Orndoff v. Commonwealth

Full title: Katie ORNDOFF, Appellant, v. COMMONWEALTH of Virginia, Appellee.

Court: Court of Appeals of Virginia

Date published: Feb 6, 2024

79 Va. App. 676 (Va. Ct. App. 2024)

896 S.E.2d 826

Opinion

Record No. 0973-21-4

02-06-2024

Katie ORNDOFF, Appellant, v. COMMONWEALTH of Virginia, Appellee.

Thomas K. Plofchan, Jr. (Westlake Legal Group, PLLC, on briefs), for appellant. Graham K. Bryant, Deputy Solicitor General (Jason S. Miyares, Attorney General; Andrew N. Ferguson, Solicitor General; Erika L. Maley, Principal Deputy Solicitor General; Rick W. Eberstadt, Assistant Solicitor General; Craig Stallard, Senior Assistant Attorney General, on briefs), for appellee.

Upon a Rehearing En Banc, Circuit Court No. CR00036777-00

Thomas K. Plofchan, Jr. (Westlake Legal Group, PLLC, on briefs), for appellant.

Graham K. Bryant, Deputy Solicitor General (Jason S. Miyares, Attorney General; Andrew N. Ferguson, Solicitor General; Erika L. Maley, Principal Deputy Solicitor General; Rick W. Eberstadt, Assistant Solicitor General; Craig Stallard, Senior Assistant Attorney General, on briefs), for appellee.

Before Chief Judge Decker, Judges Beales, Huff, O’Brien, AtLee, Malveaux, Athey, Fulton, Ortiz, Causey, Friedman, Chaney, Raphael, Lorish, Callins and White

₆₇₆By opinion dated June 6, 2023, a panel of this Court, with one judge dissenting, reversed the trial court’s judgment of summary contempt and vacated the conviction, holding that the trial court violated the defendant’s due process rights in exercising the power of summary contempt because the trial ₆₇₇judge did not personally observe in open court all the essential elements of the alleged contemptible conduct of testifying while voluntarily intoxicated. See Orndoff v. Commonwealth, 77 Va. App. 766, 887 S.E.2d 774 (2023). We granted the Commonwealth’s petition for rehearing en banc and stayed the mandate of that decision.

Upon rehearing en banc, the judgment of the trial court is affirmed without opinion by an evenly divided Court. See Code § 17.1- 402(E). Accordingly, the opinion previously rendered by a panel of this Court on June 6, 2023 is withdrawn and the mandate entered on that date is vacated. The appellant must pay to the Commonwealth of Virginia $150 damages.

Chief Judge Decker, Judges Beales, O’Brien, AtLee, Malveaux, Athey, Fulton, and White voted to affirm the judgment of the trial court.

Judges Huff, Ortiz, Causey, Friedman, Chaney, Raphael, Lorish, and Callins voted to reverse said judgment.

The Commonwealth is entitled to recover of the appellant the fees and costs to be assessed by the clerk of the trial court.

This order will be published and certified to the trial court.