cannot now claim the trial court

“forced” her to take any action. Accordingly, we affirm the conviction.

                                                  I.

                                             ANALYSIS

       During appellant’s appeal from her misdemeanor petit larceny conviction in the general

district court on November 3, 2010, the Commonwealth moved to enter a nolle prosequi.

Appellant informed the trial court that if it was “inclined to grant the motion,” she wished to

“first withdraw the appeal.” The trial court granted her request. Appellant argues on appeal that

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
the Commonwealth failed to show good cause as to why the motion to nolle prosequi should

have been granted and, thus, the trial court erred in “forcing [her] to either withdraw her appeal,

or suffer an improper and unconstitutional nolle prosequi of her charge.” Appellant contends the

Commonwealth’s desire “to directly indict [her], apparently for a felony charge, rather than the

misdemeanor she was convicted on in General District Court” did not constitute good cause.

        Code § 19.2-265.3 authorizes the trial court to enter a nolle prosequi “only in the

discretion of the court, upon motion of the Commonwealth with good cause therefor shown.”

“In reviewing an exercise of discretion, we do not substitute our judgment for that of the trial

court. Rather, we consider only whether the record fairly supports the trial court’s action.” Beck

v. Commonwealth, 253 Va. 373, 385, 484 S.E.2d 898, 906 (1997). We will, therefore, overturn

the trial court’s grant of a nolle prosequi only where the accused presents “clear evidence that the

decision to grant the motion was not judicially sound.” Harris v. Commonwealth, 258 Va. 576,

583, 520 S.E.2d 825, 829 (1999).

        Here, we are unable to determine whether the trial court had good cause to enter a nolle

prosequi because appellant voluntarily withdrew her appeal, thereby rendering the issue moot.

Unless the trial court actually enters the nolle prosequi, any possible harm flowing from the trial

court’s finding of good cause is wholly speculative. 1 See Luce v. United States, 469 U.S. 38, 42,

105 S. Ct. 460, 463-64, 83 L. Ed. 2d 443, 448 (1984) (holding that a defendant must testify at

trial in order to be entitled to appellate review of the trial court’s in limine ruling permitting the


        1
          In addition, we note that the trial court did not prompt appellant to withdraw her appeal;
appellant, on her own volition, decided to let the misdemeanor petit larceny conviction stand
rather than risk being convicted of the more serious felony petit larceny charge. Thus, appellant
cannot now argue the trial court erred in “forcing” her into this litigation tactic because the
decision to withdraw the appeal was wholly her idea. See Rowe v. Commonwealth, 277 Va.
495, 502, 675 S.E.2d 161, 164-65 (2009) (considering “the error asserted by Rowe” to be “the
result of his own strategy and actions at trial” where he argued at trial that assault and battery of
a police officer was a lesser-included offense of attempted capital murder of a law enforcement
officer, yet argued on appeal that the former was not a lesser-included offense of the latter).
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use of a prior conviction to impeach his credibility); Smith v. Commonwealth, 43 Va. App. 374,

378, 598 S.E.2d 325, 327 (2004) (holding that the defendant’s “tactical decision not to present

witnesses to testify as to his truthfulness . . . waive[d] his right to complain of the trial court’s

ruling [to allow the Commonwealth to present evidence of the defendant’s reputation for

unlawfulness] on appeal”).

        Appellant next argues the Commonwealth’s conduct denied her due process by forcing her

to choose between forgoing her misdemeanor appeal and risking that the Commonwealth would

secure a conviction against her for the felony larceny offense. Conceding she did not make this

objection at trial, appellant invokes the “ends of justice” exception to Rule 5A:18.

        This Court may consider an alleged error that was not “stated with reasonable certainty at

the time of the ruling” in order “to attain the ends of justice.” Rule 5A:18. “The record ‘must

affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have

occurred.’” Akers v. Commonwealth, 31 Va. App. 521, 527 n.2, 525 S.E.2d 13, 16 n.2 (2000)

(quoting Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997)). “The

denial of due process involves the denial of a fundamental constitutional right and falls within

the ambit of Rule 5A:18 to attain the ends of justice.” Allen v. Commonwealth, 36 Va. App.

334, 338-39, 549 S.E.2d 652, 654 (2001). We will consider a due process challenge that was not

raised in the trial court if “under the facts and circumstances of [the] case, a manifest injustice

has occurred.” Duck v. Commonwealth, 8 Va. App. 567, 571, 383 S.E.2d 746, 748 (1989).

        Essentially, appellant characterizes the Commonwealth’s motion to enter a nolle prosequi

as the “‘imposition of a penalty upon the defendant for having successfully pursued a statutory

right,’” which constitutes “‘a violation of due process of law.’” Battle v. Commonwealth, 12

Va. App. 624, 628, 406 S.E.2d 195, 197 (1991) (quoting North Carolina v. Pearce, 395 U.S. 711,

724, 89 S. Ct. 2072, 2080, 23 L. Ed. 2d 656, 669 (1969)). “A person convicted of an offense is

                                                  -3-
entitled to pursue his statutory right to a trial de novo, without apprehension that the State will

retaliate by substituting a more serious charge for the original one, thus subjecting him to a

significantly increased potential period of incarceration.” Blackledge v. Perry, 417 U.S. 21, 28,

94 S. Ct. 2098, 2102-03, 40 L. Ed. 2d 628, 634-35 (1974). Where “a change in the charging

decision [is] made after an initial trial is completed,” United States v. Goodwin, 457 U.S. 368,

381, 102 S. Ct. 2485, 2493, 73 L. Ed. 2d 74, 85 (1982), a “presumption of prosecutorial

vindictiveness” attaches regardless of whether “[any] evidence [exists] that the prosecutor . . .

acted in bad faith or maliciously in seeking a [subsequent] felony indictment against [the

defendant],” Perry, 417 U.S. at 28, 94 S. Ct. at 2102, 40 L. Ed. 2d at 634; see also, e.g., Allen, 36

Va. App. at 341-42, 549 S.E.2d at 655.

       However, in some cases the Commonwealth may move to enter a nolle prosequi without

impinging upon an accused’s statutory right to a trial de novo. See, e.g., Perry, 417 U.S. at 29

n.7, 94 S. Ct. at 2103 n.7, 40 L. Ed. 2d at 635 n.7. As the Supreme Court noted, one such

exception arises if “it was impossible to proceed on the more serious charge at the outset.” Id.

(recognizing that a defendant who was originally tried and convicted for assault and battery

could later be indicted for homicide where the victim died subsequent to the first conviction

(citing Diaz v. United States, 223 U.S. 442, 32 S. Ct. 250, 56 L. Ed. 500 (1912)).

       Here, because appellant moved to withdraw her appeal, we are unable to determine from

the record whether the Commonwealth had a constitutionally valid reason for seeking a nolle

prosequi. In order to indict appellant for petit larceny as a felony, the Commonwealth was

required to prove at least two prior convictions for “larceny or any offense deemed to be or

punished as larceny.” Code § 18.2-104. It is unclear from the record before us on appeal

whether appellant in fact had two such prior convictions at the time of her district court trial for

the instant petit larceny offense and, even if she did, whether the Commonwealth knew of the

                                                 -4-
existence of those predicate convictions. In other words, because it may have been legally

impossible for the Commonwealth to bring the felony petit larceny charge at the time of

appellant’s first trial, we would be forced to speculate to determine whether the

Commonwealth’s motion for entry of a nolle prosequi was constitutionally proper. Cf. Reed v.

Commonwealth, 6 Va. App. 65, 69, 366 S.E.2d 274, 277 (1988) (declining to speculate as to

whether the prosecutor would have used a prior conviction to impeach the defendant or whether

the trial court would have allowed the defendant to explain the prior conviction where the

defendant opted not to testify). Indeed, it is entirely possible that had the Commonwealth

proceeded on the felony indictment, appellant would have been acquitted. Appellant, who

voluntarily withdrew her appeal and thereby prevented the Commonwealth from indicting her on

the more serious charge, would have this Court issue a ruling based on the mere assumption that

if she had exercised her right to appeal, the Commonwealth would both have obtained an

indictment for the felony and secured a conviction. However, because appellant made the

tactical decision to withdraw her appeal, she “failed to affirmatively demonstrate that a

‘miscarriage of justice has occurred.’” Andrews v. Commonwealth, 37 Va. App. 479, 494, 559

S.E.2d 401, 409 (2002) (quoting Redman, 25 Va. App. at 221, 487 S.E.2d at 272).

                                                  II.

                                           CONCLUSION

          In view of appellant’s tactical decision to withdraw her appeal, we decline to speculate

whether good cause existed to support the nolle prosequi entry or whether the Commonwealth

moved to enter the nolle prosequi in violation of appellant’s due process rights. Accordingly, we

affirm.

                                                                                            Affirmed.




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