                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Alston and Decker
UNPUBLISHED


              Argued by teleconference


              CORNELL McDANIEL BRANCH
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0205-13-2                                  JUDGE MARLA GRAFF DECKER
                                                                               SEPTEMBER 16, 2014
              COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                                             Richard D. Taylor, Jr., Judge

                               Joan J. Burroughs (Devika E. Davis; Devika E. Davis, P.C., on
                               briefs), for appellant.

                               Steven A. Witmer, Senior Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     Cornell McDaniel Branch (the appellant) contends that the trial court erred by finding that it

              lacked authority to take his concealed weapon charge under advisement once he entered a plea of

              nolo contendere but before the court found him guilty of the offense. The appellant suggests that

              Starrs v. Commonwealth, 287 Va. 1, 752 S.E.2d 812 (2014), controls and that the trial court was

              authorized to take the case under advisement and defer its findings as well as any punishment. For

              the reasons that follow, the convictions are affirmed.1

                                     I. BACKGROUND AND PROCEDURAL HISTORY

                     On December 22, 2011, police conducted a traffic stop of a vehicle driven by the appellant.

              As a result of the stop, the appellant was charged with possession of a concealed weapon, first


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                     While the panel disagrees regarding the underlying rationale for the judge’s ruling, it
              unanimously agrees that the convictions should be affirmed. Three separate opinions follow.
offense, in violation of Code § 18.2-308, and defective equipment (an inoperable automobile

headlight), in violation of Code §§ 46.2-1003 and -1011. He was convicted of both offenses in

general district court and appealed the decisions to the circuit court. At the appellant’s trial de novo,

his counsel informed the court that the appellant was prepared to plead nolo contendere, or “no

contest,” to both charges. Counsel explained that she would stipulate to the facts and would

proceed to sentencing with a motion for the court to take the case under advisement.

        The trial court conducted its inquiry concerning the appellant’s pleas. The appellant pled no

contest to the two offenses. The court engaged in a colloquy and found that the pleas were entered

in a manner consistent with the requirements of the law. The judge “accept[ed] the pleas[,] subject

to the factual basis being shown by the Commonwealth.”

        The Commonwealth proffered the facts for the record, and the appellant concurred with the

prosecutor’s summary. The appellant’s counsel asked to be heard on the disposition of the case

before the court made its findings of guilt. She presented her argument, which summarized the

circumstances surrounding the appellant’s case, emphasized his background, and highlighted his

efforts to overcome adversity. Counsel suggested that the unique situation warranted a deferred

disposition. Further, appellant’s counsel asked the court to take the case under advisement and

ultimately dismiss the charges after the appellant completed whatever terms the court deemed

appropriate. The Commonwealth objected to the court’s taking the case under advisement due to

the nature of the concealed weapon offense. The judge advised counsel that he was going to “think

about it” and continued the case.

        At the next hearing, the judge stated that he “took a look at the law” and, although he found

the appellant’s argument “really compelling,” he did not believe that he had the authority to defer

the disposition of the case. The court discussed the state of the law with the appellant’s counsel,

who also reminded the court that it had withheld the actual findings of guilt and continued the case.

                                                  -2-
She suggested that based upon the law at that time, deferring the case was still an option for the

court. After further discussion, the prosecutor made clear that the Commonwealth objected to the

court’s taking the case under advisement, not because the court did not have the power to do so but

because the facts of the case, specifically the firearm offense, warranted a conviction. The court

then continued the case for a second time.

        The court held a third hearing on sentencing, at which it indicated ongoing concern over

“whether or not [it] ha[d] authority to [take the case under advisement] after [the appellant] ha[d]

entered a plea of no contest.” Appellant’s counsel, referencing the applicable law, continued to urge

that the court take the case under advisement and ultimately dismiss the firearm charge. The

Commonwealth, represented by a different prosecutor, did not provide any additional insight. After

the discussion, the court ruled, “I’m not going to take it under advisement. So we need to go

forward.” Appellant’s counsel neither asked for clarification of the ruling nor objected to it. The

court convicted the appellant, sentenced him to ten days in jail on each offense, with all time

suspended, and fined him $100, which it also suspended.

                                             II. ANALYSIS

        The appellant’s argument is based on the assumption that the trial court found him guilty

after determining that it lacked the authority to take the case under advisement and defer disposition.

The alleged error rests on the theory that the trial court incorrectly ruled that it could not legally take

the concealed weapon charge under advisement.

        The party alleging reversible error has the burden to show through the record that the

alleged error occurred and that he preserved the error for appeal. See Rule 5A:8; Bullock v.

Commonwealth, 48 Va. App. 359, 366, 631 S.E.2d 334, 337 (2006), overruled in part on other

grounds, Brown v. Commonwealth, 284 Va. 538, 545, 733 S.E.2d 638, 641-42 (2012); Johnson v.

Commonwealth, 12 Va. App. 391, 396, 404 S.E.2d 384, 386 (1991). The judgment below is

                                                   -3-
presumed correct absent such a showing. See Smith v. Commonwealth, 16 Va. App. 630, 635, 432

S.E.2d 2, 6 (1993); see also Harris v. Commonwealth, 133 Va. 700, 705, 112 S.E. 753, 754 (1922).

Additionally, on appeal, absent clear evidence to the contrary, a trial court is presumed to have

known the law and properly applied it. See Yarborough v. Commonwealth, 217 Va. 971, 978, 234

S.E.2d 286, 291 (1977); Oliver v. Commonwealth, 35 Va. App. 286, 297, 544 S.E.2d 870, 875

(2001). Further, while a trial court’s legal conclusions are reviewed de novo, this Court reviews

sentencing decisions by a trial court under the abuse of discretion standard. See Scott v.

Commonwealth, 58 Va. App. 35, 46-47, 707 S.E.2d 17, 23 (2011) (sentencing); Ngomondjami v.

Commonwealth, 54 Va. App. 310, 319, 678 S.E.2d 281, 286 (2009) (statutory interpretation and

legal conclusions).

        The judge was faced with an area of the law that was far from clear at the time that the

appellant made the motion for the court to take the case under advisement and defer disposition of

the firearm offense. Consequently, the judge, exercising an abundance of caution, continued the

case twice in order to review the law and ensure that he was aware of what he could and could not

do before he ruled. Throughout, he expressed concerns regarding his authority to defer disposition.

        The prosecutor made clear that her objection to the court’s taking the case under advisement

was not based on procedure or any legal impediment of the court to act in the manner requested but,

instead, was based on the nature of the offense. The prosecutor told the court, “I don’t feel that

taking a case under advisement with a weapon[ ] related offense is appropriate. . . . I don’t believe a

TUA [taking under advisement] would be appropriate, and based on that I would . . . ask[] the Court

to find him guilty of the concealed weapon [offense].” At the second hearing, after some discussion

about the posture of the case and the state of the law, the prosecutor reiterated the Commonwealth’s

position that it was “asking the Court to enter the conviction . . . just purely based on the facts of the

case.” This statement was followed by a clarifying question from the appellant’s counsel. She

                                                   -4-
asked, “[A]nd not based on whether or not you object to the Court’s inherent authority to take that

action?” The prosecutor responded, “Exactly.” The record shows that the Commonwealth

emphasized throughout the proceedings that its objection was substantive, not procedural, and that it

believed that the offense was not an appropriate one for the court to take under advisement. The

Commonwealth asked the court to find the appellant guilty and sentence him.

        At the final hearing, the court again recognized the legal issue concerning its authority to

take the case under advisement and engaged in yet another discussion regarding the scope of that

authority. After hearing from the appellant’s counsel regarding Hernandez v. Commonwealth, 281

Va. 222, 707 S.E.2d 273 (2011), and her assessment that the law permitted the court to take the case

under advisement, the court asked the Commonwealth, represented by a different prosecutor, if he

had anything to say about the case.2 He stated that the Commonwealth would rely on the court’s

decision. The judge concluded, “I’m not going to take it under advisement. So we need to go

forward.”

        The record supports the conclusion that the trial court chose not to take the case under

advisement, ruled on the merits, found the appellant guilty of both offenses, and sentenced him. See

Harris v. Commonwealth, 63 Va. App. 525, 531, 759 S.E.2d 29, 32 (2014). While it is clear that the

appellant asked the court to take the case under advisement and the court was concerned regarding

whether it had the authority to do so, it is equally clear that the Commonwealth objected to the

court’s taking the case under advisement due to the nature of the firearm offense and asked for a

ruling on the merits. Had the trial court chosen to base its ruling on the conclusion that it did not


        2
         The Court of Appeals’ decision in Starrs was rendered after the trial court accepted the
appellant’s nolo contendere plea but before the court entered a finding of guilt. The Supreme
Court’s decision in Starrs was not rendered until after the conclusion of this matter in the trial
court. See Starrs, 287 Va. 1, 752 S.E.2d 812 (2014), rev’g 61 Va. App. 39, 733 S.E.2d 142
(2012). In the trial court, the appellant relied on the Supreme Court’s decision in Hernandez; on
appeal, he relies on the Supreme Court’s decision in Starrs.

                                                  -5-
have the legal authority to take the case under advisement, it could have done so. It did not.

Instead, it opted not to take the case under advisement.

        When the judge ultimately stated that he was not going to take the case under advisement,

the appellant’s counsel stood silent. Consequently, the appellant cannot now complain regarding

any lack of clarity in the trial court’s ruling as it exists in the record. Such is the posture of this case

on appeal, and nothing in the record refutes the presumption of correctness afforded the trial court’s

decision. See Family Redirection Inst., Inc. v. Dep’t of Med. Assistance Servs., 61 Va. App. 765,

773, 739 S.E.2d 916, 920-21 (2013) (holding that “an appellate court ‘reviews judgments, not

statements’” made by the trial court (quoting California v. Rooney, 483 U.S. 307, 311 (1987) (per

curiam))); see also Yarborough, 217 Va. at 978, 234 S.E.2d at 291 (“[W]e will not fix upon isolated

statements of the trial judge taken out of the full context in which they were made, and use them as

a predicate for holding the law has been misapplied.”); Bassett v. Commonwealth, 13 Va. App. 580,

583-84, 414 S.E.2d 419, 421 (1992) (applying Yarborough to hold that a “trial court’s remark is not,

in and of itself, ‘the full context’ simply because it represents the only point at which the court

[expressly] addressed the issue [in dispute]”); cf. Pierce v. Commonwealth, 50 Va. App. 609,

616-17 & n.4, 652 S.E.2d 785, 789-90 & n.4 (2007) (holding, under the principle that a judge is

presumed to know and properly apply the law absent clear evidence to the contrary, that where the

judge improperly admits evidence but then “clearly articulates the reasons for his decision[] and the

improper evidence is not among those reasons,” the presumption is not overcome and the error is

harmless).

        Further, nothing in the case law suggests that the trial court’s action was improper. The

holdings in Starrs and other recent Supreme Court cases simply stand for the proposition that circuit

courts may take cases under advisement and defer disposition under a variety of circumstances that

are not specifically authorized by the legislature but fall into the category of inherent powers of the

                                                    -6-
court. These cases, however, do not require circuit courts to do so under any specific identified

circumstances. See Hernandez, 281 Va. 222, 707 S.E.2d 273; Moreau v. Fuller, 276 Va. 127, 661

S.E.2d 841 (2008). Thus, the option to take the case under advisement remains the decision of the

trial court. In this case, where a firearm offense was involved, any confusion aside, the judge chose

not to exercise that option.3

                                         III. CONCLUSION

        The record does not show that the trial court ruled that it lacked authority to take the case

under advisement and defer disposition. Therefore, we affirm the decision of the trial court and

remand the case to the court solely for the purpose of correcting various clerical errors in the

sentencing order.4

                                                             Affirmed and remanded with instructions.




        3
         The appellant does not argue that the trial court’s ruling, if it constituted a denial of his
request on the merits, was an abuse of discretion.
        4
            The sentencing order erroneously references Code § 18.2-308 for the defective
equipment violation rather than Code §§ 46.2-1003 and 46.2-1011. It also contains the incorrect
Virginia Crime Code number for the equipment violation. Further, the order includes a sentence
of ten days in jail, with all time suspended, for the defective equipment offense. This sentence
exceeds the trial court’s statutory authority since the penalty for this traffic infraction is a fine of
up to $250. See Code §§ 18.2-11, 46.2-113. This punishment also appears to stand in contrast to
the trial court’s pronouncement from the bench.
          Consequently, in accordance with Code § 8.01-428(B), we remand solely for entry of an
order correcting the listed citation errors and clarifying the action the trial court took at
sentencing. See Tatum v. Commonwealth, 17 Va. App. 585, 592-93, 440 S.E.2d 133, 138
(1994); see also Davis v. Mullins, 251 Va. 141, 149, 466 S.E.2d 90, 94 (1996) (discussing a
court’s authority to correct the record to reflect “‘judicial action which has actually been taken
. . . at the proper time,’” as opposed to action “[the court] might have [taken]” but did not
(emphasis added) (quoting Council v. Commonwealth, 198 Va. 288, 292, 94 S.E.2d 245, 248
(1956))).

                                                  -7-
Humphreys, J., concurring in the judgment.

       I respectfully differ from my colleague, Judge Decker, in that I do not necessarily

conclude that the statement by the trial court that “I’m not going to take it under advisement”

constitutes a clear exercise of the discretionary authority our Supreme Court later granted to the

courts of the Commonwealth in Starrs v. Commonwealth, 287 Va. 1, 752 S.E.2d 812 (2014), to

elect to defer the rendering of judgments.

       I share some of the concerns expressed by Judge Alston. Context is important here. The

trial court’s statement quoted above occurred in the wake of two continuances granted by the

court for the sole purpose of researching whether the state of the law in the Commonwealth at

that time permitted a court to defer a judgment of guilt in a criminal case where such a deferred

finding is not expressly authorized by statute. Moreover, this statement was made immediately

after the trial court stated, “I have a problem whether or not I have authority to do it [defer a

finding of guilt] after he has entered a plea of no contest.” 5 Thus, I agree with Judge Alston that

it is not clear that the statement by the trial court was an informed exercise of judicial discretion.

       However, I see no need to attempt to resolve the point because, in my view, any error on

the part of the trial court that may have existed in this regard would necessarily be harmless as a

matter of law.




       5
          To say that the state of the law on this point as it existed at the time of the hearing in
this case was muddled in the wake of In re Commonwealth’s Attorney, 265 Va. 313, 576 S.E.2d
458 (2003), Moreau v. Fuller, 276 Va. 127, 661 S.E.2d 841 (2008), and Hernandez v.
Commonwealth, 281 Va. 222, 707 S.E.2d 273 (2011), would be an understatement. In Starrs,
decided more than a year following the hearing in the instant case and while it was pending
appeal in this Court, our Supreme Court considered this question: “Upon accepting a guilty plea
and entering it into the record, does a trial court nevertheless retain the inherent authority to
withhold a finding of guilt and defer the disposition?” Starrs, 287 Va. at 4, 752 S.E.2d at 814.
The Supreme Court answered the question in the affirmative because until the trial court has
“entered an order adjudicating guilt, it has not exercised its judicial power to render judgment.”
Id.
                                                  -8-
           In determining whether non-constitutional harmless error exists, we are guided by

Virginia's harmless-error statute, Code § 8.01-678. That statute provides, in pertinent part, as

follows:

                 When it plainly appears from the record and the evidence given at
                 the trial that the parties have had a fair trial on the merits and
                 substantial justice has been reached, no judgment shall be arrested
                 or reversed . . . for any . . . defect, imperfection, or omission in the
                 record, or for any other error committed on the trial.

Code § 8.01-678.

       Code § 8.01-678 is applicable in criminal as well as civil cases. See, e.g., Greenway v.

Commonwealth, 254 Va. 147, 154, 487 S.E.2d 224, 228 (1997). In a criminal case, it is implicit

that, in order to determine whether there has been “a fair trial on the merits” and whether

“substantial justice has been reached,” a reviewing court must decide whether the alleged error

substantially influenced the verdict. If it did not, the error is harmless.

       In Clay v. Commonwealth, 262 Va. 253, 546 S.E.2d 728 (2001), the Virginia Supreme

Court also noted similar language from Kotteakos v. United States, 328 U.S. 750 (1946), in

which the Supreme Court of the United States adopted the standard to be applied in determining

whether non-constitutional error is harmless under the federal “harmless error statute.” That

statute, 28 U.S.C. § 2111 (formerly 28 U.S.C. § 391), which is similar in substance to Code

§ 8.01-678, provides that a reviewing court “shall give judgment after an examination of the

record without regard to errors or defects which do not affect the substantial rights of the parties.”

                 “If, when all is said and done, the conviction is sure that the error
                 did not influence the jury, or had but slight effect, the verdict and
                 the judgment should stand . . . . But if one cannot say, with fair
                 assurance, after pondering all that happened without stripping the
                 erroneous action from the whole, that the judgment was not
                 substantially swayed by the error, it is impossible to conclude that
                 substantial rights were not affected. . . . If so, or if one is left in
                 grave doubt, the conviction cannot stand.”

Clay, 262 Va. at 260, 546 S.E.2d at 731 (quoting Kotteakos, 328 U.S. at 764-65).
                                                   -9-
        In applying the definition of non-constitutional harmless error found in Code § 8.01-678

and as discussed in Clay and Kotteakos, I conclude that any error on the part of the trial court in

connection with deferring a judgment of guilt where no statutory authorization exists to do so,

must necessarily be harmless as a matter of law.6

        In reaching this conclusion, I note that there is no issue that the appellant “received a fair

trial on the merits.” Indeed, he entered a plea of no contest that, like a guilty plea, is “a self-

supplied conviction authorizing imposition of the punishment fixed by law.” Peyton v. King,

210 Va. 194, 196, 169 S.E.2d 569, 571 (1969); see also Hern v. Cox, 212 Va. 644, 646, 186

S.E.2d 85, 87 (1972) (rejecting a habeas corpus petitioner’s claim that the record failed to show a

conviction because the trial court implicitly accepted and entered the petitioner’s guilty plea, as

evidenced by the court’s imposition of punishment). “The effect of the plea of guilty [or no

contest] . . . is a record admission of whatever is well charged in the indictment. . . . It admits all

the incriminating facts alleged and the statutory elements of the offense charged.” Hobson v.

Youell, 177 Va. 906, 912, 15 S.E.2d 76, 78 (1941) (internal quotation marks omitted).

        Moreover, while our Supreme Court has held in Starrs that a court has the inherent

authority to defer judgment and disposition of a case pending before it, this holding does not

grant any substantive rights to a party, including a defendant in a criminal case. While

theoretically, this “inherent authority” of a court to decline to render judgments expeditiously in

the cases before it can be exercised for any reason or no reason at all, it is most often used to

offer the possibility of an acquittal or conviction on a reduced charge, notwithstanding the


        6
         At oral argument, counsel for the appellant suggested for the first time that the error
here was of constitutional dimension by asserting that it violated the due process rights of a
defendant if a judge was unaware that he or she had the authority to defer a judgment of guilt. I
would decline this novel invitation essentially to hold that ignorance of the law regarding the
inherent authority of the court violates due process principles when the result of any lack of
knowledge is actually to provide due process through the rendering of a judgment expeditiously
according to law and the evidence.
                                                - 10 -
evidence and law to the contrary, as a matter of judicial grace in favor of criminal defendants

subjectively deemed by a judge as worthy of the exercise of such grace. However, the

announcement by our Supreme Court in Hernandez and Starrs of inherent authority by a court to

decline to render an expeditious judgment in accord with the law and the evidence provides no

substantive right to any party to require the court to consider doing so. Indeed, when a court

defers its judgment, our Supreme Court has held that “requiring a court or judge to enter a certain

judgment unquestionably infringes upon the exercise of judicial discretion.” In re

Commonwealth’s Attorney, 265 Va. 313, 319, 576 S.E.2d 458, 462 (2003).

        Certainly, a criminal defendant, even one who has entered a plea of guilty, has nothing to

lose by seeking what amounts to a judicial pardon inherent in having the court defer the entry of

a judgment with a view to ultimately dismissing or reducing the charge. Nevertheless, Starrs

cannot be read to confer an obligation by the court to consider doing so. Where no statutory

authority exists for such an action, a defendant in a criminal case should only reasonably expect

and be entitled to have his or her case decided in accordance with their right to a speedy trial and

consistent with both the evidence and the rule of law. Despite the existence of authority for a

court to do so, it would be a bizarre twisting of the Starrs holding indeed to conclude that

somehow a criminal defendant has a “right” to not have his case adjudicated according to law or

conversely, has an affirmative “right” to have a judge ignore his or her duty to promptly

adjudicate matters according to law where no statute authorizes such a course of action.

       In summary, the appellant entered a plea of no contest. Aside from clerical errors in the

sentencing order, the judgment entered here reflects a correct application of the law and the

evidence and the appellant does not assert otherwise. Deferring entry of a judgment under the

conditions present here is purely an act of judicial grace to which the appellant was not entitled

as a matter of law. Finally, any effect on the ultimate verdict of any lack of knowledge on the

                                               - 11 -
part of the trial court regarding its authority to defer the entry of judgment must necessarily be

speculative. The record before us clearly reflects that all of the principles of law and procedure

relevant to reaching a verdict on the charges in this case were applied correctly, and we can

hardly presume that the trial court would have ultimately entered a judgment of acquittal despite

the plea, the law, and the evidence to the contrary. Given the foregoing, assuming without

deciding that the trial court here mistakenly concluded that it lacked the authority to defer a

judgment of guilt notwithstanding a plea of no contest, I conclude that the appellant clearly “had

a fair trial on the merits.” Moreover, these points also compel the conclusion that “substantial

justice has been reached.”7

       For these reasons, I do agree with my colleagues that the decision of the trial court

in this case to decline to defer judgment must be affirmed.8




       7
          Like beauty, “justice” is often in the eye of the beholder. Litigants who fail to prevail
rarely conclude that justice was done. However, though not defined by the statute, the term
“substantial justice” is not a subjective concept. Giving it its plain and ordinary meaning, as we
must, it is “justice fairly administered according to rules of substantive law, regardless of any
procedural errors not affecting the litigant’s substantive rights,” Black’s Law Dictionary 996
(10th ed. 2014). In other words, it is simply compliance with the substantive principles of the
law.
       8
         I also agree that the case must be remanded for the correction of the errors in the
sentencing order.
                                               - 12 -
Alston, J., concurring in the judgment.

        I write separately not necessarily to disagree with my colleagues; they make excellent

points in their respective opinions, but rather to express a concern that I have in light of the

issues raised in this case and many like it.

        Suffice it to say that both trial courts and this Court have struggled with the challenges

raised by the Virginia Supreme Court’s decisions in Hernandez v. Commonwealth, 281 Va. 222,

707 S.E.2d 273 (2011), and more recently in Starrs v. Commonwealth, 287 Va. 1, 752 S.E.2d 812

(2014). For me it is now the (relatively) clear direction of the majorities in both Hernandez and

Starrs that until the trial court has “entered an order adjudicating guilt, it has not exercised its

judicial power to render judgment.” Starrs, 287 Va. at 14, 752 S.E.2d at 820. Thus, it follows

that a trial court, whether there is a statutory predicate or not, may defer disposition of a case

pending some future event. The healthy dialogue between the majority and dissent in these cases

highlights the debatable points raised by this issue, but until other direction, Hernandez and

Starrs remain our primary guiding principles.

        In the instant case, the trial judge engaged in a very deliberate and measured

consideration of what he could or could not do regarding a request to defer disposition in a

delicate matter pertaining to the adjudication of a gun charge involving a young man with no

criminal record. My good colleague writing the primary opinion comes to the conclusion that

the trial judge chose “on the merits” of the request to deny the motion to defer disposition.

Analytically, the primary opinion is very sound and comprehensive. Where I humbly diverge

from the perspective of this opinion is that I find the deliberation of the trial judge in the matter

less clear. For me, quite frankly, I cannot say with any degree of considered certainty from what

perspective the trial judge was ruling. When read in context, one might say that the trial judge

must have decided that he did not have the authority to defer disposition. When viewed from the

                                                 - 13 -
foundation of three days of hearings pertaining nearly exclusively to the subject of the

application of Hernandez, the trial court’s ultimate statement adjudicating the matter is not an

“isolated statement[] of the trial judge taken out of the full context in which [it was] made[.]”

Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977).

       My equally learned colleague writing the concurrence comes to the conclusion that,

assuming without deciding the trial judge erred in light of Starrs (which had not been issued at

the time the trial court made its decision) when it determined that it did not have authority to

defer disposition, that abstract assumed error was nonetheless non-constitutional harmless error.

While providing an interesting analytical framework, I cannot in the context of this case fully

subscribe to a harmless error analysis.9

       The concurring opinion suggests that it is immaterial whether the trial judge wanted to

defer disposition but concluded that it could not. This is where the harmless error analysis in this

matter is not as tidy as would be hoped. Clearly the result would not have been the same if the

trial court wanted to defer disposition but concluded that it could not because under those

circumstances, the trial court would have granted the deferred disposition had it not

understandably, though erroneously, determined that it had no such authority to do so.


       9
           Under a non-constitutional harmless error analysis:

                         “If, when all is said and done, the conviction is sure that the
                 error did not influence the jury, or had but slight effect, the verdict
                 and the judgment should stand . . . . But if one cannot say, with
                 fair assurance, after pondering all that happened without stripping
                 the erroneous action from the whole, that the judgment was not
                 substantially swayed by the error, it is impossible to conclude that
                 substantial rights were not affected. . . . If so, or if one is left in
                 grave doubt, the conviction cannot stand.”

Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731-32 (2001) (quoting Kotteakos v.
United States, 328 U.S. 750, 764-65 (1946)). Thus, the test for harmless error essentially is that
the result would have been the same notwithstanding the error committed by the trial court.

                                                 - 14 -
Accordingly, it cannot be said that the judgment was “not substantially swayed by the error.”

Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 732 (2001). Stated another way; in

my view, the non-constitutional harmless error analysis might theoretically apply in some case

but cannot apply if in this case the trial court wanted to defer disposition but thought that it could

not.

       So where does that leave me in the disposition of the matter? I will simply say that I

concur in the result reached by the primary opinion. The trial judge’s ultimate ruling was clear

on its face. The trial judge said, “I will not defer disposition.” Unchecked by adherence to the

standards of appellate review, my instincts might nudge me in the direction appellant seeks. But

I cannot add to, subtract from, modify, nor adapt these five words to mean something else on the

facts before me. Under Rule 5A:8 the party alleging error has the critical burden to show

through the record that the alleged error occurred. That burden has not been met here. I concur

in the result advanced in the primary opinion.




                                                 - 15 -
