COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Dec ker, Judges Petty and Huff Argued at Richmond, Virginia

RYAN ONEAL DAVIS OPINION BY v. Record No. 1193-18- 2 JUDGE GLEN A. HUFF OC TOBER 8, 2019 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF SUSSEX COUNTY Robert G. O’Hara, Jr., Judge Designate Jessica V. Bailey (Jessica B . Mauger, Attorney at Law, on bri ef), for appellant. Craig W. Stallard, A ssistant Attorney General (Mark R. Herrin g, Attorney General; John I. Jones, I V, Assistant Attorney General , on brief), for appellee.
Ryan Oneal Davis (“appellant”) appeals the revo cation of the su spension of his sentences by the Circuit Court of Sussex C ounty (“trial court”). In 1995 , appellant was convicted of malicious wounding and robbery. The t rial court sentenced him to consecutive terms of twenty years’ imprisonment on each charge, but suspended fourteen year s on each charge. In 2006, appellant committed a murder. He was tried in 2008 and convict ed, but that conviction was later overturned in a federal habeas corpus proceeding for ineffectiv e assistance of counsel. See generally Davis v. Mathena, No. 2:12cv92 (E. D. Va. Mar. 27, 20 14). In 2017, appellant was retried and convicted again. I n 2018, after hearing evidence r egarding appellant’s conduct in the course of the murder and his c onduct in prison since his origin al conviction, the trial court revoked the suspension of appella nt’s sentences and imposed the entirety of the twenty-eight years’ imprisonment outsta nding on appellant’s 1995 robbery and malicious wounding convictions. Appellant raises four assignments of error:PUBLISHED- 2 - 1. The trial court erred in de nying appellant’s motion to recuse t he trial judge when the judge’s impartiality could reasonably be questioned because he also presided over the murder trial where the conduct used to justify the revocation w as heard.
2. The trial court erred in refus ing to dismiss the revocation pro ceedings when the circumstances justified a presumption that the proceedings were the result of prosecutorial vi ndictiveness.
3. The trial court erred in de nying appellant’s motion to dismiss the revocation related to the malicious wounding conviction because the revocation procee ding was instituted beyond the time constraints of Code § 19.2-306(B).
4. The trial court abused its discr etion in revoking the entire su spended sentence because that resulted in an excessive s entence under the circumstances. Appellant’s first and fourth ass ignments of error are not suppo rted with sufficient argument and authorities and there fore are waived. Appellant’s second assignment of error fails because, even if the situation warranted a presumption of vindi ctiveness, a presumption of vindictiveness is rebuttable a nd appellant conceded the prosecu tor was not actually vindictive. Appellant’s third assignment of error is without merit because the trial court reasonably interpreted its original sentenc ing orders as suspending the se ntences in the case for the maximum period permitted or allowed by law—appellant’s life. T herefore, this Court affirms.
I. BACKGROUND “This Court considers ‘the evide nce presented at trial in the l ight most favorable to the Commonwealth, the prevailing part y below.’” Hawkins v. Commonw ealth, 64 Va. App. 650, 652 (2015) (quoting Bolden v. Commonwealth, 275 Va. 144, 148 (2 008)). So viewed the evidence is as follows:- 3 - In 1995, appellant was convicte d of malicious wounding and robb ery. On October 4, 1995, in two separate sentencing ord ers arising from the same c ase, the trial court sentenced appellant to twenty years’ imprisonment on each of the two char ges. Each sentencing order suspended fourteen years of eac h sentence “upon the condition t hat [appellant] keep the peace and be of good behavior for the maximum period required by law. ” In 2006, appellant murdered Cherr i Dowell. See generally Davis v. Commonwealth, No. 0615-17-2 (Va. Ct. App. July 17, 2018) . Appellant was initiall y convicted of the murder in 2008. In 2014, the United States District Court for the Easter n District of Virginia granted appellant’s petition for habeas corpus and ordered a new trial on the ground that appellant’s attorney had been ineffectiv e for failing to object to appellan t being shackled while in the presence of the jury. Davis v. Mathena, No. 2:12cv92 (E. D. Va . Mar. 27, 2014). In March of 2017, appellant was retried, by a jury, and again c onvicted of murder. Although he did not preside over appe llant’s first murder trial , Circuit Court Judge Designate Robert G. O’Hara, Jr. presided ove r the retrial. Furthermore, although Judge O’Hara did not recall it, he had also presided ove r appellant’s initial trial and sentencing in 1995 for malicious wounding and robbery. Appellant f iled his notice of appeal with the trial court in the murder case on April 13, 2017. 1 On April 7, 2017, however, before appellant appealed that cas e, the Commonwealth sent a letter to the trial court requesting the co urt initiate revocation proceedings based on the new conviction. The Commonwealth filed a notice informing the court it intended to introduce evidence of appellant’s conduct surrounding the murder, including severa l other unadjudicated crimes appellant allegedly committed at the time. Appellant then move d to recuse Judge O’Hara

1 Appellant’s conviction on the mur der charge was affirmed by anunpublished opinion of this Court. Davis v. Commo nwealth, Record No. 0615-17-2 (Va. C t. App. July 17, 2018).- 4 - because the Commonwealth intended to present some of the same e vidence it had presented at appellant’s retrial over whic h Judge O’Hara had presided. Appe llant argued that Judge O’Hara’s familiarity with the evidence allowed his impartiality to reaso nably be questioned. The trial court denied the motion. Judge O ’Hara noted that the jury, not he, had been the finder of fact in appellant’s murder trial. He stated: The Court has on occasion recused itself, but it generally like s to follow a script that we often do w hen we impanel a jury and ask myself some of those same ques tions we ask jurors. And in doin g that, I did not find indication eit her from my memory or from the record that suggests that I should do so here. He continued by noting that it was hardly uncommon for a judge to see the same defendant multiple times and that he had rarely found it necessary to rec use himself for that reason. Appellant also moved to dismiss the revocation proceedings because he claimed it was a vindictive prosecution intended t o “stifle” his “right to appea l” his murder conviction. He argued it did not matter if the pr osecutor actually intended to retaliate for or deter an appeal, the appearance of vindictiveness su fficed to warrant dismissal. Th e prosecutor argued she had given no thought to appellant’s appeal and only decided to seek revoc ation because of information revealed during the murder tria l showing additional “bad behavi or” on the part of appellant. Appellant then conceded that the prosecutor’s motive was not vi ndictive: Judge, I would just reiterate, and I won’t belabor the point, b ut I would just reiterate I absolut ely believe Ms. Ramsey, that that was not her intent, but the court i n Blackledge [v. Perry, 417 U.S. 21 (1974),] said that it doesn’t matter what her intent is. What matters is the appearance of vindictive ness and the appearance that you ’re attempting to chill a defendant’s right to an appeal, that you are attempting to dissuade them from an appeal for fear of getting more harsher [sic] or additional punishment as a result. The trial court denied the motion. On the day of the hearing, appell ant moved to dismiss the revoc ation proceeding for the suspended sentence on the ma licious wounding conviction. Appel lant argued that the- 5 - proceeding was not instituted within the time limit required by Code § 19.2-306(B). He argued the malicious wounding conviction h ad a maximum potential penal ty of twenty years’ imprisonment and the revocation proceeding had not been initiat ed until more than one year after that twenty years had elapsed. T he trial court took the motionunder advisement and heard the evidence for revocation. After f urther briefing, the trial court denied the motion. At the outset of the revocati on hearing, the Commonwealth infor med the Court it was not going to present the actual murd er conviction, but would instea d present the evidence of appellant’s other unadjudicate d criminal behavior. Appellant, for his part, conceded he was in violation of the good behavior requi rement of the suspension of his sentences and explained the issue was the “appropriate sent ence under the circumstances.” The Commonwealth presented appell ant’s prison records, the test imony of two law enforcement officers regarding their investigat ion of the murde r and surrounding circumstances, particularly appellant’s admissi ons to them, and the transcript of testimony from an earlier proceeding by appellant’s cellmate. That evidence showed appel lant committed numerous infractions in prison, including assault and multiple instances of threatening to kill or harm others. The evidence also show ed appellant’s admissions, to ei ther law enforcement or his cellmate, that he broke into the victim’s home on the night of the murder, stole her car, purchased and used drugs with mone y stolen from the victim that night, and initially lied to police during the investigati on into the victim’s death. The C ommonwealth also introduced evidence that appellant had s tolen nearly $2,000 from the victi m a few months before the murder, for which he had been c harged with grand larceny, altho ugh the charge was eventually nolle prosequied

.- 6 - The trial court found appellantin violation of the conditions of the suspension of his sentences and revoked that susp ension. The trial court imposed all twenty-eight years that had been suspended. This appeal followed.
II. ANALYSIS We begin by addressing the merits of appellant’s third assignme nt of error. Appellant argues the trial court lacked authority to revoke the suspensio n of his sentence on the malicious wounding conviction because the pro ceedings were not initiated within one year of the “maximum period for which the def endant might originally have b een sentenced to be incarcerated” on that charge. Thereafter we will take up appel lant’s second assignment of error in which he argues this Court should apply a presumption that t he prosecutor was vindictive when seeking the revocation of t he suspension of appellant’s se ntences. Since appellant failed to support his first and fourth assi gnments of error with authorit ies, this Court concludes he has waived those arguments as explai ned at the end of this Court’s opinion. First, the trial court had authority to revoke the suspension o f appellant’s malicious wounding sentence because the tria l court reason ably concluded it had originally suspended appellant’s sentence for the maximum period allowable for the c onvictions in that case. Second, even if this Court were to appl y a presumption of vindictivenes s, a presumption of vindictiveness is a rebuttable presumption. Appellant conceded the prosecutor was not vindictive, thus he has waived his argument. A. Authority to Revoke Suspension In his third assignment of error , appellant argues the trial co urt lacked authority to revoke the suspension of his sentence for his malicious wounding convi ction. He concedes the trial court had the authority to revoke the suspension of the sentenc e for his robbery conviction, but he contends that the period of t he suspension of his sentence f or the malicious wounding- 7 - conviction ended more than one year before revocation proceedin gs began. The trial court concluded that its original orde rs created a single lifetime su spension period covering both convictions. This Court defers to the trial court’s reasonable interpretation of its own order and affirms. 1. Standard of Review Under Code § 19.2-306, “[a] trial co urt has broad discretion to revoke a suspended sentence and probation.” D avis v. Commonwealth, 12 Va. App. 81 , 86 (1991). This Court will not reverse the trial court “unl ess there is a clear showing of abuse of discretion.” Keselica v. Commonwealth, 34 Va. App. 31, 35 (2000) (quoting Davis, 12 Va. App. at 86). “However, the

‘ authority of the trial court to revoke [an ] appellant’s suspended senten ce is one of statutory interpretation and presents a pur e question of law, which this Court reviews de novo .” Green v. Commonwealth, 69 Va. App. 99, 103 (2018) (alteration in origina l) (quoting Wilson v. Commonwealth, 67 Va. App. 82, 88-89 (2016)). 2. Analysis Code § 19.2-306 permits a trial court to “revoke the suspension of sentence for any cause the court deems sufficient.” Subsection B, however, requires t hat the trial court proceedings begin within one year of the “pr obation period” or “period of s uspension” specified at the time of the original sentence. Code § 19.2-306(B). If neither period was specified, the default suspension period is the “maximu m period for which the defendan t might originally have been sentenced to be incarcerated.” Id. The trial court issued two separ ate sentencing orders when appe llant was originally sentenced in 1995 for robbery and m alicious wounding. Both ord ers provided that the suspended portion was suspended “for the maximum period required by law.” Appellant argues that because the trial court issued separate sentencing orders and the orders are ambiguous as to how- 8 - long the sentence was suspended f or, the default suspension pro vision applies and a proceeding to revoke the suspension coul d only be initiate d within one yea r after the maximum potential sentence for malicious wounding, w hich is twenty years. The tr ial court concluded that when it wrote “maximum period required by law” it meant that the senten ces were suspended as long as the law allowed. The Commonwealth argues that this Court shoul d defer to the trial court’s interpretation of its own or der. This Court agrees. “[T]rial courts have the authorit y to interpret their own order s.” Fredericksburg Const. Co. v. J.W. Wyne Excavati ng, Inc., 260 Va. 137, 144 (2000). Th is Court “defer[s] to the trial court’s interpreta tion of its own order.” Leitao v. Commonweal th, 39 Va. App. 435, 438 (2002). “That interpretation, ho wever, must be reasonable, and [this Co urt] will ‘apply an abuse of discretion standard.’” B ajgain v. Bajgain, 64 Va. App. 439, 45 3 (2015) (quoting Roe v. Commonwealth, 271 Va. 453, 458 (2006)). Here, the same judge who sentence d appellant originally preside d over the revocation hearing. Although he did not specifi cally recall appellant’s o riginal sentencing, he reviewed the record and knew his general prac tice for issuing orders. In it s letter opinion of May 30, 2018, interpreting the original sente ncing orders, the trial court no ted that both “the robbery and malicious wounding arose out of the same set of facts and circu mstances.” The charges were tried together. The defendant was sentenced for both charges a t the same time and only permitted a single allocution for both charges. The trial cour t noted the original crimes were particularly egregious. Under th ese circumstances, the trial c ourt concluded that—although it issued two sentencing orders—i t intended to suspend the executi on of both sentences for the maximum time permitted by law, which in this case was life. Si mmers v. Commonwealth, 11 Va. App. 375, 378 (1990) (“[A] trial c ourt [may] suspend the ex ecution of a sentence without regard to the maximum period for which a defendant might have b een sentenced, ‘ having due- 9 - regard to the gravity of the offense .’” (quoting Code § 19.2-303.1)). The trial court’s interpretation of its own order wa s not an unreasonable interpr etation. Appellant rejects this interpretation, arguing that because the term “maximum period required by law” is meaningless—as there is not a maximum required susp ension of a sentence—the order was ambiguous as to the period of suspensionand the default suspension period applies. The trial cour t, however, acknowledged that “m aximum period required by law was meaningless.” The trial c ourt concluded that the only thin g it could have meant by that phrase was the maximum period of s uspension that the law allowe d, which was life for the appellant’s convictions of robbery and malicious wounding. 2 That conclusion is not

2 Grammatically, the trial court’ s original act of writing “the maximum period required by law” is understandable. The phr ase “maximum period required by law” does not modify the suspension period directly. The phr ase modifies the condition of suspension that defendant “keep the peace and be of good behavior.” By defining the peri od of good behavior, the phrase indirectly defines the period of suspension, but because it doe s so indirectly, it made a more legally correct phrasing sound awkwa rd. The law always allows good behavior, so to write that a defendant must “be on good behavior for the maximum period al lowed by law” would sound strange, even if it would be leg ally precise. This grammatical nuance gives credence to the trial court’s interpretation that it meant “maximum period allowed by law” when it wrote “maximum required by law.”- 10 - unreasonable. 3 Thus, the trial court correctly concluded i t still had the au thority to revoke the suspension of appellant’s sente nce on the malicious wounding ch arge. 4
B. Vindictive Prosecution In his second assignment of error, appellant argues that the re vocation of the suspension of his sentences violates the Due Process Clause of the United States Constitution because the timing of the initiation of the revocation proceedings demonstr ates it was a vindictive prosecution designed to dissuade him from exercising his appeal rights in his murder case and to increase his punishment for tha t murder conviction. He argues that because the prosecutor did not seek revocation of the suspe nsion of his sentence following his first murder conviction in 2008, when the prosecutor sought re vocation immediately followi ng his second conviction, the prosecutor gave the appearance of vindictiveness. He also cont ends that because the revocation proceeding was initiated before he filed his notice of appeal i n the murder case, the revocation proceeding was calculated to discourage him from exercising tha t appeal right. Nevertheless,

3 Even if the trial court erred i n interpreting its original sen tencing orders, the trial court still had jurisdiction to revoke the suspension of appellant’s sentence on the malicious wounding charge. Code § 19.2-306 grants the trial court authority to re voke the suspension of a sentence “[i]n any case .” Thus, even if the default su spension period applied, the “m aximum period for which the defendant might original ly have been sentenced to be incarcerated” would include the maximum sentence for all the convictions in his “case.” What d efines a single “case” from which to aggregate maximum poten tial sentences may be a difficu lt question, but resolution of that issue can be largely resolve d from the Supreme Court Rules regarding joinder of charges. See Rule 3A:6(b). Here, appell ant’s robbery and malicious woun ding convictions arose out of a common factual circumstance and w ere tried in a single trial. Thus, together they are the “case” which defines the “maximum period for which the defendant might originally have been sentenced.” Because he faced a maximum of a life sentence for the robbery conviction, even if the trial court’s conclusion t hat it had originally suspended h is sentences for life were wrong, the default suspension for both cha rges in the case would have beenfor appellant’s life.

4 Although this Court affirms base d on the trial court’s reasona ble interpretation of its own orders, this Court notes th at trial courts possess the abil ity to avoid these issues altogether. If the suspension of the senten ce for two convictions were cont ained in a single order, instead of two, there would be little question that the trial court intend ed a single period of suspension unless the language was explicit to the contrary.- 11 - appellant conceded the prosecu tor was not actually vindictive. Because any presumption of vindictiveness, assuming without deciding one applies, is rebut table, his concession waives the argument. 1. Standard of Review “We review a trial court’s f actual findings on prosecutorial vi ndictiveness for plain error, but we review its legal analysis de novo .” Barrett (Clark) v. Commonwealth, 41 Va. App. 377, 392 (2003), aff’d, 268 Va. 170 (2004). 2. Analysis “It is well established that th e choice of offenses for which acriminal defendant will be charged is within the discreti on of the Commonwealth’s Attorney .” Kauffmann v. Commonwealth, 8 Va. App. 400, 410 (1989) . “Indeed, ‘the institution of criminal charges, as well as their order and timing, a re matters of prosecutorial di scretion.” Barrett (Clark), 41 Va. App. at 391 (quoting Bradsha w v. Commonwealth, 228 Va. 484, 492 (1984)). Nevertheless, “for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on hi s legal rights is ‘patently unconstitutional.’” Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978). “It is now well established t hat the ‘imposition of a penalty upon the defendant for having succe ssfully pursued a statutory right . . . or collateral remedy would be . . . a violation of due pr ocess of law.’” Battle v. Commonwealth, 12 Va. App. 624, 628-29 (1991) (quoting North C arolina v. Pearce, 395 U.S. 711, 724 (1969)). Thus, if a defendant can demonstrate a ch arging decision was vindictive, t hat is “that the prosecutor’s charging decision was motivate d by a desire to punish him for d oing something that the law plainly allowed him to do,” due pr ocess forbids conviction on t he vindictively motivated charges. Id. at 629.- 12 - At trial, appellant conceded tha t the prosecutor’s motive was n ot vindictive. Instead, he argues that this Court should apply a presumption of vindictive ness like the United States Supreme Court applied in Blackle dge v. Perry and North Carolinav. Pearce. Appellant’s concession is fatal to his argument. In United States v. Goodwin, 457 U.S. 368, 376 n.8 (1982) (quot ing Blackledge, 417 U.S. at 29 n.7), the Supreme Court noted that the government co uld overcome a presumption of vindictiveness “by objective evid ence justifying the prosecutor ’s action” such as showing “‘it was impossible to proceed on the m ore serious charge at the out set.’” Moreover, in Barrett (Clark), the trial court refus ed to dismiss new charges broughtafter a successful appeal. This Court assumed, without deciding, a presumption of vindictivenes s applied but nevertheless affirmed the trial court’s deci sion that the prosecutor has pro vided sufficient justification to overcome any presumption of vindi ctiveness. 41 Va. App. at 398 . Thus, by conceding that the prosecutor was not actually vi ndictive—“I absolutely believe . . . that was not her intent”— appellant waived any argument a bout prosecutorial vindictivenes s. Even assuming that a presumption would apply in a circumstance like appellant’s, app ellant’s concession rebuts the presumption. Therefore, this Court will affirm.
III. PROCEDURAL DEFAULT In his remaining assignments of error, apppellant argues Judge O’Hara erred when he refused to recuse himself from c onsidering the revocation of th e suspension of appellant’s sentences because the evidentia ry basis for revocation would be the same as much of the evidence presented in appellant’s murder trial, over which Judg e O’Hara presided. Appellant claims that Judge O’Hara’s familiarity with the evidence to be heard establishes that his impartiality could reasonably be questioned, thus necessitating recusal. Appellant also argues that the evidence presented a t the revocation hearing did not j ustify imposing the entirety of- 13 - appellant’s suspended sentences and doing so was “completely un just.” This Court will not consider either argument because appellant does not support his argument with authorities. A. Recusal of Judge O’Hara In his first assignment of error , appellant argues that Judge O ’Hara should have recused himself from considering the rev ocation of the suspension of ap pellant’s sentence because Judge O’Hara presided over appellant’s m urder trial. During the murd er trial, the Commonwealth presented much of the same evidence that it presented at appell ant’s revocation hearing. Appellant argues that because Judge O’Hara heard the evidence a nd ruled on admissibility questions during the murder tria l, his impartiality could reaso nably be questioned. He cites Canon 3 E(1) of the Canons of Judicial Conduct for the Commonwe alth of Virginia to suggest that Judge O’Hara should have recused himself because his impartiality could reasonably be questioned. The Supreme Court has repeatedl y held that a trial judge is not required to automatically recuse himself merely because he “is familiar with a party and his legal difficulties through prior judicial hearings.” Deahl v. Win chester Dep’t of Soc. Servs., 224 Va. 664, 672-73 (1983) (quoting Barry v. Sigler, 373 F.2d 835, 836 (8th Cir. 1967)); s ee also Prieto v. Commonwealth, 283 Va. 149, 163-64 (2012) (holding atrial judge did not need to recuse himself from the defendant’s second capital murde r trial, even though the judge had used emotional language when delivering the death sentence in the first trial before th at conviction was reversed on appeal). Neither “the previous imposition of the death penaltyagainst a given defendant” nor “the formation or expression of an opinion as to the guilt of t he accused based on information acquired during judicial proceedings ,” were grounds for automat ic recusal of the trial judge. Prieto, 283 Va. at 164-65 (citi ng Justus v. Commonwealth, 222 V a. 667, 673 (1981), and Slayton v. Commonwealth, 185 Va. 371, 376 (1946)).- 14 - This Court will not consider appellant’s argument because he wa ived it under Rule 5A:20. “Rule 5A:20(e) requires th at appellant’s argument ‘incl ud[e] principles of law and authorities.’” Ducharme v. Commo nwealth, 70 Va. App. 668, 674 (2019) (alteration in original). “The appellate court is not a de pository in which the appellant may dump the burden of argument and research.” Fadness v. Fadness, 52 Va. App. 833, 850 (2008)

. Here, appellant argues, without s upporting legal authority, tha t Judge O’Hara’s familiarity with the evidence to be presented allowed his impar tiality to “reasonably be questioned.” Appellant does not, ho wever, address the controll ing precedent that normally permits a judge to preside ove r a case despite having knowledge from other judicial proceedings of the defendant and his legal pr oblems. Indeed, appellant cit es no authority other than Canon 3 E(1). Appellant’s “failure t o provide legal argument and aut hority as required by Rule 5A:20 leaves [this Court] without a l egal prism through which to view his alleged error.” Bartley v. Commonwealth, 67 Va. App. 740, 746 (2017). Therefore, his argu ment is waived under Rule 5A:20 and this Court wi ll not consider it. B. Length of Imposed Sentence In his fourth assignment of error , appellant argues that the tr ial court abused its discretion by imposing the full twenty-eight years’ imprisonment remaining on appellant’s suspended sentences. Although he concedes he was in violation of the ter ms of his suspended sentences, he argues that it was a “complete i njustice” to impose the entire suspended sentences. As with his first assignment of error, howev er, appellant cites no authority to support his argument. He has thus waived this assignmen t of error under Rule 5A:20.
IV. CONCLUSION Appellant failed to present auth orities in support of his firstand fourth assignments of error. He has therefore waive d them, and this Court will not c onsider them. Appellant conceded- 15 - the prosecutor was not motivate d by actual vindictiveness. Any presumption of vindictiveness is a rebuttable presumption, and the refore, appellant’s concession waived any claim for prosecutorial vindictiv eness. Therefore, the Court rejects his second assignment of error. Finally, the trial court reasona bly interpreted its own sentenc ing order to suspend appellant’s sentence for his entire life. T herefore, the trial court had authority to revoke the suspension of appellant’s sentence for th e malicious wounding conviction. Th erefore, this Court affirms. Affirmed.