A Pro Se Litigant Wins, a Represented Litigant Loses

The Court of Appeals issues two published opinions today, and one of them represents a fairly rare occurrence -- a pro se appellant obtaining a reversal and what's more unusal, it's in a legal malpractice case arising from a criminal conviction. The other case results in a 37-page opinion affirming a criminal conviction.

Mark O'Hara Wright v. Andrew C. Graves, Esq. starts back in 2012 when Wright retained Graves to represent him in a criminal trial on multiple charges including a grand larceny conviction. Wright was sentenced to 11 1/2 years imprisonment. In June 2021, just three months before his scheduled release, Wright was gratned a writ of habeas corpus in the 4th Circuit Court of Appeals, which found that the Supreme Court of Virginia had overlooked a clear error of law in dismissing his state habeas petition. Wright v. Clarke, 860 F. App’x

271 (4th Cir. 2021). The clear error of law was that Graves failed to object when, during trial it became clear that the Commonwealth was not able to prove the original charge of robbery as a principal in the second degree, the charge with which he had been indicted, and instead asked that the jury be instructed on grand larceny from the person. Wright did not object to the instruction, agreeing with the Commonwealth that this was a lesser included offense of robbery -- except, of course, it isn't, because grand larceny from the person requires proof of the value of the property taken, which is not an element of robbery.

Rut ro, indeed. It's pretty embarrassing that it took 10+ years to fix this. Its even more shocking considering that what Wright and his accomplices stole was a couple of pre-made sandwiches and two cases of beer.

Wright brought suit against Graves for malpractice. The case was swiftly dealt with in the circuit court, which sustained a demurrer alleging that Wright had not successfully plead that he was actually innocent of the crime. The Court of Appeals, Judge Raphael joined by Judge Callins with Judge Lorish concurring, reserved and remand for further proceedings.

The first thing to remember about a demurrer and an appeal from the sustaining of one is that unlike most appeals, the standard of review is flipped on its head with the evidence being view in the light most favorable to the party opposing the demurrer. Moreover, the "facts" are limited to what is found within the four corners of the complaint and those that can be fairly inferred from them. Here, the circuit court failed to apply that latter principle, apparently finding that the failure to actual plead "I didn't do it!" was the end of the inquiry as to whether Wright was asserting his actual innocence.

But, as the majority opinion points out, Wright did plead the facts on which the 4th Circuit based its ruling that he could not have been convicted of the crime because it was not properly charged and, at the very least, that he had not been convicted of the offense. Whether Wright can prove that at trial is another matter, but his pleading is sufficient to survive the demurrer.

Judge Lorish writes separate to address "a question Wright raises that we are not deciding today," which is whether his case falls into the narrow category of these were actual innocence is not a necessary element of legal malpractice in a criminal case. She suggests that there are cases where even lack of actual innocence ought not to bar a criminal defendant from obtaining relief in malpractice where the conviction results from an uncharged offense.

Thomas Edward Clark v. Commonwealth of Virginia is the longer of today's two opinions and results in the affirmance of Clark's convictions for first-degree murder, rape, and abduction with intent to defile. In addition to challenging the sufficiency of the evidence, Clark alleges that the Commonwealth was improperly permitted to admit evidence that was not timely disclosed, that the court improperly allowed mid-trial amendments of the indictments to conform to the evidence, and that the verdict should have been set aside for juror misconduct -- specifically the fact that one juror did not reside within the venue of the trial and failed to disclose this during voir dire.

I will not go into the graphic details of the crime. Suffice to say that the nature of the offenses charged was well justified by the circumstances of the crimes. Clark was swiftly identified as a suspect and forensic evidence including DNA established his culpability within a degree sufficient to indict and ultimately convict him.

I will interject here a comment on the qualified language of the preceding sentence. It is common for journalist and even courts to use hedging language when describing the guilt of a criminal defendant. This is because we recognize that trial's never establish the positive factual guilt of a defendant -- only the legal guilt. The possibility of a wrongful conviction is never fully eliminated because there might be legal error in any case and factual error in many, though not all, cases. This often leads the public to believe that there is some doubt as to the defendant's guilt, and in many if not most cases that is true -- because the "reasonable doubt" standard does not require the elimination of all doubt.

The evidence that Clark objected to and the subsequent amendments related to whether the offense occurred "on or about May 9, 2019" or "between May 8, 2019 and May 9, 2019". Clark argued that he had prepared an alibi defense for May 9, but not for May 8. The Court of Appeals, Sr. Judge Petty joined by Judges Raphael and White, found that assuming it was error to admit the testimony that related to cellphone data from the victim's phone on May 8 and 9, was harmless because this evidence was not "the linchpin" of the Commonwealth's case. Similar the indictment amendment did not change the nature of the charge because the date of the offense is not an element of the crime. Even presuming that Clark premised his alibi defense on his inability to have committed the crimes from midnight to midnight on May 9, this would not have precluded the jury from finding that Clark committed the crime on the day before or after. "On or about" is an estimate, not a limiting statement.

Finally, it was not disputed that one juror deliberately kept from the court his residence in another jurisdiction. Several of Clark's arguments on this issue were procedurally barred and the remainder fail because he could not show that the juror misconduct adversely impacted his trial resulting in his conviction.

The Supreme Court of Virginia's Merit Docket

While I traditionally leave commentary on the Supreme Court of Virginia to the Sage of Virginia Beach, as I am preparing to present a CLE tomorrow reviewing the criminal appellate decisions of that Court and the Court of Appeals, I thought I would share a few observations on the higher court's merit docket, which remains slim, though much enlarged from just a few months ago when the Court had only 6 unargued pending appeals.

The Court released its November argument docket today, and from that we learned that the number of merit cases pending decision had grown by one as the Court will hear an appeal of right from the State Corporation Commission. With this addition, the Court's known merit docket (there may be other SCC or original jurisdiction cases that have not been publicly announced) to 23. Just a few years ago, it would not have been unusual to see 23 cases on the argument docket, with perhaps half that number argued but not decided and half-again as many waiting to be briefed and set for argument. In other words, the Court's active merit docket has fallen by roughly 2/3's in the last decade.

Another point of interest is that of those 23 cases, 5 are Commonwealth's Appeals from adverse (the the Commonwealth, that is) decisions of the Court of Appeals, while 6 are appeals by criminal defendants from the Court of Appeals. Thus, excepting the SCC case that did not proceed from the Court of Appeals, this means that half the docket involves criminal matters and half civil/administrative law. The docket previously would have been weighted more heavily to civil/administrative matters, My impression is that 1) the balance between criminal and civil is the result of the shift of civil appeals to the Court of Appeals and 2) the Supreme Court's new perspective that it will be that of a court of review.

The "court of review" paradigm also explains the number of Commonwealth's Appeals being granted. Previously, the Court would have been reticent to take these appeals (and defendant's appeals as well), because the judgments of the Court of Appeals was regarded as having a de facto (and in misdemeanor cases, de jure) finality in criminal matters absent an issue of significant precedent or constitutional dimension. I think the Court is less likely to be deferential to the Court of Appeals now, especially in Commonwealth's Appeals, if for no other reason than civil and criminal appeals are now on an equal footing -- each having received a full review in the Court of Appeals, whereas previously the civil cases were coming directly from the circuit court.

For reference of those who follow the Court (we few, we happy few), here is my estimation of the Supreme Court's current merit docket:

Supreme Court of Virginia Merit Docket

Argued

1. 211061 Vlaming v. West Point School Board, et al. (November 2022)

2. 210389 Ken McKeithen, Successor Trustee etc. v. City of Richmond (June 2023)

3. 220596 Commonwealth of Virginia v. Larry Dale Puckett (September 2023)

4. 220715 Commonwealth of Virginia v. Danjuan Antonio McBride (September 2023)

5. 220536 Heath Nicholas Moison v. Commonwealth of Virginia (September 2023)

6. 211114 Andrew Schmuhl v. Harold Clarke, Director (September 2023)

Set for Argument in November 2023

1. 230400 Verizon Virginia LLC v. State Corporation Commission, et al. (Appeal of Right)

2. 230127 Commonwealth of Virginia v. Emily Katherine Delaune (Date Granted: 05-31-2023)

3. 220382 Commonwealth of Virginia v. Joseph Eugene Smith (Date Granted: 03-08-2023)

4. 230173 Raymond Travis Swinson, Sr. v. Commonwealth of Virginia (Date Granted: 06-20-2023)

5. 230115 Bryant McCants v CD & PB Enterprises, LLC (Date Granted: 06-07-2023)

6. 220445 Dwayne Lamont Sample, Jr. v. Commonwealth of Virginia (Date Granted: 05-03-2023)

7. 220499 Terrence Jerome Richardson v. Commonwealth of Virginia (Date Granted: 02-24-2023)

Granted Appeals

1. 220654 Chadwick Dotson, Chairman, etc. v. Gilbert Merritt, III (Date Granted: 03-03-2023)

2. 230199 Emergency Physicians of Tidewater, PLC, et al. v. Patricia Hanger (Date Granted: 09-18-2023)

3. 230260 Carter, Executor etc. v. Wake Forest Uni. Baptist Med. Cen., et al. (Date Granted: 09-15-2023)

4. 230327 Travis Bland-Henderson v. Commonwealth of Virginia (Date Granted: 09-13-2023)

5. 230344 Michael Melvin Fary v. Commonwealth of Virginia (Date Granted: 09-14-2023)

6. 230365 Montalla, LLC V. Commonwealth of Virginia, et al. (Date Granted: 09-15-2023)

7. 230204 Andrew Ryan Younkle v. Suzanne Marie Schillmoeller (Date Granted: 09-22-2023)

8. 230323 United Services Automobile Association v. Bruce A. Estep (Date Granted: 09-21-2023)

9. 230343 Commonwealth of Virginia v. Marcus Cleophus Holman (Date Granted: 09-21-2023

10. 230333 Joshua Adam Eckard v. Commonwealth of Virginia (Date Granted: 09-28-2023)

I've been busy, and so has the Court of Appeals -- the Supreme Court not so much

I am more than a week behind in posting my summary and analysis of recent Court of Appeals' decisions, but with good reason. I have been occupied with the Fall Seminar of the Virginia Mountain/Valley Lawyers' Alliance and it's Annual Meeting in Winchester which concluded on Saturday, then I was in Richmond to argue before the Court of Appeals. Today, the Supreme Court of Virginia did release a single opinion, admirably summarize by the Sage of Virginia Beach, but not from the case that has been languishing on the docket, Vlaming v. West Point School Board, et al., now almost 11 months post-argument, or even the last remaining case from the June docket, Ken McKeithen, Successor Trustee etc. v. City of Richmond. Instead, the Justices whipsawed an opinion argued just 4 weeks ago. Having granted four more appeals from the August writ panel, there are now 16 cases in some stage of being prepared for oral argument before the full court. The October writ panel has just 36 petitions to be heard.

Ernest L. Parrish v. Quinton B. Callahan, et al., the lone published opinion from last week, is about rescission of a foreclosue sale. The opinion of the Court of Appeals, Judge Lorish joined by Chief Judge Decker and Judge O'Brien, is 15 pages long, but it can be summarized with this sentence from the opening paragraph: "We affirm the circuit court’s decision to sustain the demurrer because the statute Parrish relies on expressly precludes the type of relief he seeks (voiding the sale)."

Parrish had argued that he did not receive the notice that Code § 55.1-321 requires for a residential homeowner, or in the alternative, that the lack of adequate notice (30 days pre-sale instead of 60 days) was grounds for equitable rescission. He filed suit against the substitute trustees who conducted the foreclosure and they demurred. The circuit court sustained the demurrer and off went Mr. Parrish to the Court of Appeals.

The issue of lack of notice was really part and parcel with the adequate notice (the Court says he "repackages" the first argument as the second -- a nice turn of phrase). Parrish in fact received at least two notices, its just that both were sent less than 60 days before the proposed sale date.

The problem is not with whether the notice was in violation of the statute or otherwise inadequate, but the nature of the relief Parrish wanted -- the have the sale voided and the property returned to him. This, of course, would work a significant hardship on the purchaser, and for that very reason the General Assembly does not permit rescission as a remedy.

Commissioners of Accounts are appointed by the circuit courts to provide “general supervision of all fiduciaries admitted to qualify in the court or before the clerk of the circuit court and shall make all ex parte settlements of the fiduciaries’ accounts.” Virginia Code § 64.2-1200. You don't often see them as parties in civil cases, but this week the Court of Appeals issued a published opinion challenge a commissioner's report. In Kishna Shirese Minor, et al. v. Anne M. Heishman Commissioner of Accounts, the fiduciary was required to forfeit her bond of over a half million dollars after the Commissioner found irregularities in the administration of an estate of an incapacitated adult, Minor's grandfather.

The commissioner, responding to complaints of relatives, conducted an investigation and determined that Minor had misappropriated assets of the estate and could not adequately account for the remaining assets. The commissioner determined that the estate had been prejudiced to the tune of $574,462.27, approximately half its assets. The circuit court adopted the commissioner's findings and required Minor (or, more precisely, the bonding company) to pay up.

The Court of Appeals affirms this judgment addressing Minor's 10 (!) assignments of error in a 30 page opinion authored by Judge Fulton joined by Judges Humphreys and Malveaux. The most interesting argument in the appeal is that the commissioner could not be objective because she was acting as both an adversary and an investigator. While it may often seem to a fiduciary as if the commissioner is "the opposing team," in truth commissioners are more akin to referees, neutral arbiters of the duties of the fiduciary. So, naturally, when the commissioner throws a flag on the play, the fiduciary may find themselves arguing with the "ref," but that does not make the commissioner the opponent any more than objecting to the ruling of a court makes the court the opposition. And, just like arguing with the ref, arguing with the commissioner rarely gets you anywhere.

Jamal Kelvin Bailey v. Commonwealth of Virginia and Hugh Cameron Green v. Commonwealth of Virginia (a third appeal arising from the same incident was not designated for publication) involve the appeals from convictions for three counts of first-degree murder, three counts of abduction with the intent to extort money, three counts of child abuse or neglect, three counts of child endangerment or cruelty, one count of robbery, one count of conspiracy to commit robbery, and one count of conspiracy to commit abduction with the intent to extort money. What may not be immediately apparent in the recitation of this litany of very serious crimes is that the underlying scenario is a drug deal. The plan was for a group of men to travel from Philadelphia to Fredericksburg to rob Michael Coleman of "cash and coke." The ringleader of this conspiracy was Coleman's uncle -- nice family.

Thing did not go as planned, and at the end of the botched "drug deal" Coleman, his girlfriend and her 14 year-old son were dead and two children under the age of two were left in the home unattended amidst the carnage. Police were able to identify the perpetrators after one of their number was arrested on unrelated charges and confessed to being involved in the crimes.

Apart from challenging the sufficiency of the evidence, Bailey's appeal has just one issue of note. After his conviction, Bailey and Green sought to have the circuit court direct his attorney to release "restricted dissemination discovery materials" to him. Now why would Bailey and Green want access to these materials after his conviction? Perhaps the best answer to that question is to not that the co-defendant who "turned states'" expressed concern for the safety of his family from the depredations of Baily, Green and their associates.

The argument that the court should have permitted counsel to turn over the restricted material was based in an interesting interpretation of counsel's duty under VRPC to give a client the client's file on demand. The file, after all, belongs to the client and materials reviewed by the attorney in discovery are typically part of that file. The Court of Appeals, Judge Beales joined by Judge Causey and Sr. Judge Haley, neatly addresses this argument by noting that where a court properly orders an attorney to do some act that might otherwise be viewed as a violation of the attorney's duty to the client, the attorney is required to follow the court's order and is, therefore, by definition, not violating the Rules of Professional Conduct.