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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

We get three new published opinions today from the Court of Appeals. The first will be of interest to criminal defenders and prosecutors as it gives more analysis of the new probation revocation rules. We also learn about proving a "lost" will and get a 2-1 decision on a 6th Amendment Speedy Trial case.

Jaron Devontae Nottingham v. Commonwealth of Virginia is an appeal from a revocation where the circuit court imposed 5 years of his suspended time because his violations were only “technical” ones under Code § 19.2-306.1. The original conviction was for breaking and entering and felony destruction of property in 2010 and he received five years for each offense.

Between 2011 and 2015, Nottingham collected three revocations, for which he served 30 days after first, five months for the second, and then two years to serve when he didn’t. If you are good at sentencing math, you know that Nottingham was still looking at 7 years and 6 months when he was again called to the courthouse to “’splain why” he was still misbehaving. Specifically, his probation officer reported Nottingham for “failing to report new arrests for firearm offenses and a speeding citation, possessing a controlled substance, failing to follow his probation officer’s instructions, failing a drug screen, and traveling out of state without permission.”

At the show cause, Nottingham admitted to the violations, but argued that under Code § 19.2-306.1 all the violations, being brought in a single action, should be treated as one technical violation. He further argued that since the adoption of the new revocation procedures occurred after he last prior violation, he was in essence entitled to a clean slate in so far as the statute provides from counting prior violations toward permitting the court to up the ante on the sentence imposed.

This appeal is the first impression of this issue and the circuit court and Court of Appeals, Judge Huff joined by Judges Fulton and White, agree with the Commonwealth that the new law did not give every defendant facing suspended time imposed prior to Code § 19.2-306.1’s enactment a “clean slate” with respect to prior violations. Even if not termed “technical violations” under the prior statutory scheme, the nature of the violations were the same and, thus, prior violations do count toward the calculation by the court of just how long it can lock the defendant away. Here, at least two of the prior violations counted as “technical” and, thus, the new violations, even if treated as a “single” violation because they were brought together in one show cause proceeding, are still a “third or subsequent” technical violation, given the court the discretion to do its worst (from Nottingham’s perspective, anyway).

Now there is an interesting footnote in the appeal which says that the Court imposed all the 2 years and six months of the remaining time on both sentences. But that’s only five years total, not 7 and ½ as indicated above. But Nottingham maintained that the court suspended “all” his remaining time. The Court says that it will “not address here whether the revocation order accurately recites the revocation history.” So, when Nottingham is once again free in about 5 years time, he probably needs to mind his p’s and q’s, or he might find himself back before the court to ’splain why he shouldn’t serve the remainder of his sentence.

Shonda Danniell Lynn Reedy, s/k/a Shonda Daniell Lynn Reedy v. Commonwealth of Virginia involves an issue that rarely gets much attention, Sixth Amendment Speed Trial. The reason that constitutional denial of a speedy trial if not commonly argued is that statutory speeding trial almost always precedes an Sixth Amendment claim, and it is highly unlikely that a conviction that withstands a statutory challenge will prove to be in violation of the sixth Amendment, and while the Court today finds no error in this case, the opinion did garner a dissent and that makes it worth a look.

Reedy provided false statement on a concealed carry permit – that’s perjury. She was indicted for this offense on August 3, 2020, but was not arrested until September 1, 2021. Released on bond, Reedy’s trial was set for November 29, 2021, but she moved to dismiss on constitutional speedy grounds on November 3, 2021. When the circuit court overruled her motion, Reedy entered a nolo contendere plea to the perjury charge conditioned on her right to appeal the speedy trial issue.

Reedy’s argument was based on the fact that police had visited her home on at least four occasions “on matters involving her children and stepchildren,” and that she had also been stopped by police twice, all while the capias was outstanding, but she had not been arrested. She contended that she had “memory problems” and could not recall what occurred when she applied for the permit.

Today, the Court of Appeals affirms the conviction in a 2-1 decision with Judge Malveaux, joined by Judge Beales, in the majority and Judge Causey in dissent. The majority finds that Reedy was not entitled to a presumption of prejudice and had not shown actual prejudice from the delay in here arrest and trial. Judge Causey, however, concludes that Reedy was not required to show actual prejudice from the Commonwealth’s delay because in her view the evidence shows that the Commonwealth’s negligence was not excused and, therefore, prejudice could be presumed. Expect Reedy to seek a rehearing en banc and/or a review by the Supreme Court.

John F. Glynn and Kevin J. Glynn v. Vita Kenney, Executrix of the Estate of Patricia Lynch-Carbaugh involves a lost will. The decedent was the mother of the Glynns, and the will in question disinherited them. If the will could not be proved, the sons would inherit by intestate succession. The record showed that Lynch-Carbaugh had employed an attorney to draft her testamentary documents and met with that attorney several times to discuss and update her testamentary plan. At the time of her death, Lynch-Carbaugh’s home was in a state of “disarray” and the will could not be found.

At trial, Kenney offered multiple theories of how the will came to be lost, with the Glynns arguing that because Kenney could not offer a single cogent explanation of how the will was lost, she was as a matter of law unable to meet the clear and convincing standard required to prove a lost will. Judge Humphrey’s, joined by Judges AtLee and Raphael, reject this argument on the ground that a proponent of a lost will need not prove how the will become lost, but rather must prove by clear and convincing evidence what the testamentary intent of the testator was at the time of death. Thus how the original of the will was lost is not relevant, only whether the proponent can overcome the presumption that a lost will was deliberately destroyed so as to revoke it.

The Glynns also lose on their argument that the circuit court erred in finding the evidence presented rose to the clear and convincing standard. The testimony showed that Lynch-Carbaugh knew how to change her testamentary plan, had repeatedly made clear that she intended to disinherit her sons and never gave any indication that she wish to die intestate. The Court of Appeals finds that the circuit court could have concluded from this evidence that it was clear and convincing that the will was merely lost in her disordered house.

An article in the Virginia Mercury advises that the Wegmans grocery company is seeking a rehearing before the Supreme Court of Virginia of its 7-0 decision finding that several landowners in Hanover county had standing to challenge a decision of the Hanover Board of Supervisors concerning rezoning and special exceptions permitting Wegmans to build a large distribution and warehousing facility near their property. What's more, an amicus brief filed by 21 real estate, housing and business groups has joined in asking the Court to reconsider its judgment, asserting that "If not reconsidered, [the Supreme Court of Virginia's decision in Morgan v. Hanover Board of Supervisors] will have disastrous consequences for all types of development in Virginia."

You can read the analysis of the Court's opinion by Steve Emmert here. The final paragraph of that analysis shows that the decision is no nearly so disastrous as the amici seem to believe (or hope that the Court will believe.) More to the point, a unanimous opinion by authored by the the Justice Kelsey, who is arguably the most pro-business member of the Court, is not likely to garner a rehearing. There are two points that should be considered -- 1) as made clear by the Court finding standing does not mean that the landowners will prevail in the trial court . . . only that they will have their case heard. 2) Standing in cases like is, as the term "particularized harm" implies turn on the "particularized" facts of the case. In short, this is the quintessential "case that proves the rule."

So while the landowners' case came be characterized as a "not in my backyard" ("NIMBY") challenge to the government's exercise of its legislative power to rezone and grant exceptions to land use restrictions, NIMBY litigants can have standing if the harm of the government's decision is specific to them as against the general public. This does not mean that they will prevail on their claim, but they do have the right to bring it.

So, what is the opposite of NIMBY? For the business groups are clearly lining up with Wegmans to head off future NIMBY challenges. Anti-NIMBY does not have a ring to it. And YIMBY does not apply, because that refers to landowners who encourage development near their property -- often in the hope that it will increase the value of their land. NAMBI ("Not Against My Business or Industry") has been used occasionally, but it is too close to "Bambi" for my tastes. How about BIGHAMS? Business Interests Generally Have A lot of Money, Suckers.

The Court of Appeals issued only one new published decision today, but it is a doozie. If you noticed the italics in the lede, you have probably guessed that there were other published decisions – just not “new” because they are both from en banc rehearings. Since these can be made short shift of, let’s start with them first, shall we?

First up is Bradford T. Cellucci v. Commonwealth of Virginia, which is a rehearing from an unpublished decision all they way back in May of 2022. In that case, a divided panel, with Judges Ortiz and Causey in the majority and Chief Judge Decker dissenting, reversed the trial court’s decision to not modify pursuant to Code § 19.2-303 a sentence of life imprisonment and the maximum fine of $100,000. While conceding that Cellucci’s offense, in which he savagely attacked a romantic rival leaving him permanently paralyzed, was “horrific,” the majority found that the circuit court failed to consider all of the evidence on the motion toreconsider, and thus, did not comply with the procedural requirements of Code § 19.2-303 and further erred in stating that Cellucci presented no mitigating evidence, when he had, in fact, presented substantial evidence in mitgation. Chief Judge Decker found that the majority was misreading the record, and would have found that the judge merely meant that Cellucci presented no mitigating evidence sufficient to overcome the horrific nature of his crime.

Today, the en banc Court adopts Chief Judge Graff’s view from the panel. She is joined by Judges Humphreys, Beales, Huff, O’Brien, AtLee, Malveaux, Athey, Fulton, Friedman, Chaney, Raphael, Lorish, and White. Judge Ortiz is again joined by Judge Causey along with Judge Callins dissenting. I will comment briefly to say that while the dissent might be pardoned for thinking that the maximum punishment here was possibly excessive, the sentence was a matter within the circuit court’s discretion, and the majority was correct to read the court’s detailed letter stating its reasons for not reducing the sentence in a light favorable to upholding the sentence. With a 14-3 decision, I would not expect an appeal to be granted by the Supreme Court if Cellucci petitions for one.

The other en banc decision, Robert Lee Jeffrey, Jr., v. Commonwealth of Virginia, is not from a prior opinion, but from a review of a denial of post-conviction bond pending appeal brought on motion under Rule 5A:2. That motion was granted in a 2-1 decision last October, but before the case was remanded for setting of bond (or at least reconsidering the denial of bond) the Commonwealth sought a rehearing and received one. Because the original order was not published (bond review motions rarely warrant publication), we don’t know who the judges were that through the circuit court was in the wrong, but what we do know if that today all 17 judges sign on to the order denying the motion. Of course, this does not mean that all 17 agree, it may just be that those that do not are in “silent dissent.” What it comes down to is this: the judge denied post-conviction bond because he found that Jeffrey was a “financial predator” who preyed on nonprofit organizations and the City of Roanoke, and a three-time convicted felon, who would “endanger the community at large.” As with the Cellucci case, it is very likely that at least some of the judges of the Court of Appeals were doubtful that they would have found Jeffrey to be all that much of a danger – he’s a politician who got caught with his hand in the cookie jar and, one would hope, has learned his lesson. However, the issue in reviewing a denial of post-conviction bond is not whether the Court of Appeals would have exercised the discretion to do so differently, but whether the judge in this case abused his discretion. The Court concludes that he did not.

Now to the “swamp” referred to in the headline. Anyone familiar with automobile liability insurance knows that for the coverage to apply, one must be “using an insured vehicle as a vehicle.” Typically, this is not difficult to determine because at the time of the vent that triggered a request for coverage from the insured, someone was driving the vehicle, or boarding or alighting from a vehicle, both being necessary acts for using the vehicle to get from place to place.

On the other hand, there some “uses” that clearly fall outside the concept of using a vehicle as a vehicle. For example, if I drive my car onto my lawn next to my house, then climb on the roof to clean my gutters, and I fall off the roof while doing so, I am not going to get much love from a court when I claim that “step ladder” is an intended use of my sedan.

Then there is the swamp. I do not use that term lightly because one can wade for days in the cases that have to decide when a use is consistent with the function of a vehicle as a vehicle searching through murky opinions, dank concurrences, and oozy, dripping dissents. Until 2022, this untamed bog was the province of the Supreme Court of Virginia, but as of today, the Court of Appeals has weighed in with its opinion in United Services Automobile Association v. Bruce A. Estep, and given that like the panel opinion in Cellucci and the panel order in Jeffrey, it’s a 2-1 decision, I feel certain it is destined for an en banc and possibly a trip to the Ninth Street side of Grace Street.

On November 20, 2016, Estep and his wife checked out of a hotel in Fairfax County. Estep began loading his bags into his car preparing for a return to his home in Chesapeake. He intended to return the luggage cart to the hotel lobby once the car was packed. Estep was “leaning into the rear of the vehicle, bent over at the waist and reaching into the vehicle, such that his body was in the vehicle from the waist up” when a gust of wind set the luggage cart he was utilizing in motion. The luggage cart struck him on his right side, causing him to fall to the ground. The injuries he sustained were serious.

That’s it. Those are the facts. Now, you be the judge. Was Estep “using” the vehicle as a vehicle? I will give you some time to think about that, and provide “spoiler space” with this video of another travel related SNAFU involving luggage.

Have you made up your mind – is Mr. Estep covered by his automobile liability policy for his injuries? If you answered yes, Judge Friedman, joined by Judge Causey agrees with you. You naysayers will have to find solace in Judge O’Brien’s dissent.

Before getting to the whys and wherefores, an interesting note about the standard of review. Because the facts were stipulated to, the Court of Appeals gives no deference to the circuit court’s application of those facts. Rather, the Court of Appeals is, in effect, reweighing the evidence because just like when it reviews a contract or other written document, it is in a equal position to the circuit court to interpret the meaning of the written stipulations. There is no credibility determination to make because there is no witness whose shift eyes or nervous ticks would give the circuit court pause before ruling in his favor.

Estep argued his accident arose out of the use of his car “as a car” because he suffered his injuries while he was packing the vehicle before an imminent road trip. USAA in turn claimed the accident did not arise out of “use” of the car because there was no causal relationship between loading the trunk with bags and the luggage cart hitting him, as Estep could have been struck by the runaway luggage cart regardless of his proximity to the vehicle.

The majority concludes that “transporting luggage is a valid and expected use of a vehicle, and one cannot transport the baggage without first packing the vehicle.” Therefore, whether Estep might have been hit a rolling baggage cart under some other circumstance is irrelevant. In this case, he was struck by the luggage cart while he was using it to assist in an “expected use” of the vehicle. The majority goes on to note that USAA cannot win by asserting that Estep was not occupying the vehicle or that the vehicle was not being used, but was merely the “situs” of the accident. As already mentioned, boarding or alighting from a vehicle constitutes an expected use and these occur before or after the vehicle has actually transported the individual.

The dissent agrees with the majority that Estep was occupying the vehicle at the time of his injury, but concludes his injuries did not result from an accident arising out of the use of his vehicle. This, Judge O’Brien concludes, was because “the cause of the Estep’s accident—the wind blowing the luggage cart into him—was ‘merely incidental or tangential’ to his use of the vehicle.”

I would point out that the majority’s logic would apply just as well if Estep had been struck by another vehicle while loading his car, and I wonder if this fact would have altered Judge O’Brien’s view? Consider this, suppose I have a vehicle with lift-gate like Estep’s, but instead of putting luggage in it, I put my brother-in-law – not so much because the other seats are occupied, but because he is inveterate back-seat driver and wish him to be as far from the front as possible, but I lack the necessary restraints to place him on the roof rack. I think that if he were struck by a car while boarding or alighting from the vehicle, we would clearly say that he was using the vehicle as a vehicle, because this is no different than being hit when using a more conventional manner of vehicular ingress and egress.

Now, suppose that along with my brother-in-law, I am also putting some luggage (it’s a big cargo space) and the cart is blown by the wind and strikes him. Would this be a different case for Judge O’Brien? Probably not.

What if he were struck by a runaway luggage cart that had been left in the parking lot by another hotel guest – certainly under Judge O’Brien’s reasoning, this would be even more “incidental or tangential,” but would the majority still find coverage? What if the wind blew down a tree that struct the lift-gate which then struck Mr. Estep? What if the tree struck him directly?

See? A swamp.

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