The Supreme Court of Virginia Applies the Fugitive Disentitlement Doctrine
Junior Josephson was convicted of drug possession and petit larceny and received sentences for these crimes that included supervised probation. While appealing his convictions in the Court of Appeals, he absconded from probation. So, the Commonwealth moved to dismiss the appeal under the fugitive disentitlement doctrine. It proffered a capias that had been issued at Josephson’s probation officer’s request.
Two days later, without waiting for Johnson’s response, the Court of Appeals granted the dismissal.* Josephson’s counsel filed a petition for rehearing of the dismissal, but did not aver that he was not a fugitive. The Petition was denied. Josephson appealed to the Supreme Court of Virginia, arguing that the Court of Appeals engaged in “impermissible factfinding” when it determined that he was a fugitive.
The Supreme Court disagreed. It found that an appellate court may consider post-trial factual developments “that bear upon whether the court should adjudicate a case.” Here, Josephson never denied being a fugitive, therefore, there was no factual dispute over that issue. Thus, the Court of Appeals was permitted to determine whether the doctrine applied.
And, the Supreme Court agreed with the Court of Appeals that it did apply. Courts apply a three-part test to determine whether the fugitive disentitlement doctrine applies: “(1) the appellant must be a fugitive, (2) there must be a nexus between the current appeal and the appellant’s status as a fugitive, and (3) dismissal must be necessary to effectuate the policy concerns underlying the doctrine.” Here, the Commonwealth’s proffer and documentary that Josephson was a fugitive was sufficient where Josephson did not deny that fact. There was a direct connection between the appeal of the convictions and fleeing probation for those same convictions. And dismissal served two policy concerns of the doctrine: ensuring enforceability of judgments (a defendant can’t take a “heads I win, tails you’ll never find me” approach), and deterring flight.
*In a footnote, the Supreme Court said that Josephson should have had the opportunity to respond to the motion before the Court of Appeals ruled, but that there was no prejudice since Josephson’s counsel promptly filed a petition for reconsideration.