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

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.

Updated: Nov 22, 2022

The Court of Appeals issued two opinions last week, but a day later than usual owing to the election day holiday, and issued two more today. The most noteworthy of these is Jordan Heath Joyce v. Botetourt County Department of Social Services. It is noteworthy on two grounds: First, it is a reversal of a termination of parental rights -- a rare occurrence; second, the party whose rights were improperly terminated was the child's father, which is also rare as, tragically, in most TPR cases the father is incarcerated or absent entirely and, even more rare in this case, the mother did not also appeal the termination.

The issue in Joyce, as in most such cases, is whether the Department of Social Services adhered to its statutory directive to provide appropriate services to both the parent and the child in an effort to restore custody of the child to the parent, usually referred to as a goal of "return to home." In this instance, the record shows that while there was a protective order in place with respect to Joyce and the child, DSS did provide a plan for visitation with Joyce, but that this did not occur due to Joyce's "health situation." The protective order was later lifted, after it was determined that the allegations made in obtaining it were unfounded.

Apart from finding that placement with Joyce was not a viable option, it appears that DSS did not include Joyce in any of the plan for services offered to the mother and child. DSS conceded that he had contacted them at least seven times seeking to be included in the process, but DSS did not arrange for visitation or provide any services. While the circuit court found this to be "troubling," it nonetheless found that termination of Joyce's residual parental rights was appropriate because no services could have been offered during the time that the protective order was in place.

Given that the standard for termination of parental rights is clear and convincing evidence, it should come as no surprise that the Court of Appeals, Judge Humphreys joined by Judges Huff and Atlee, reversed the judgment. First, the Court concludes that the evidence did not support the circuit court's conclusion that DSS could not provide services to Joyce while the protective order was in place. The record demonstrated that Joyce was allowed visitation even during that period and, while he had been unable to participate in visitation, nothing would have prohibited DSS from setting goals for Joyce to prepare for parenting the child. As to the sufficiency of the evidence with respect to whether adequate services were provided to Joyce, the record was abundantly clear that no services were provided even after the protective order was lifted, despite Joyce's repeated inquiries.

David Brandon Cannaday v. Commonwealth of Virginia involved a charge of possession of over 100 grams of methamphetamine. Cannday received a 40 year sentence for this crime, of which the circuit court required him to serve the mandatory minimum of 20 years. On appeal, Cannaday contends that the trial court erred in failing to apply the safety

valve provision of Code § 18.2-248(H)(5).

What, you may ask, is a "safety valve provision" in this context? A “safety valve” is an exception to mandatory minimum sentencing laws. A safety valve allows a judge to sentence a person below the mandatory minimum term if certain conditions are met. Safety valves can be broad or narrow, applying to many or few crimes (e.g., drug crimes only) or types of offenders (e.g., nonviolent offenders). They do not repeal or eliminate mandatory minimum sentences. However, safety valves save taxpayers money because they allow courts to give shorter, more appropriate prison sentences to offenders who pose less of a public safety threat. This saves our scarce taxpayer dollars and prison beds for those who are most deserving of the mandatory minimum term and present the biggest danger to society.

So, now that we have defined the term, what exactly is the particular safety valve in this instance? As relevant to this appeal the statute provides that the "mandatory minimum sentence shall not be applicable if the court finds that . . . (ii) the person did not use violence or credible threats of violence or possess a firearm or other dangerous weapon in connection with the offense ." (Emphasis added.) There's a lot more to it than that, but the parties agreed that the real issue was whether Cannaday possessed a gun "in connection with" the drug offense. Cannaday admitted that he owned a gun and that it was in his constructive possession at the time he also possessed the drugs, but maintained that the it was not possessed in connection with the drug offense. He further maintained that the circuit court was required to make a specific finding that it was, whereas the court here merely stated that it found the safety valve "did not apply" without stating a specific factual finding.

This particular safety valve has not been interpreted by either appellate court, but similar statutes have been and the Court of Appeals, Judge Callins joined by Judge Chaney and Sr. Judge Petty, applies the same analysis here. First, the Court concludes that the circuit court was not required to make an express finding that Cannaday possessed the gun in connection with his possession of drugs. Rather, this was a reasonable inference from all the attendant circumstances.

Michael Charles Hogle v. Commonwealth of Virginia involves a DUI conviction and a motion to suppress the evidence. Specifically, Hogle, whose arrest was in 2019, maintained that Code § 46.2-646(E), which went in to effect in 2021, should apply retroactively to invalidate the stop of his vehicle. Subsection E eliminated the "primary offense" status for conducting a stop for an expired registration sticker that was less than 4 months overdue. The "usual rule" according the the Court of Appeals, Sr. Judge Petty, joined by Judges Fulton and Ortiz, is that "[a] tatute is retroactive only if the legislature includes an express provision or other clear language indicating that it applies retroactively." There was not such indication in the 2021 act, so the stop was valid at the time.

William Adam Boyd v. Constance Weisberg is the second "new jurisdiction" case in which a published decision has been issued -- that it, it involves a civil matter that previously would have been heard by the Supreme Court on petition, but is now an appeal of right to the court of appeals. Boyd owned and operated "To Charge Virginia," a credit card processing service, and Weisberg was a contract sales agent for the company. A dispute developed between Boyd and Weisberg, and when the latter indicated that she would bring suit to recover monies she believed were due to her, Boyd did something which on its face is very suspicious -- he formed a new out-of-state LLC and transferred all of To Charge Virginia's assets to this new entity in exchange for a payment of $10 cash in hand, effectively rendering To Charge Virginia insolvent.

Weisberg brought suit against To Charge Virginia, the new entity, Boyd and by subsequent amendment, another of his entities, VeriPay, which he formed during the pendency of the litigation and to which he transferred all the assets of the second entity. I am sensing a pattern here.

Weisberg ultimately prevailed before the jury, which awarded her $350,000 against Boyd personally for his fraudulent transfer of assets from To Charge Virginia, the amount of her ad damnum. The circuit court affirmed this verdict, and awarded Weisberg $149,041.90 in attorney's fees pursuant to Code § 55.1-403.

Although Wesiberg had also sought to "pierce the corporate veil," but dropped that effort, so the case here relies on Code § 55.1-403, the fraudulent conveyance statute. After the verdict, Boyd tried to argue that the statute did not apply to him personally because his sole role in the transfer of assets was as a corporate representative, not in his private capacity. The problem is Boyd had agreed to an instruction that permitted the jury to find him personally liable. The circuit court declined to review the instruction after the fact.

The Court of Appeals, Judge Athey joined by Judges Humphreys and Callins, agrees with the circuit court that the objection came too late. While a circuit court may review an instruction for error after the verdict is returned, it is not required to do so. In such cases, the instruction becomes the "law of the case" even if the instruction was inaccurate. This is so, even though Weisberg withdrew her attempt to pierce the corporate veil. Notably, the Court does not say that Boyd would have been correct to assert that his role as a "corporate representative" shielded him from personal liability -- in not doing so, the Court was probably thinking in terms of substantial justice having been done in this case and not wanting to provide any ammunition for a malpractice suit against Boyd's trial counsel -- which is likely coming anyway.

Boyd also contended that the fee shifting provision of Code § 55.1-403 did not apply to him because he was not personally a "participant" in the fraudulent transfers. The Court makes short shrift of this noting that Boyd unquestionably participated in the fraudulent transfers as that term is usually understood. Boyd also raised for the first time on appeal an objection to the verdict form used by the circuit court, but this issue is disposed of under Rule 5A:18.

The Court of Appeals broke a long string of issuing cases only in criminal matters (assuming you count the expungement decision from mid-October as a criminal matter), and issues two opinions, one in a Worker's Comp case and (drum roll please) one in a civil cases that is not from a domestic relations case. As the Sage of Virginia Beach correctly points out, this is the first published decision from such as case since the Court of Appeals started hearing these former Supreme Court jurisdiction cases. As Steve Emmert has graciously ceded to me the summary of Court of Appeals cases that were his former bailiwick when they were heard on the opposite side of Franklin Street from the Court of Appeals, I shall begin with Dakshay Patel, et al. v. Jonathan I. Rabinowitz ex rel. Lakhani Associates, LLC, et al.

The case involves the Uniform Interstate Depositions and Discovery Act (UIDDA), Code §§ 8.01-412.8 to 8.01-412.15 and address whether an out-of-state judgment creditor may serve an out-of-state document subpoena on third parties in Virginia when the judgment creditor only suspects that those third parties might hold property or assets belonging to the judgment debtor. The answer is no. Why did I give up the prize so readily? Well, because quite frankly this a 14-page discussion of how this UIA is interpreted and applied in other states to answer this question, which is one of first impression in Virginia. It includes a history of the slow process of states adopting this particular UIA -- something fairly common to all UIAs.

Here's the short version -- the law of Virginia controls whether the subpoena is proper and under Virginia law a post-judgment creditor subpoena can only be served on a known bailee or debtor or a third-party creditor of the judgment debtor. While acknowledging that Virginia follows a minority view in such cases, the fact remains that it is Virginia's law that applies under the UIDDA and it is not for the Court to question the wisdom of the General Assembly in adopting the minority view.

I should like to tell you that Medical Management Intl. and Travelers Indemnity Company of America v. Pamela Jeffry from the Workers' Compensation Commission, and thus an "old jurisdiction" case, was more lively, but I am told that it's wrong to lie. If fact, it's sort of a "well duh" opinion. By this I mean, I really can't see how the employer and carrier brought this case with a straight face, because the issue is whether an injured worker who was rendered unable to drive is entitled to receive reimbursement for transportation costs when going to medical appointments related to her compensible injury. Now, the issue before the Commission was whether Jeffry had to give notice to her employer that she was using a "rideshare" service for this purpose (presumably to allow them to provide an alternative transportation method). The Commission found that the employer and carrier suffered no prejudice as a result of the lack of notice.

The "well, duh" part of the opinion comes from the determination of the Court of Appeals that prejudice is not the issue, it's whether the Workers' Compensation Act requires notice of the need for transportation at all. The Court quite correctly concludes that there is no such requirement. The Court notes that the Act is replete with notice requirements that limit a worker's ability to get certain benefits or to make certain claims, but there is nary a hint of such requirement when necessary transportation expenses are compensible.

I am curious as to whether the employer and carrier were actually willing to offer some form of transportation that would have been more affordable to them than the rideshare app? The opinion states that they did not offer transportation to Jeffrys, but presumably id she had been proving them notice that she need it, they would have had to make some arrangements. If so, I wonder if it would have been as convenient for Jeffry. While one might argue that convenience is not a paramount concern in such situations, I tend to think that most employers and carriers would not be able to provide transportation to medical appointments at a lower cost unless it was through a service that made multiple pick-ups and stops. More to the point, Jeffrys only used the service as a "last resort," whereas had her employer or the carrier required her to use an "authorized" service, she likely would have used it all the time.

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