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

Well, it's almost the end of November, but we get a spooky little opinion from the Court of Appeals today as one of three published opinions. Let's start with Wintergreen Homestead, LLC. et al. v. Bettie W. Pennington, et al. which comes from the pen (or word processor) of Judge Fulton writing for himself, Judge Ortiz and Sr. Judge Petty. Befitting the grave subject matter, Judge Fulton's well considered prose begins with this observation: "For over two centuries, members of the Harris and Coleman families were laid to rest in what became known as the Wintergreen Family Cemetery." The Appellants are the descendants of the dearly departed, while the appellees own or previously owned two small parcels that have been sold off from the larger tract across which a "traditional path" to the cemetery runs.

The issue in the circuit court was whether Code § 57-27.1, which provides for a right of access to private cemeteries applied to the "traditional path" which was established when the land was a unitary parcel, permitted the appellants to traverse the land of the appellees to reach the cemetery, which remained on the land of the appellants. The circuit court ruled that while the path was established in accord with the statute, the statute applied only to land on which the cemetery was located, not intervening property that had been conveyed away.

Now anyone familiar with easements may be wondering two things. 1) was the cemetery not accessible by some other route creating an easement of necessity, and 2) was access to the cemetery not granted in the deeds that conveyed the two parcels. The answer to the first is that since at least 2014 the family have been accessing the cemetery by an alternate path -- which raises the question of why they waited until 2017, when this declaratory judgment action was filed to seek the right to use the former route. As to the second, the answer is that no easement was reserved in the deeds, which raises the question of whether the drafter of the deeds was asleep at the wheel, as the path was apparently well worn and visible -- open and notorious in the language of easements and adverse possession.

The first question is "who knows?" The opinion provides no clue as to why the property owners began to deny access, or why the family didn't act sooner. The second is easier to guess -- at the time the parcels were conveyed, it probably never occurred to anyone that the new owners would deny access to the cemetery. If the drafter was an attorney, he or she should probably have anticipated this and included an easement, but the failure to do so is understandable.

The Court of Appeals affirms the judgment, noting that the plan language of the statute supports the view that access is required only to reach a private cemetery on the property being used to access it, not on intervening properties. Nothing in the statute suggests that a parcel severed from whole that does include some part of the cemetery is subject to the access provisions even if they would have applied prior to the severing of the parcel. In a footnote, the Court discuss similar statutory schemes where access over adjoining parcels is specifically permitted, suggesting that Virginia simply decided to favor current landowner's rights over that of the relative of the cemetery residents.

The Court decided another civil cases, George English v. Thomas William Quinn, Judge Sr. Petty joined Judges Fulton and Ortiz. This appeal is all about the tolling provisions of the Supreme Court's emergency orders related to COVID-19 and was briefed not only by the parties but by the VTLA as amici for the appellant/plaintiff and the VADA for the appellee/defendant. The underlying case was for person injury arising from a "head-on" collision in July of 2018. English filed his suit on the last day of November 2020, more than two-years beyond the statute of limitations for personal injuries, but just over 8 months after the first emergency order was entered.

The issue before the trial court was whether the tolling provisions of that order and one that followed applied only to a limitations period that ran during the period in which the order was in force, or tolled all limitations period that were then running. In other words, was English required to file his suit in a timely fashion if no tolling order was in effect on the two-year date, or was he entitled to tack on the period during with the statute of limitation had been tolled by the Supreme Court's first two COVID orders? The circuit court ruled that because the second tolling provision had expired just prior to the two-year date, English was not entitled to the benefit of the tolling provisions of either order.

Today the Court of Appeals reverses and remands the case for further proceedings on the merits. This result seems fairly to be expect if one looked to the language of the Supreme Court's first order, which plainly extended all deadlines for 21 days. There was no distinction between deadlines that would run during that 21 day period, and deadlines that were running.

The difficulty arises from the language of the Court's second order, which stated that it applied to "any applicable statute of limitations which would otherwise run during the period this order is in effect." Now that sentence seems pretty clear to favor the position of the appellee, the VADA and the circuit court.

But, there was a third order (and then a fourth, fifth, sixth . . .) entered which "clarified that it had 'broadly stated' that 'all deadlines' were tolled and extended, the Second Order 'repeated the broad tolling of deadlines,' and the Third Order had 'incorporated by reference the prior emergency orders' and 'tolled' 'all "statutes of limitations and case related deadlines"' during the period of judicial emergency." The Court of Appeals reasons that while the language of the second order, if read in isolation, certainly did seem to limit its tolling to limitations period that ran only while it was in effect, the subsequent orders interpreted it as applying to all periods of limitation.

Now, one might wonder if the second order, issued around the time that politicians were loudly, and erroneously, proclaiming that COVID had been peaked, had been drafted with the expectation that it would not be followed by a third. Indeed, if you can recall the machinations that were whirling around Richmond at the time, it was plain that the Supreme Court, the Governor, and the General Assembly were involved in a three-way game of chicken, with each stating or at least hoping that it was one of the other's responsibility to deal with the pandemic's effect on statutory deadlines (especially with respect to evictions, but also to most other legal processes). Thus, its very likely that the use of language in the second order was deliberate and the clarification of the third order resulted for the failure of the elected branches to pick up the baton.

The last case decided today by published opinion is Todd Lynn Lewis v. Commonwealth of Virginia, written by Judge Lorish joined by Judges Huff and Raphael. Its a sufficiency case, but a very specific sort of sufficiency. There is no question that Lewis possessed methamphetamine, only whether he possessed it in a sufficient quantity to trigger a mandatory minimum sentence. The problem with the evidence presented at trial was it did not specify whether the contents of several baggies was pure meth or meth cut with some other substance. The weight was enough for the sentencing enhancement if pure, but not enough if it was cut and the state lab did not perform a purity analysis. The Court of Appeals remands for re-sentencing without the enhancement.

Back in July, I announced that I would be posting stats on the filings in the Court of Appeals including the "Icarus Index" -- an attempt to come up with a comparable way of measuring the success of appellants similar to Steve Emmert's David-and-Goliath Index for the Supreme Court of Virginia. Although the Court of Appeals has begun issuing opinion from the 2022 docket, the data for these is still fairly sparse. However, as I have completed updating the status of all the appeals filed in January 2022, I think there is enough data to make for interesting observations about how things are going with appeals of right so far.

I posted stats for the first month of filing back in June and, as you can imagine, those numbers did tell us much about how the Court was dealing with the caseload. I think we have a somewhat clearer view now. Let's start by updating the raw data. As reported in my original post, there were 145 filings in January of all types that received a docket number. Not everything filed in the Court of Appeals gets a docket number, or it might be more accurate to say that not every docket number gets a filing. There were 5 docket numbers that are not associated with any filings, so the last docket number assigned in January was 150.

When I made the post in June, the Court had reached a final disposition on 48 of those cases. As of today, the Court has disposed of 90. The Court has heard argument in 28 more cases, and 25 are ready, but not yet set for argument. The remaining 2 cases appear to be in "limbo" as they are not yet fully briefed. There are several reasons why a case might be in "limbo," with the most likely reasons being the death or disability of a counsel, the bankruptcy filing of a party, or a procedural delay.

Of the decided cases, 5 were by published opinion and 29 were by unpublished opinion. There were 56 unpublished orders, and no published orders. Only 8 of the opinions were issued summarily (that is with the Court finding that argument was not necessary because the appeal was wholly without merit). Argument was waived by the parties in only 6 cases.

Four of the published opinions were in civil appeals, though one of these is technically a "hybrid" case with administrative and quasi-criminal overtones as it involved a request to be removed from the sex offender registry. The other published opinion was from a criminal conviction.

In unpublished opinions criminal appeals prevailed over civil, 15 to 2, with three more from Commonwealth's appeals, and five from domestic relations (yes, technically civil, but also part of the Court's original docket and still treated separately in the Court's database). There was one unpublished opinion in a sexually violent predator commitment proceeding and two from the Virginia Workers' Compensation Commission.

Unanimity was the norm, with only on separate opinion, a dissent, in one of the unpublished decision. Of the 34 cases decided by opinion, all but 4 were affirmed, with two more affirmed in part, reversed in part and remand, another reversed and remanded, and only one case where the judgment was reversed and final judgment entered for the appellant.

The time for noting an appeal to the Supreme Court has not yet run for all of the cases that have been disposed of, but 17 appeal notices have been filed, including some in cases that were procedurally dismissed by order, and 64 have become final with no appeal noted.

The Icarus index for this limited sample is probably not particularly instructive give that the many of the decided cases were decided by unpublished order -- meaning that they were probably procedurally defaulted. A quick review of what the Icarus Index is -- referring to the Greek Myth of Icarus, son of Daedalus, it measure how well the appellant does in attempting to soar to the Sun. On a scale of 1 to 5, a 3 is the expected norm of a decision affirming on the merits -- the equivalent of Icarus getting burnt. A 2, by contrast, is for a decision that results from some failure on the part of an appellant to preserve an issue or bringing a meritless appeal. A 1 is reserved for the worst of the worst -- dismissals with penalties for example. On the upside, a 4 is for an appellant who "lives to fight another day" by getting a remand, and a 5 is for the ultimate victory of a reversed and final judgment. Obviously, these metrics don't always fit nicely with the nature or result of a particular case, so I've used license in grading up or down. For example, I treated an "affirmed" Anders appeal as a "4" because I wanted to reflect that the attorney actually "won" on the request to be relieved. I also awarded a half-point in the case where there was a dissent.

There are two other caveats about the Icarus index. First, it does not include cases that were withdrawn or transferred to the Supreme Court. The Court of Appeals doesn't really "rule" on these cases, no there is no way to determine who "won." Second, the Index applies only to the result in the Court of Appeals; if a case is appealed to the Supreme Court, the index score for the case does not change (unless the case is remanded and a different result is obtained). The index is about how the Court of Appeals deals with its cases, not the subjective merit of the cases themselves.

Once there is more data to work with, I will provide analysis by the different areas of the law, but for now lets look at the basic index results. There were 71 cases that received an Icarus score with the average score being 2.54 for all cases. Looking only at 35 cases decided by opinion, the average score is 2.94. For the cases decided by order, it's 2.13. For published opinions it's 3.6 -- possibly not surprising that opinion worth publishing are probably more likely to have positive results for the appellant than unpublished decisions, with by opinion or order.

I would be surprised if we ever see an Icarus number much above 3.6 in any category -- 3 after all is the "as expected" and it is unfortunate that it's more likely that an appeal will come out worse than expected than better. So the fact that for opinions, the number was close to the expected result on average means that among these cases there were not many that got a "worse than" result. With more data, we should be able to make some judgments about where the Court is "leaning" in certain cases.

The Court of Appeals released four published opinions today, and also announced the grant of rehearing en banc. Let's start with the en banc grant because, frankly, it's a bit of a surprise. The case is Osman v. Commonwealth, and the opinion was released just four weeks ago. I summarized the case in one of the "catch-up posts" following the transition to the new website. If you don't want to go back and read that post, let me summarize the summary: Osman was estranged from his wife and subject to protective order. In what appears to have been an ill-conceived to attempt to kidnap her and their child, Osman confronted his wife in the parking lot of a fitness club. Fortunately, two passersby intervened and Osman fled. He was eventually captured some months later and, following delays for COVID and on his own motions, was convicted of several offenses. His appeal went almost nowhere. While the Court of Appeals found that he was unquestionably guilty of the offenses with which he was charged, the Court did reverse one conviction, finding that Osman had been incorrectly charged with a felony level offense when it should have been a misdemeanor. The case was remanded for re-sentencing on the lesser offense. I noted that while this would reduce his total time to serve, he was still facing 20 years in prison and likely deportation at the end of his sentence, so it really was not much of a victory for him.

What is unexpected about the rehearing grant is 1) there was no dissent in the panel opinion, and 2) it was the Commonwealth that sought the rehearing. Had Osman filed for a rehearing (and he may well have), I would have expected a quick denial. But the Commonwealth's filing here is a bit baffling. The Commonwealth can only be aggrieved of the reversal of the overcharged offense. If the basis for the rehearing is an obvious error (perhaps the panel misread the record on some point) which the Commonwealth merely wanted to have corrected, a rehearing petition to the panel and a revised opinion would be the normal route to go. But a rehearing en banc means the Commonwealth disagrees with the legal reasoning of the panel. While I have not seen the petition, which while a public document is not readily available online (note to the OES -- please bring the appellate courts into OCRA and the 21st century), I assume that the Commonwealth is taking issue with the panel's interpretation of Code § 18.2-47 and its construction of the word "punishable" in that statute. The next en banc date (after today, with the Court sitting on two cases) is January 31, 2023, so we will likely see Osman argued then or possibly on February 28.

The four opinions released today are all from criminal appeals -- three of them addressing 2022 filings, so we are beginning to see appeals of right more frequently. Patrick Edward Cornell v. Commonwealth of Virginia is the lone pre-appeal of right case, and it is likely given its docket number that it was a "legislative grant." The issue, however, is one that the Court would likely have addressed in any case, because it involves a peculiar action by Cornell's appointed counsel. When a defendant with appointed counsel insists on filing an appeal, the attorney is required to determine if there is any merit to doing so, and if known can be found, the attorney should file an Anders brief. Anders was a US Supreme Court case in which the Court decided that an attorney had an ethical (and often statutory) duty to the appellate court to not file a frivolous appeal, and that this duty counterbalanced the duty to zealously represent the client. The Court determined that the solution to this dilemma was to have the attorney file a brief that explained why the appeal was frivolous by noting every possible error that might be raised and then showing why it lacked merit and being asked to be relieved as counsel.

As one might guess, filing an "Anders brief" often takes more effort than filing a garden variety challenge to the sufficiency of the evidence or the harshness of an otherwise lawful sentence. It's also more work for the appellate court, because rather than just reviewing the assigned error, the court has to review the record to be sure counsel didn't miss some issue. Plus, the appellant is allowed to submit his own argument that 1) his counsel should not be filing an Anders and 2) all the reasons he thinks the judgement should be reversed. As a result, very few Anders briefs get filed.

But an Anders brief was filed in Cornell . . . sort of. Cornell's attorney filed "n appellate brief

that substantively addresses certain assignments of error but submits others for our consideration under Anders." Sorry . . . What? When I read that, my first thought was "either an appeal is frivolous or it is not, if there is any merit to even one error, you can't file an Anders brief." But it then occurred to me that the attorney was trying to cover his backside by raising frivolous issues that his client was urging, nay, DEMANDING, be included in the brief. May the attorney was trying to avoid a bar complaint (frivolous, to be sure, but still a pain).

However, I am still of the opinion that this is not an Anders situation. Rather, there is another mechanism for dealing with a client who insists that you include the argument that the Moon is made of green cheese (when everyone knows its white cheddar). You file a Hammer appeal. What, you may ask, is a Hammer appeal? Well, I commend to you the Court of Appeals recent decision in Hammer v. Commonwealth, 74 Va.App. 225 (2022) in which the Court resurrected some language for Fitzgerald v. Bass, 6 Va. App. 38 (1988), to the effect that an attorney can balance the duty between not filing a frivolous appeal and the duty to follow the client's demand by telling the Court that counsel has done just that. In essence, you say, "My client has asked me to raise umpteen issues in this appeal, but in my professional judgment none of them are worthy of this esteemed Court's time, so I have selected the one (or several) that I can plausibly raise." Perhaps my favorite quote from Hammer is "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal."

To be fair to Cornell's counsel, his brief was filed before Hammer was released, so his approach of filing a semi-Anders was not unreasonable. In the brief counsel raised five issues, but stated that two of them were without merit. It was a good thought, but today the Court of Appeals, joining with other jurisdictions that have reviewed the issue, holds that Virginia will not recognize a "hybrid Anders." Accordingly, the two frivolous assignments of error are not considered. The three issues that were ostensibly not frivolous -- sufficiency of the evidence, credibility of a witness and the denial of a motion to continue the sentencing hearing -- are given equally short shrift. Without going into details, Cornell was convicted of the sexual battery of his girlfriend's nine-year-old daughter. The Court of Appeals, Judge O'Brien joined by Chief Judge Decker and Senior Judge Haley, affirmed, holding that the credibility and sufficiency issues were matters for the jury and the denial of the continuance was not an abuse of discretion and that in any event Cornell suffered no prejudice for being required to go forward with his sentencing.

Peter Timothy Gionis v. Commonwealth of Virginia involves the "three-strikes" for petit larceny rule of Code § 18.2-104, where a third or subsequent petit larceny is a felony. A quick word about petit larceny. Petit larceny was in Virginia for many years truly "petit" as the line between petit and grand larncey (that is between a misdemeanor and a felony offense) was $50. Naturally, that line was drawn some time back in the 20th century when $50 was a fair amount of money. In the 1800s the line was drawn at $20, which was then considered a considerable sum -- which is why the Seventh Amendment is applicable only to cases "where the value in controversy shall exceed twenty dollars." Eventually, the General Assembly moved the line to $200, then $500, and finally to $1000, where it remains today. Now, Mr. Gionis committed his in May of 2020, back when the line was at $500.

Unfortunately for Mr. Gionis, it is also before Code § 18.2-104 was repealed. You see, as part of the reform of the criminal law that included making the theft of money or property valued at less than $1000 a misdemeanor, the legislature also did away with the statutory provision that a third or subsequent petit larceny would be a felony. This was actually quite a controversial action given that thieves were not only being allowed to steal more valuable stuff, but they could now do it repeatedly without getting a felony record. However, the truth is that the three strikes rule was honored more in the breach than the observance, because it was a handy bargaining chip for plea deals -- "take the deal and we will drop the third petit to a first."

Mr. Gionis apparently rejected a plea deal (the opinion does not say what it was, but its a fair guess that it was to reduce the offense to a misdemeanor), and went to trial. By the time of his trial, Code § 18.2-104 had been repealed and Gionis contended that this meant he was not subject to the enhanced penalty. The circuit court, consistent with Ruplenas v. Commonwealth, 221 Va. 972 (1981), ruled that the change in the law not retroactive. Gionis then entered an Alford plea and appealed this ruling to the Court of Appeals.

The Court of Appeals, Judge Beales joined by Judges Malveaux and Causey, unsurprisingly declines Gionis invitation to overrule Ruplenas. The repeal of Code § 18.2-104 was a substantive change in the law and, thus, is presumed to not to be applied retroactively. As the repealing act gave no indication that the General Assembly thought otherwise, Gionis was subject to the former version of the statute.

Priscilla Ann Holmes v. Commonwealth of Virginia is a "two-fer" in that the opinion has to record numbers, but the opinion does not explain why. As there are only two issues arising from two convictions, presumably Holmes' attorney either filed separate appeals for each conviction or separate appeals for each issue, more likely the former. Holmes was convicted of racketeering under Virginia's state RICO Act. RICO is more often a federal crime; as a state offense, its typically brought in cases such as this where the allegation is that the defendant acts as a "ringleader" but the criminal offenses are committed by proxies.

In this case, Holmes was the wholesale distributor of methamphetamine and the chief witnesses against her were several of her retailers. The Court of Appeals, Judge Fulton joined by Judge Ortiz and Senior Judge Petty, concludes that this evidence was sufficient to prove the racketeering. However, the panel concludes that the jury was not properly instructed with respect to reliability of uncorroborated accomplice testimony, and one that basis the convictions are reversed and the case remanded for a new trial. I suspect that the Commonwealth will at least consider a petition for rehearing en banc or an appeal to the Supreme Court.

Brian Craig Henthorne v. Commonwealth is also a reversal, but not from a conviction. Rather, Henthorne will get a re-sentencing on a revocation courtesy of Judge Malveaux joined by Judges Beales and Causey,the same triumvirate that fave no joy to Goinis. Henthorne was convicted of providing a false ID to a law enforcement officer and sentenced to 180 days, with all time suspended for 12 months. Henthorne was then finishing a sentence for another offense, and when he was released he failed to report to his probation officer "within three days," and in fact never reported. At the "'splain why" hearing, the court imposed 80 days of the suspended sentence.

The issue on appeal is whether the failure to report to probation is a "technical violation" of probation which under Code §19.2-306.1 would limit the ability of the court to impose active time. At trial the matter was discussed in some detail, with the court concluding that because Henthorne never reported for supervision, his violation was not technical, interpreting the "within three days" as requiring the probationer to eventually report before being violated. The Court of Appeals finds that this is not a proper construction, finding that the violation is for failure to report and that the three days is merely a reasonable time for the probationer to do so.

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