Petition for Writ of Certiorari — Quintin I. Brown, Petitioner v. Virginia

C=y

No.

IN THE

U:

S.'S3

SUPREME COURT OF THE UNITED STATES

QUINTIN IRVTNG BROWN

— PETITIONER

(Your Name)

Supreme Court, U.S.

FILED

vs.

C0tgj<gi9v^akfck.-;grfi Virginia— respondent(S)

MAY 1 \ 2020

office OF THE CLERK _

ON PETITION FOR A WRIT OF CERTIORARI TO

—— ------------

SUPREME COURT OF VIRGTNTA______

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

-Ouintin Irving Brown

(Your Name)

Dillwyn Correctional Center

P-O- Box 670 / 1522 Prison Road

(Address)

Dillwyn. VA 23936-0670

(City, State, Zip Code)

(434) 983-4700

(Phone Number)

QUESTION(S) PRESENTED

r, DID the COMMONWEALTH of VIRGINIA IWAl court i)£MV

MR.13ROWU H'S COMSTltTUTIbWAL RIGHT TO JURY TRIAL ON Ttffc

MVSOEIAEAMOR CHARGES OP ReCJ&WtWC STOLEN PROPERTY

AND

PALSE lOENTi PlCAf»OKS AT T ER.”" p ei_Q NY—COKW i OTTO NT—W&R&SE T

AS^DE?

JX. DVO the

COMMONWEALTH OP

(v\r. 0R.OVJN'S

CONST ITOT tONAU

ANO l£^UAU

attea awarding

APPELLATE COURT V»OLAJ6

RIGHTS IN ROUNC tIbio 48 /M7*0

ORDERS OP THE TRIAL

THE R.E'S6NT£NC.lNG

qP uAW

VVRGiNiA

Court WITHOUT 006 PRICES*

PROTECTION OP the laws

V-UTHOOT A HEAR*«G

A VsifOTOe CEATloRAfU?

J

ili

LIST OF PARTIES

All parties appear in. the caption of'the ease on~tlxe~Tgoyer~page:—1

------1

r ^__CITY OF RICHMOND and COMMONWEALTH OF VIRGINIA

[ ] All parties do not appear in the caption of the case on the cover page. A list of

a 1 parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

2

TABLE OF CONTENTS

OPINIONS BELOW

1

JURISDICTION

■nnrmnvi'inT

Trrri'iTivBTti

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

3

STATEMENT OF THE CASE

.4-

REASONS FOR GRANTING THE WRIT

CONCLUSION

25

i

INDEX TO APPENDICES

APPENDIX A

.

Febru.3-«~y

APPENDIX B

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APPENDIX C

APPENDIX D

ZS^L^lB

APPENDIX E

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APPENDIX F

-21

€i\

i

table of authorities cited

CASES

Sh*r«^ V.

V;ri,n,v

Stow, 35C. u.s. 3fcg „0/1Jn) PAGE NUMBER

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C-iQs^y

Vl^Wt Code § 19,2 -il

ViVj?rt;vC©«U §

V.VyrT,* Cade § 18,Z- 1 gG. 3

STATUTES AND RULES

4

V'r3>^‘^ Code §4C,2.-£13

Vir9miv Code § 4-G.2.-Sl7(B)

17

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5 wpr-e/ne C.©u»-t £>£

Rule

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13,18

13

OTHER

In 1958, Justice Frankfurter

stated what I interprete as "The

integrity

of the Commonwealth Of Virginia has been

abridged, revoked or diluted. *■

S heon^ v. AW-W

C^W^)

iv

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[ ] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

to

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

to

[ ] reported at

I or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix Jk___to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

Iyf is unpublished.

The opinion of the KlgUgh ahaf-c ccwt, PaUU&n,

Myth Of dar-bvorawv 0ir^. n-h=>/-\

appears at Appendix

__ to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[*f is unpublished.

1.

JURISDICTION

[ ] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was

[ ] No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of

Appeals on the following date: ____________

and a copy of the

order denying rehearing appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including_____________ ,____ (date) on

(date)

in Application No.

A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was February

A copy of that decision appears at Appendix A

.

.

[v/Ta timely petition for rehearing was thereafter denied on the following date:

------ , and a copy of the order denying rehearing does not

appears at Appendix

\yfAmqatenCTon of time IcEfifeg^fee petition for

a writ of certiorari was granted

to and including AujLV<t 12 ^ £01$ (date) on --------------------- (date) in staAe

Application No. __ ,1 iqoT?4The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

z

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

r

The Bill Of Rights of the Constitution of the United States Of America

United Stages C,Or,$4'itciddon

Pive

Onited

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SL^bei C.o rv&Vi'b uut»On A me.rvd'vl«Jii, Nm-e

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£-fc-*.-fce.s Cons'ki'fcujblen A'n^vne'd:' Foj Clxu-ie.

3

STATEMENT OF THE CASE

Monday, June 22, 2015, Quintin Irving Brown wais arrested on 3 felony

charges and 3 misdemeanor traffic offenses in the City Of Richmond,

Virginia. On July 28, 2017, he was convicted of all offenses. Prior

to trial, Brown mailed a Motion For Withdrawal Of Counsel/(And For)

Speedy Trial to the Circuit Court requesting withdrawal of counsel

and for trial before the expiration of state statutory speedy trial

code § 19.2-243, by July 1, 2017 that was filed June 14, 2017.

Within 21 days of conviction, Brown filed pro per motions to set

aside the judgment signed February 20, 2018, and counsel went to

another job at the City Attorney’s Office. Another court-appointed

counsel made appearance at the March 13, 2018 Hearing of the Motion

To Set Aside before a replacement judge not familiar with the

cases,

and there was a rescheduling of the cases for April 23 , 2018. At the

April 23, 2018 Hearing counsel conceded Brown's speedy trial rights

without his consent, in an act of ultimate betrayal to his disbelief.

The Motion To Set Aside was granted on the other issues, and without

retrial (by jury) the misdemeanor charges became 5 misdeanors instead

of three, yet 3 years supervised probation/suspended sentences were

imposed on each of the two new misdemeanor-reduced charges exceeding

the maximum state statutory code 12 maximum imposable (§ 18.11).

When heard by the Supreme Court Of Virginia, the record had been

falsified to show that trial occurred on June 28, 2017, when in

actuality trial occurred on July’28, 2017.

Brown has an estimated release date of July 28, 2020; however,

if his credits were properly calculated Brown would be eligible for

release on JULY 28. 2019, (NEXT MONTH).

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NATURE OF THE CASE AND MATERIAL PROCEEDINGS BELOW

Quintin Irving Brown, hereafter “Mr. Brown,” was charged with one

count of felony false identification, second or subsequent offense, CR15F5106; one count of felony eluding a law enforcement officer, CR15F-5107;

one count of felony receiving stolen property CR15F-5052; and numerous

traffic misdemeanors and infractions.2 Mr. Brown’s trial was ultimately set

for July 28, 2018, before the Honorable Judge C.N. Jenkins, Jr., of the

Richmond City Circuit Court.

Prior to trial on July 28, 2018, Mr. Brown filed a motion to quash the

false identification indictment, alleging it was brought by faulty procedure

through the General District Court, instead of the Juvenile and Domestic

Relations Court. This trial court granted the motion to quash, and quashed

the indictment for false identification, second or subsequent at that time.

Following a trial on the remaining counts Mr. Brown was convicted, and a

sentencing hearing was set.

/

On September 5, 2017, Mr. Brown was re-indicted with false

identification, second or subsequent offense, CR17F-32Q1. This indictment

2 The traffic infractions included failing to obey a highway sign, failing to

obey a traffic signal, and a misdemeanor charge of driving with a

suspended driver’s license. Those convictions are not challenged in this

appeal.

alleged the same crime as the indictment quashed prior to trial on July 28

2017. This second indictment was set for trial prior to sentencing on

January 30, 2018.

OnJanuary"3f3;i2018,theHonorableJudge6.N;Jenkins;Jr.

presiding, Mr. Brown was convicted of the false identification second or

subsequent offense. Mr. Brown was then sentenced on all charges. The

trial court sentenced Mr. Brown to a four-year active sentence on the

eluding charge; a five year all suspended sentence on the felony receiving

stolen property charge; a five year all suspended sentence on the false

identification, second or subsequent charge; and a ten day active sentence

on the driving on a suspended license charge. Mr. Brown received fines on

the remaining traffic infractions. The final sentencing orders in all cases

were entered on February 20, 2018.

On March 13, 2018, both sentencing orders were stayed and

suspended, pursuant to Rule 1:1 of the Rules of the Supreme Court of

Virginia. Mr. Brown filed a motion to set aside the verdict pertaining to his

felony receiving stolen property and false identification convictions. These

motions were heard, and granted, by Judge Jenkins on April 23, 2018,

reducing both felony convictions to misdemeanors convictions. A re­

sentencing order was then entered on June 13, 2018, reflecting these

6

' reductions. Mr. Brown was sentenced on these two, new, misdemeanor

convictions to 12 months all suspended on each offense. Mr. Brown now

appeals his convictions to this Court.

STATEMENT OF FACTS

a. July 28, 2017 Trial: Eluding, Receiving Stolen Property, Traffic

Offenses

On June 22, 2015, Capital Police Officer Andrew Sentipal observed a

vehicle in the left-hand turning lane at the intersection of North 14th Street

and Broad Street in the City of Richmond. TT at 16. Normally, there is an

noU-turn sign on the median dividing the six lanes of Broad Street, but at

the time of the stop the sign was damaged and attached to a sawhorse

where the permanent sign should be. TT 17-18. Officer Sentipal observed a

vehicle a car length in front of him in the left lane of this intersection make a

U-turn at the red light. TT 18. Mr. Brown was later determined to be the

driver of this vehicle. TT 18, 24. Officer Sentipal had a vehicle camera, or a

“dash-cam,” running that day and that was submitted as Commonwealth’s

Exhibit #2 at trial. TT 19, 34.

Officer Sentipal initiated a traffic stop, and Mr. Brown promptly pulled

over right before the on-ramp to Interstate 95. TT 18, 36. When Officer

Sentipal asked him for his license and registration, Mr. Brown told the

officer he had neither his license nor registration with him, but he provided

l

the officer with the name “Willy James,” along with a birth date and a Social

Security number. TT 25.

When Officer Sentipal went back to his car to verify the information

Mr. Brown provided; Mr: Brown drove away onto Interstate 95; TT 25.

Officer Sentipal activated his emergency equipment, including his sirens

and emergency lights, and pursued Mr. Brown for several miles on the

interstate. TT 26. There was heavy traffic on Interstate 95, in the City of

Richmond. TT 27. But the traffic lightened as the pursuit continued into

New Kent County on Interstate 64. TT 27.

Officer Sentipal described Mr. Brown’s driving during the pursuit as

“reckless.” TT 27. The officer also testified that during the pursuit Mr. Brown

had committed multiple lane change violations and occasionally drove on

the shoulder of the interstate. TT 27. According to Officer Sentipal, the

pursuit caused other motorists to move out of the way, and Mr. Brown had

cut off some people since they were not moving out of the way. TT 41.

However, Officer Sentipal also testified that he believed most people were

getting out of the way “because of [his] lights and sirens.” TT 41. Officer

Sentipal did not know the speed of the pursuit because he was focused on

the road. TT 28. Officer Sentipal only testified to a speed of 120 miles per

hour when the pursuit was on Interstate 64, which he had previously

8

'

testified to was in New Kent County. TT 28. Officer Sentipai further clarified

the lane changes, “and all that stuff,” were in Henrico. TT 28-29. The dashcam video shows Mr. Brown’s vehicle changing lanes on Interstate 95, and

using the shoulder ofthe Toad7'but_does“Tiot_show high rates of speed, or

vehicles slamming on brakes to avoid Mr. Brown. Commonwealth’s Exhibit

#2.

After a fifteen-minute pursuit, Mr. Brown voluntarily pulled over on

Interstate 64 in New Kent County and exited his vehicle with his hands up.

TT 29. Officer Sentipai handcuffed and arrested Mr. Brown, and conducted

a search of his person and vehicle with Officer Mulheim. TT 29. Inside the

vehicle were three sets of license plates, two of which were temporary

paper tags and the other a set of real permanent plates. TT 31. The license

plates were in the backseat and trunk of the vehicle. TT 38. The vehicle

itself was messy inside. TT 40. The owner of the vehicle also found trash

bags of mail and bank statements belonging to Mr. Brown in the trunk of

the vehicle. TT 44. There were also two wallets found on Mr. Brown’s

person—one belonging to him, and the other belonging to Willy James,

whom Officer Sentipai later learned was Mr. Brown’s brother. TT 30. Officer

Sentipai returned Mr. Brown’s wallet, but seized Willy James’s wallet as

well as the license plates not registered to Mr. Brown. TT 31-32. There did

9

not appear to be any signs of tampering inside the vehicle. TT 31. Officer

Sentipal recovered the key to operate the vehicle once Mr. Brown was

detained. TT 40.

~ “Officer SentipalTan a llT)f the'license plates and'found thetwcsets of

temporary tags came back clear, but the set of permanent plates belonged

to a vehicle reported stolen on June 4, 2015. TT 31. The plates physically

on on the vehicle were registered to Mr. Brown. TT 39. Officer Sentipal also

ran Mr. Brown’s driving record and noted multiple driving convictions, with

at least three driving while suspended convictions. TT 32. Mr. Brown’s

driving record was introduced, without objection, as Commonwealth’s

Exhibit #1. TT 33. Officer Sentipal proceeded to cross-reference the VIN

associated with the permanent plates, found inside of the car that were

connected to a stolen vehicle, with the VIN of the vehicle Mr. Brown drove.

TT 32. He found that the VINs matched. TT 32. The vehicle, a 1992 or

1993 Toyota Camry, belonged to a Joshua Meyers. TT 43.

b. January 30, 2018 Trial: Identity Theft

The case tried on January 30, 2018 concerned the charge of identity

theft (second offense) against Mr. Brown. Trial Transcript 1/30/20183 at 5.

References to the trial transcript of January 30, 2018 will hereafter be “Tr

1/30/2018 at

, and to the trial transcript of April 23, 2018 will be “Tr.

4/23/2018 at

When Officer Sentipal approached Mr. Brown’s vehicle following his

pursuit, he asked Mr. Brown for his license and registration. Tr. 1/30/2018 at

15-16. Mr. Brown informed the officer that he did not have his license or

“

registratiom7butth#?‘fi1smame_was_I‘WillyTJames”witlradate"ofbirthofJuly

12, 1938 and provided a Social Security number that the officer was later

able to link to Mr. Willy James. Tr. 1/30/18 at 17. Once Mr. Brown was

arrested, the officer asked what his real name was, at which point Mr.

Brown provided the name of Quintin Irving Brown. Tr. 1/30/18 at 18.

Following Officer.Sentipal’s testimony, the Commonwealth moved to enter

a certified copy of his prior identity fraud into evidence. Tr. 1/30/2018 at 19.

Over Mr. Brown’s objection, the Court entered the certified document into

evidence. Tr. 1/30/2018 at 19-20. The trial court found Mr. Brown guilty of

identity theft to avoid arrest, second offense, in violation of Va Code § 18.2186.3, subsection D. Tr. 1/30/18 at 24.

On April 23, 2018, Mr. Brown argued a motion to set aside his felony

convictions for receiving stolen property and felony false identification. Mtn.

Set Aside, filed 4/12/2018. These motions were conceded by the

Commonwealth, and the trial court entered new findings of guilt for

misdemeanor offenses of receiving stolen property and misdemeanor false

ileach'o« .

Tr,

g..

id

REASONS FOR GRANTING THE PETITION

1. Petitioner Quintin irving Brown, Virginia prisoner number 1146667

would be released from imprisonment

26^9instead of the July 28, 2020 estimated release date, if the State

Of Virginia Department Of Corrections would correctly compute the

setneces imposed (4 years, 10 days-^-Richmond; time served (179

days--Portsmouth-,concurrent with Richmond; and 90 days served in

New Kent (18-9447 of this Court) without jurisdiction).

2* Petitioner was rendered inadequate, incompetent

ineffective

assistance of counsel and denied the opportunity to self-represent

at trial when dissatisfied with counsel.

3. The Commonwealth Of Virginia's integrity has been abridged , revoked

and diluted by deceit, deception, misrepresentation, extrinsic and

intrinsic fraud by exceeding the maximum sentences imposed by law

and violating its own speedy trial rights statutes §§ 18.2-11 and §

19.2-243 of Virginia Code.

4. The misdemeanor charges

imposition of 3 years suspended time and

supervised probation exceeds the maximum. 12 months authorized by

law for Commonwealth Of Virginia statutory law § 18.2-11 of the

Code Of Virginia 1950.

5. The proper crediting of the sentences would entitle the petitioner

to release from incarceration within the next month and a half on

JULY 29, 2019, rather than the present estimate of July 28, 2020

because the record does not speak the truth.

6. The judgment of the City Of Richmond Circuit Court was void ab

initio and coram non judice because the Court was

without authority

to try the cases outside of prosecutorial limitations ststed in

state statutory law.

VL

ASSIGNMENTS OF ERROR

The trial court erred in finding Mr. Brown guilty of receiving

stolen property as there was insufficient evidence that Mr.

Brown knew the vehicle he was driving was stolen.

This issue was preserved by Mr. Brown’s Motion to Strike, Trial

Transcript 7/28/20181 48-50, denied by the trial court, TT 52; and

by Mr. Brown’s Renewed Motion to Strike, TT 55-56, 57-59,

denied by the trial court, TT 62.

II.

The trial court erred in finding Mr. Brown guilty of felony

eluding as there was insufficient evidence that Mr. Brown

drove in a manner that interfered with, or endangered, the

operation of the law-enforcement vehicle or a person, in the

City of Richmond.

This issue can be heard by this Court under the ends of justice

exception to Rule 5A: 18.

III.

The trial court erred in convicting Mr. Brown of lesserincluded misdemeanor offenses of receiving stolen property,

and false identification, following Mr. Brown’s Motion to Set

Aside the Verdict without determining if Mr. Brown knowingly,

and intelligently, waived his right to a jury on those two, new

misdemeanor offenses.

This issue can be heard by this Court under the ends of justice

exception to Rule 5A: 18, or- Rude.$:2.$,

1 References to the trial transcript for July 28, 2018 will hereafter be

referred to as “TT .”

U

identification.

Tr.

4/23/2018

at 6-8;

Re-Sentencing Order,

entered

6/13/2018.

ARGUMENT

I. There was insufR^i#ift%vidence Mr. Brown knew the car he was

driving was stolen.

STANDARD OF REVIEW

This Court reviews a challenge to the sufficiency of the evidence in

the light most favorable to the Commonwealth, giving them all reasonable

inferences. Higginbotham v. Commonwealth, 216 Va. 349, 353, 218 S.E.2d

' 534, 537 (1975). But this Court must reverse the conviction if it is “plainly

wrong or without evidence to support it.” Id.

ARGUMENT

The Commonwealth failed to prove Mr. Brown knew the vehicle he

was driving was stolen. In order to convict Mr. Brown of receiving stolen

property the Commonwealth was charged with proving that Mr. Brown did

unlawfully receive the vehicle, “knowing that the property had been stolen.”

R. at 82 (Indictment); Shaver v. Commonwealth. 30 Va. App. 789, 800, 520

S.E.2d 393, 399 (1999). Guilty knowledge is an essential element of

receiving stolen property. This requires actual knowledge, not constructive

knowledge, that the goods received were stolen. Lewis v. Commonwealth.

225 Va. 497, 503, 303 S.E.2d 890, 893 (1983). As there was no admission

i4

by Mr. Brown he knew the vehicle was stolen, this actual knowledge must

necessarily be proved by circumstantial evidence. Id. Circumstantial

evidence is only sufficient when it “exclude[s] every reasonable hypothesis

except that of guiir^vefrat 801, 520 S.E.2d at 399.

In this case, the Commonwealth could not rely on any “recent

possession” presumption regarding Mr. Brown’s knowledge of the vehicle

as stolen as the vehicle was stolen ten days prior to when Mr. Brown was

found in possession of it. TT 42. Mr. Brown was not in possession of the

stolen vehicle “within hours of its theft.” Bynum v. Commonwealth, 23 Va.

App. 412, 420, 477 S.E.2d 750, 754 (1996) (noting the defendant’s

possession of the stolen vehicle “within hours of its theft” was significant

circumstantial evidence to prove he had guilty knowledge of the vehicle as

stolen). Or even with a few days of the theft, but rather ten days after the

fact. TT 42.

There is also no evidence in the record that Mr. Brown purchased the

vehicle in a suspicious manner. In Shaver v. Commonwealth, the defendant

stated that he purchased the all-terrain vehicle (ATV) for a “patently low

price.” ]d at 801, 520 S.E.2d 393 at 399. This Court held that these facts

supported the inference that the defendant knew the property was stolen.

Id. Here, there is no evidence about how Mr. Brown came into possession

15

of the vehicle, or that he acquired the vehicle by circumstances that should

have made him believe the vehicle was stolen. There was no damage to

the car, other than it being rather old. There was also no indicia on the

vehicle itself that if hatf'been stolen. Cf. Snow v. Commonwealth. 33 Va.

App. 766, 776-777, 537 S.E.2d 6, 11 (2000) (noting popped ignition of the

stolen vehicle as factor establishing defendant’s guilty knowledge that

vehicle was stolen). In fact, Mr. Brown had a key to the vehicle that was

recovered by the officer at the scene. TT 40. This certainly indicated Mr.

Brown believed he was in rightful possession of the vehicle.

The trial court relied on three circumstances to find Mr. Brown knew

the vehicle he was driving was stolen: that he was in possession of the

vehicle, the license plates and mail in the vehicle, including those belonging

to Mr. Brown, and the fact that Mr. Brown evaded the police. TT 65-66.

However, these circumstances do not exclude the reasonable hypothesis

of innocence that Mr. Brown did not know the vehicle was stolen: Mr.

Brown’s actions in eluding police could just as likely be because he lacked

a valid driver’s license and/or had not registered the vehicle. And the

presence of Mr. Brown’s own items—including license plates and mail—in

the vehicle is as consistent with his innocence as it is with any alleged

knowledge of the stolen status of the vehicle.

116

The fact that Mr. Brown attempted to evade police is not dispositive

that he knew the vehicle he was driving was stolen. Mr. Brown’s multiple

driving convictions suggest that it could be just as likely, if not more so, that

he fled to avoid aftother conviction for driving with a suspended license.

This hypothesis of innocence is supported by the fact that when Mr. Brown

initially complied with the traffic stop, Mr. Brown provided the name and

identifying information of his brother, Willy James. TT 30. This supports an

inference that Mr. Brown provided this erroneous information because he

knew he did not have a valid driver’s license, and was attempting to avoid a

new arrest for his driving violation by relying on his brother’s identifying

information. This is a reasonable hypothesis of innocence that is not

excluded by the circumstantial evidence in the case. Additionally, there is

also the possibility Mr. Brown evaded police because he had license plates

on the vehicle not connected to that vehicle— a traffic infraction.4

The presence of the license plates themselves, in the vehicle, and

affixed to the vehicle, also fail to be dispositive of whether Mr. Brown had

guilty knowledge about the car being stolen. Since there are no facts as to

when Mr. Brown received the car, it could also be the case that Mr. Brown

simply failed to timely register the car in his name. It could also be the case

4 Virginia Code §46.2-613 renders it a Class 2 misdemeanor to affix license

plates issued for another vehicle.

1-T

in

that Mr. Brown couldn’t afford the DMV’s registration fee, given his

indigency.5 This would explain the license plates being registered to a

different vehicle, and the use of old plates on the car itself.

The fact that Mr. Meyers’s license plates were inside of the vehicle’s

trunk is also not necessarily indicative of guilty knowledge. Considering the

vehicle’s age and condition and the time between the theft and Mr. Brown’s

arrest, it is not unlikely to find a set of loose license plates in a car that has

had multiple owners. The Commonwealth, in other words, has failed to rule

out the reasonable hypothesis that Mr. Brown acquired this vehicle in good

faith. Certainly, the presence of Mr. Brown’s mail and bank statements in

the trunk of the vehicle indicated Mr. Brown believed the vehicle to be

permanently his, and not illegally obtained. TT. 30. Mr. Brown’s personal

possessions in the vehicle would be inconsistent with his intent to keep the

vehicle only temporarily, or with a knowledge the vehicle was stolen. The

circumstantial evidence was insufficient to sustain the element of actual

knowledge from Mr. Brown that the vehicle he was driving was stolen

therefore the trial court erred in denying his motions to strike.

5 It costs $40.75 to register a passenger vehicle in the Commonwealth of

Virginia. Department of Motor Vehicles, available at

https://www.drnv.virginia.gov/webdoc/pdf/dmv201 .pdf (last visited,

September 16, 2018).

18

II. The trial court erred in finding Mr. Brown guilty of felony eluding as

there was insufficient evidence that Mr. Brown drove in a manner that

interfered with, or endangered, the operation of the law-enforcement

vehicle or a person in the City of Richmond.

Standard of Review

This Court reviews a challenge to the sufficiency of the evidence in

the light most favorable to the Commonwealth, giving them all reasonable

inferences. Higginbotham v. Commonwealth. 216 Va. 349, 353, 218 S.E.2d

534, 537 (1975). But this Court must reverse the conviction if it is “plainly

wrong or without evidence to support it.” ]d.

Argument

Mr. Brown did not drive in a manner consistent with a conviction of

felony eluding. In order to convict an individual of felony eluding, the

Commonwealth must prove that Mr. Brown, “drove... in a way that

interfered with or endangered the operation of the law enforcement vehicle

or in a way that endangered a person.” R. at 81 (Indictment); Jones v.

Commonwealth. 64 Va. App. 361, 367-68 768 S.E.2d 270, 273 (2015). The

difference between felony eluding and misdemeanor eluding is whether an

individual endangered the operation of a law enforcement vehicle or

endangered a person. ]d. at 367, 768 S.E.2d at 273.

14*

i. Mr. Brown’s driving behavior of 120 miles per hour, and multiple

lane changes, did not occur in the City of Richmond.

The trial court in this case specifically focused on the finding that Mr.

Brown put the officer’s life in jeopardy by going at high rates of speed in

finding evidence sufficient of felony eluding. TT. 64-65. But this evidence

was insufficient to sustain a felony eluding charge, specifically when the

high rate of speed of 120 miles per hour by the officer did not occur in the

City of Richmond. TT 27, 28.

It is also true that Officer Sentipal testified

that Mr. Brown did not conduct the “multiple lane changes” he observed

until the chase was in Henrico County. TT 41.

In Thomas v. Commonwealth, this Court addressed a similar scenario

where a defendant committed misdemeanor eluding in two contiguous

jurisdictions, but did not commit felony eluding in the jurisdiction where he

was prosecuted. 38 Va. App. 319, 326, 563 S.E.2d 406, 409 (2002). In

Thomas, the accident that caused injury to a driver of another vehicle,

occurred in a different jurisdiction.6 Here, as well, some the elements that

allegedly elevated Mr. Brown’s driving behavior to a felony offense did not

occur in the City of Richmond: his 120 miles per hour and multiple lane

changes. It was error for the trial court to consider these factors in

6 Thomas was decided under a previous version of Virginia Code §46.2817 where bodily injury elevated the offense from a misdemeanor to a

felony. See Va. Code 46.2-817 (B) (1999).

1%

20

v

convicting Mr. Brown, as they were not properly within the City of

Richmond.

ii. Mr. Brown’s driving behavior in the City of Richmond did not

endanger the officer, or a person, as required under felony

eluding.

In Jones v. Commonwealth, the defendant drove away after being

stopped by police while both officers were still partially inside of Mr. Jones’s

vehicle. 64 Va.-App. at 364, 768 S.E.2d at 272. As a result, one of the

officers was forced to run alongside the car for about twenty feet before

ultimately falling onto the road. jcL at 365, 768 S.E.2d at 272. The

defendant drove over the curb, and the car “flew in the air.” Id at 365, 768

S.E.2d at 272. This Court held the defendant’s conduct supported a

conviction of felony eluding, in part, because he endangered the officers by

driving away while they were still partially inside of the vehicle and making

a number of “unsafe maneuvers.” Id. at 369, 768 S.E.2d at 274.

In Tucker v. Commonwealth, a state trooper tried to initiate a traffic

stop, but the defendant fled, passed three cars over “double solid lines” on

a two-lane highway, ran a red light, lost control of his vehicle, traveled in

excess of 105 miles per hour, and crashed into a tree. 38 Va. App. 343,

344_45_ 564 S.E.2d 144, 145 (2002). He then got out of his car and ran into

the woods. Id. at 145. The court held in Tucker that the defendant’s driving

Zl

and subsequent collision “clearly endangered” both the Trooper and other

motorists. Id. at 344.

Mr. Brown’s case is fundamentally different from Tucker, where the

defendant crossed double solid lines to pass three cars on a two-lane

highway, lost control, and crashed into a tree, see Tucker, 38 Va. App. at

343, or Jones, where the defendant drove away while law enforcement

officers were inside his vehicle. Jones, at 365, 768 S.E.2d at 272. Mr.

Brown did not endanger the life of Officer Sentipal or other motorists when

he drove away from the police stop.

Rather, what did occur in the City of Richmond is what the dash-cam

video shows: Mr. Brown switching lanes, and driving on the shoulder to exit

onto Interstate 64. The dash cam does not show other cars having to slam

on their breaks, or veer aggressively to get out of Mr. Brown’s way. In fact,

Officer Sentipal testified that while he observed vehicles get out of Mr.

Brown’s way, he believed that was because of his lights and sirens. TT 41.

Mr. Brown never drove onto oncoming traffic, nor did he cross any double

yellow lines. Officer Sentipal also conceded he could not determine Mr.

Brown’s speed initially because he was focused on the road. TT 28. Mr.

Brown also never lost control of his vehicle, or caused an accident, either to

himself or anyone else. In fact, he voluntarily pulled over on the median of

17

ll

the interstate after a period of time in New Kent County. TT 29. Given these

facts, Mr. Brown’s conduct, as it occurred in the City of Richmond, did not

endanger the lives of the officers involved or other motorists. Therefore, his

conviction for felony eluding must be reversed.

r*

iii.

'

This Court should invoke the ends of justice exception to

reach the error in this case.

This Court can consider this issue under the ends of justice exception

to Rule 5A:18. Mr. Brown did not argue the sufficiency of the evidence for

the eluding charge in the trial court, or that the trial court could not consider

the actions by Mr. Brown that did not occur in the City of Richmond.

However, endangering a person, or the law enforcement officer, is an

element of this offense. Va. Code §46.2-817 (B). And there is affirmative

evidence in the

record this element did

not occur.

Redman v.

Commonwealth. 25 Va. App. 215, 221-22, 487 S.E.2d 269, 273 (1997)

(noting that to invoke the ends of justice exception “the appellant must

demonstrate...the record must affirmatively prove that an element of the

offense did not occur.”).

Here, the Commonwealth was charged with proving that Mr. Brown’s

actions endangered the operation of the law-enforcement vehicle or

endanger a person. The evidence in the record is that, in the City of

Richmond, Mr. Brown at worst refused to stop for the pursuing officer,

1#

£3

drove on the shoulder and passed vehicles without using his turn signal.

The Officer testified he did not know the speed initially because he was

watching the road, TT 28, and when he did estimate the speed at 120 miles

per hour this was in New Kent County, not the City of Richmond. TT 27, 28.

The Officer further testified that the lane changes occurred in Henrico

County, TT 28-29, and that vehicles were getting out of the way because of

his lights and sirens not Mr. Brown’s driving. TT 41. There was no accident,

or aggressive maneuvers by Mr. Brown—nor any that he caused from other

drivers. The evidence is that Mr. Brown was eluding police. But there is

affirmative evidence in the record he did not endanger or interfere with the

law-enforcement officer, or endanger a person. Therefore, the ends of

justice exception is appropriately applied in this case to fix this error, and

find the evidence insufficient to convict Mr. Brown of a felony eluding.

III. The trial court denied Mr. Brown his constitutional right to a jury

trial on the misdemeanor charges of receiving stolen property, and

false identification.

Standard of Review

Constitutional arguments are reviewed de novo by this Court as

questions of law. Shivaee v. Commonwealth. 270 Va. 112, 119, 613 S.E.2d

570, 574 (2005).

V&

Z4-

Argument

Both the Virginia and United States Constitution guarantee a

defendant the right to a trial by jury. U S. Const, amend VI; Va. Const. Art.

I, §8. In this case, Mr. Brown waived his right to a jury trial for the receiving

stolen property felony charge, as well as the eluding charge and

accompanying traffic offenses.7 Following his convictions for those

charges, as well as the re-indicted false identification second charge, Mr.

Brown filed a Motion to Set Aside the Verdict. Motion to Set Aside, filed

4/12/2018. In the Motion Mr. Brown asked the trial court to “set aside his

convictions” for the receiving stolen property, and false identification

second offense. Id. At the motions hearing the Commonwealth’s Attorney

conceded Mr. Brown’s motion to set aside, stating the prior conviction for

false identification was faulty and did not qualify as a predicate conviction

and that the evidence of value of the allegedly stolen vehicle was

insufficient. Tr. 4/23/2018 at 4-5. Mr. Brown agreed that the two charges

should be reduced to misdemeanor charges. Tr. 4/23/2018 at 5-6. And Mr.

Brown did ask specifically for such reduction in charges. Tr. 4/23/2018 at 56, 7.

7 The record does not show that Mr. Brown ever affirmatively waived his

right to a jury for the September 5, 2017 re-indictment of the false

identification second offense.

2#

15

At no time following this reduction, however, did Mr. Brown enter a

plea, of either guilty or not guilty, to the amended misdemeanor charges

nor was he specifically found guilty by the trial court of the amended

misdemeanor chargisTMr. Brown also did not waive his right to enter a not

guilty plea and be tried by a jury for these two misdemeanor charges. This

Court faced a similar situation in Fitzgerald v. Commonwealth, 31 Va. App.

739, 525 S.E.2d 604 (2000). In Fitzgerald a defendant was convicted of

object sexual penetration after a jury trial. Fitzgerald, 31 Va. App. at 740,

525 S.E.2d at 605. The defendant filed a motion to set aside the verdict,

and the trial court set aside the object sexual penetration conviction, and

sua sponte entered a conviction for misdemeanor assault and battery, over

the defendant’s objection. Id. at 741, 525 S.E.2d at 605. This Court

reversed the misdemeanor assault conviction, holding the trial court

“exceeded its authority” by failing to order a new trial on the lesser offense.

]d. at 605, 525 S.E.2d at 742.

The same scenario is presented here. The fact that Mr. Brown did not

initially ask for a jury trial on the original felony charges is of no import, as

he certainly had the right to demand a jury on the amended, and therefore

new, misdemeanor charges. This is similar to when this Court reverses a

conviction for a felony based on insufficient evidence, but finds there is

215

sufficient

evidence

to

sustain

a

conviction

on

a

lesser-included,

misdemeanor offense. This Court does not, sua sponte, convict the

defendant of the lesser offense, but rather remands the case for a new trial

on that lesser offense. See Gorham v. Commonwealth. 15 Va. App. 673

678-79, 426 S.E.2d 493, 496-97 (1993).

Mr. Brown did not invite this error. Mr. Brown never asked the trial

court to find him guilty of the misdemeanor offense. Cf. Manns v.

Commonwealth. 13 Va. App. 677, 679, 414 S.E.2d 613, 615 (1992)

(holding defendant could not claim error for misdemeanor conviction on

appeal when, at sentencing,

both defense counsel and defendant

specifically asked for the misdemeanor conviction). Defense counsel stated

she did not contest the Commonwealth’s position that the identification theft

second offense “would then be reduced to first offense identity theft, which

is a misdemeanor.” Tr. 4/23/2018 at 5. And defense counsel asked the trial

court to “reduce that [receiving stolen property] to a misdemeanor as well.”

Tr. 4/23/2018 at 6. At no time, however, did defense counsel, or Mr. Brown

request the trial court enter a conviction for a misdemeanor. Rather, in the

written Motion to Set Aside Mr. Brown requested that his convictions be set

aside, not that he be found guilty of lesser-included offenses. Motion to Set

Aside, filed 4/12/2018.

27

Defense

counsel,

the

trial

court,

and

the

Commonwealth’s

discussions about the appropriate sentence do not amount to invited error

in this case. The sentencing discussion simply highlights the trial court’s

implicit finding of guilt on the two lesser-included misdemeanors. This

discussion does indicate that Mr. Brown did not contemporaneously object

to this finding of guilt, and the denial of his constitutional right to a jury trial.

As such Mr. Brown is arguing this Court invoke the ends of justice

exception to Rule 5A:18 to reach the merits of this issue.

The ends of justice does apply here. Rule 5A:18 . Mr. Brown was

denied a number of essential, constitutional rights when the trial court

entered guilty findings to the two misdemeanors without his consent. Mr.

Brown was denied the constitutional right to a jury trial, primarily, which

incorporated his Fifth Amendment right to testify-or not testify-in his own

defense. Denial of essential rights is a factor appellate courts should

consider in applying the ends of justice. See Cooper v. Commonwealth

205 Va. 883, 889, 140 S.E.2d 688, 692 (1965) (invoking the ends of justice

exception where a defendant’s confession was admitted at trial in violation

of the defendant’s constitutional rights). Here, the denial of Mr. Brown’s

right to trial was absolute and egregious, and therefore a manifest injustice.

This Court should invoke the ends of justice exception to Rule 5A:18. and/or

eI ,<£ 5. ra-C*<31 g

to ,

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28

3jrv<^

reverse Mr. Brown’s convictions for receiving stolen property, and false

identification, remanding those matters to the trial court fora new trial.

CONCLUSION

For the reasons stated above, Mr. Brown respectfully requests this

Court grant his petition for appeal and reverse and dismiss his convictions

and/or reverse

proceedings.

his

convictions and

remand the case for further

The. petition -f Or a. Wri-t

cer-fciora-ri should b

Respectfully submitted

QUINTIN IRVIN$5 BROWN

By:

Lauren Whitley, VSB #75562

Deploy Public Defende ‘

Office of the Public Def 3nder

701 East Franklin Street—6th Floor

Richmond, Virginia 23219

Telephone: (804) 225-4330 x 111

Facsimile: (804) 371-4908

Email: lwhitley@ric.idc.virginia.gov

SbBSCRieeO AMO SWORN to BEFORE ME

THIS ( OAV OF

0‘41 \wvjn Corr-e-c-ti

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CsdsxXfi*

0aie: Tkurs £^^ 2.07a

NOTARY POBUC.

//?<?<(

DAVID LOUIS HAMBY

NOTARY PUBLIC

Commonwealth of Virginia

wt

„ Registration #7845578

My Commission Expires Nov. 30 2023

me

fysiiiiisi £ K*

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