[Posted June 24, 2014] In the past six years, we’ve seen several appellate opinions that discuss the authority of a trial court to defer a disposition in criminal cases. Defense lawyers cling to the notion that trial judges have the discretion to delay judgment and allow an otherwise-guilty defendant to sandpaper his sins; prosecutors persist in asking trial judges to go ahead and rule already.

Three years ago, the legal landscape shook when the Supreme Court decided Hernandez v. Commonwealth, 281 Va. 222, in which the court ruled that a judge can still take a finding under advisement after noting that the evidence was sufficient to convict. Hernandez reversed a CAV judgment that had found no such authority to exist.

In the intervening years, the justices have refined Hernandez at least once, in Starrs v. Commonwealth, 287 Va. 1 (2014). Starrs still left that judicial discretion open, even after a defendant signed a plea agreement that the trial court accepted. In the interim, we’ve seen Court of Appeals opinions that have expressed thinly disguised disdain for the Supreme Court’s rulings on this issue, and the CAV has occasionally ruled against a criminal appellant anyway, citing a perceived crack in the Hernandez doctrine.

Today, a panel of the Court of Appeals unanimously affirms a conviction inHarris v. Commonwealth. When you read the procedural history of the case, you’ll have difficulty figuring out a solid reason why this opinion is published. I see only one such reason: This is yet another shot across the Supreme Court’s bow on this still hotly contested issue.

Harris had, beyond question, been convicted twice of driving after having been adjudicated a habitual offender. He was arrested behind the wheel yet again in Chesapeake in 2012, one of a long string of drivers who evidently just can’t conceive that they might not be allowed to drive.

There was no challenge at trial to probable cause for the stop; nor did the defendant contest the evidence of his guilt, including the two priors. Instead, his lawyer asked the judge to take the case under advisement. He noted that Harris’s suspensions were for failure to pay fines, and he wanted to take a crack at paying off those fines and getting his DMV abstract back to some semblance of normalcy.

Experienced traffic-court lawyers are now wishing him the joy of that job; an abstract like that is a bloody mess that would take major surgery, not some polish around the edges. Still, the lawyer asked the judge to exercise his Hernandez-given discretion to defer matters, to at least allow Harris to try. The prosecutor argued that the judge had no such discretion, since the evidence of guilt was overwhelming and unchallenged. The judge listened to the arguments and said this:

[Appellant] has had at least 11 years to undertake to try to get his fines paid off and have his license restored; and I believe, quite frankly – although I appreciate [defense counsel’s] efforts on behalf of Mr. Harris, I believe his request comes far too late; and, therefore, I am going to deny your request that I take the matter under advisement, but I certainly will note your exception to the Court’s ruling.

Careful readers will note that the judge never affirmatively ruled on the disputed issue of whether he had the power to defer or not; he evidently assumed that he had that power, and simply decided not to defer. This is the ruling that’s at the heart of today’s appeal.

Experienced appellate lawyers know the importance of the standard of appellate review, which I’ve preached is case-dispositive in 80-85% of all appeals. Review for abuse of discretion is fairly lenient; as long as the trial court selects an option that’s within the range of available choices, there’s very little chance of reversal. This ruling by the trial court was, in my view inarguably, within his discretion. That didn’t stop Harris from appealing anyway, but the CAV panel finds that the trial judge acted within his rights in saying no.

If that’s all there were, this would be a routine unpub. Today’s opinion points out, quite correctly, that while a judge may have the discretion to defer, she doesn’t have the duty to do so; that’s a judgment call on her part. From my perspective, I cannot see an appellate court reversing a decision on the merits like this.

But there’s more. This excerpt from the penultimate page of today’s slip opinion furnishes, in my opinion, the reason why this case will land in Virginia Appeals Reports:

. . . we hold that a trial court’s narrow authority to defer a disposition does not in any way diminish its greater duty to render a timely and lawful judgment that faithfully applies the relevant facts and the controlling law. In short, a trial court cannot simply acquit a defendant through an act of judicial clemency (or judicial nullification), where the evidence proves the defendant’s guilt beyond a reasonable doubt and where no statutory authority exists to allow the trial court to dismiss the charge.

This, then, is the latest shot across the Supreme Court’s bow. Commonwealth’s Attorneys across Virginia will cite this language to trial judges for the premise that where the evidence is undisputed and sufficient, they have a duty to convict promptly. Where the only “defense” offered is an appeal for mercy, this language stands for the premise that judges don’t have the authority to refuse to convict. Defense lawyers, in turn, will try to find a way to distinguish their cases from this situation. (In my opinion, the easiest way for them to do that is to mount at least a colorable attack on the prosecution’s evidence. Harris’s lawyer evidently didn’t do that, leading to this black-or-white situation.)

So, is this case headed upstairs? I can foresee that Harris will try. But I seriously doubt that the justices would grant a writ in this case, because the ultimate issue on appeal is unassailable. The Supreme Court might take another case in which the trial judge specifically ruled that he didn’t have any discretion, but that isn’t this case.