Three New Appellate Judges for Virginia

The Virginia General Assembly on Friday elected two judges as new justices on the Supreme Court of Virginia.  Virginia Court of Appeals Judge Wesley G. Russell Jr. of Henrico County will begin a 12-year term on the court beginning July 1. One month later he will be joined by Fairfax County Circuit Judge Thomas P. Mann. The General Assembly elected Halifax Circuit Judge Kimberley S. White, a former commonwealth’s attorney, to the newly opened spot on the Virginia Court of Appeals for an eight-year term that begins July 1.

Russell, 52, was a deputy attorney general under then-Attorney General Ken Cuccinelli, and assisted Cuccinelli in an investigation of grant money used by a former University of Virginia climate scientist. He was also a partner at the law firm of McSweeney, Crump, Childress & Timple PC. He started his career as a law clerk for the Virginia 13th Judicial Circuit. He is from Hampton and received his Bachelor of Arts from University of Virginia and his J.D. from Antonin Scalia Law School (previously George Mason University School of Law).

Mann joined the circuit court in July 2016. He was previously a judge for the 19th Judicial District’s Juvenile and Domestic Relations District Court from 2006 to 2016. Mann received his undergraduate degree from New York University and his J.D. from the Washington College of Law. Before becoming a judge, Mann was with the law firm of Greenspun & Mann, PC., where he practiced representation of children, adults and families, in criminal, personal injury, contract, construction. He worked for two years at Deckelbaum, Ogens & Fischer in Washington, D.C. In 2015, Judge Mann and his wife suffered personal tragedy when their only child, Grace Rebecca, was murdered by her housemate Steven Briel in 2015. Briel claimed insanity, but was convicted and sentenced to life in prison.

White was appointed to the circuit court in 2012 by Gov. Bob McDonnell, and was the first female judge for the circuit. She received her undergraduate degree from the University of Mary Washington in 1985 and her J.D. from Mercer University. White, who was the elected Commonwealth’s Attorney in Halifax County before going on the bench, previously served as a partner with the Woods Rogers in Danville and before that was an assistant and a deputy commonwealth’s attorney for the City of Lynchburg, as a special assistant United States attorney for the Western District of Virginia, and as chair of the Virginia State Bar Committee on Lawyer Discipline. Her sister-in-law is Judge Ellen White of the 24th District Juvenile and Domestic Relations District Court.

Judge Manuel “Manny” A. Capsalis, a district court judge, was elected to succeed Mann on the Fairfax Circuit. Attorney Dipti Pidikiti-Smith will take Capsalis’ seat on the district court.  The General Assembly did not fill White’s seat on the 10th Circuit.

Statistics for the First Quarter of 2022

A few days ago I posted statistics for the first month of filings in the “new” Court of Appeals.  This evening I entered the remaining data for the first quarter of 2022.  Here is the skinny on what was filed in the first 90 days of 2022:

There were 490 cases assigned record numbers.  As I have previously explained, not all filings in the Court of Appeals are assigned record numbers, but it is difficult to track those few filings that bypass the docket (typically, these are motions that are expedited by the Court).  The pace of filings for criminal appeals of right ticked up slightly from January, while civil appeals stayed level and domestic relations appeals declined fairly sharply from 30 filed in January to just 60 total by the end of March.  The breakdown of filings in all categories is:

244 Criminal Appeals

95 Civil Appeals

60 Domestic Relations Appeals

24 Appeals from Decisions of the Virginia Workers’ Compensation Commission

15 Filings over which the Court Lacked Jurisdiction

15 Petitions for Writs of Actual Innocence

8 Commonwealth’s Appeals from Pre-Trial Orders

7 Appeals from the Granting or Denying of a Bond in the Circuit Court

7 Appeals from the Granting or Denying of an Injunction in the Circuit Court

4 Appeals from Administrative Agency cases

4 Appeals from Sexually Violent Predator Commitment Reviews

2 Petitions for Writs of Mandamus

2 State Employee Grievance Appeals

1 Appeal from a Civil Contempt

1 Appeal from a Criminal Contempt

1 Habeas Petition

On the 490 cases, 119, just under 25%, have already been disposed of in some fashion:

66 were dismissed

21 were withdrawn

13 were summarily dismissed (a disposition only used for petitions for writs of actual innocence)

9 were transferred to the Supreme Court of Virginia

5 were denied

3 were affirmed by unpublished order

2 were reversed and remanded by unpublished order

The dismissal rate was 13%, but that number is sure to go up as many of these cases are still awaiting the transfer of the record from the circuit court.  36 of the dismissed appeals were filed pro se, which means 30 dismissed appeals were filed by counsel.  Now, it is entirely possible that not all of those 30 were dismissed for a procedural error made by counsel.  For example, an appeal may have been noted from an apparently final order which, after careful review, was determined to not be ripe for appeal – an easy thing to miss and the dismissal is without prejudice to refile once an appealable order is entered.  But it is certain that at least some of those were dismissed for a missed deadline, and that’s not a good thing.  Counsel filed appeals being dismissed (so far) in 6% of the cases filed is 6% too many.

One other point of note.  In the first quarter of 2022, one 1 Anders brief has been filed thus far.  It is possible that as more briefs become due this number will increase, but if only 1 of 244 criminal appeals merited an Anders brief, this calls into question whether Anders is really a necessary option for court-appointed attorneys.  I have recently posted my view that Anders briefs are rarely, if ever, really required from an ethical standpoint, and are used so infrequently that many attorneys do not know what a Anders brief is.

I am working toward getting up-to-date stats for the first half of the year.  Perhaps I will spend my 4th of July compiling a more detailed analysis of what this new era in Virginia appellate law is shaping up to be.

A Fortunate Young Lady is not on Life-Support, but Chivalry Probably Is . . . and a 2-1 Decision in a 'Splain Why

The Court of Appeals gives us two published opinions today, both in criminal cases and with predictable results, though the latter may be subject to further review.

Adrian Donnel Aley v. Commonwealth of Virginia is a challenge to the sufficiency of the evidence for felony hit-and-run involving personal injury and felony eluding. Aley did not challenge convictions for reckless driving by speed and endangerment.  The facts certainly support these latter two convictions as Aley was observed going well above the 50 MPH limit on a dark, winding, country road in Stafford County.  Sherriff’s Deputies initiated a high-speed chase before losing sight of the vehicle.

Aley’s girlfriend, at least at the time, was a passenger in the vehicle and testified that he told her driving at a high rate of speed was an “adrenaline rush.”  He very courteously adjusted her seat belt and reclined her seat to “relax” her and then proceeded to demonstrate his point.  When he nearly rear-ended another vehicle she became “apprehensive” (that’s judicial understatement for “scared out of her wits”).

Eventually, Aley flipped the vehicle while attempting to break.  The couple fled to the woods to avoid detection.  Although his girlfriend told him she had been injured in the crash and “needed to go to the hospital,” Aley insisted they had to “run from the cops.”  They eventually made their where to Aley’s home where his brother administered first aid.

The crashed vehicle was not discovered until daylight.  There was blood inside the vehicle.  It was “obvious” to the experienced investigator that there had been two passengers and that one or both were injured.

Tracing the car to Aley’s home, which he shared with his parents, Aley’s father denied to the investigator that the occupants of the vehicle were present.  Later, Aley, overheard by the girlfriend, told his father that “his friend” was driving the car when the accident occurred.  Chivalry for Aley is apparently limited to helping the damsel relax before almost killing her.

Eventually, the girlfriend fessed up to law enforcement.  Fortunately, her injuries, though significant were to soft tissue.  Aley was charged with the crimes of which he was ultimately convicted.

At trial and on appeal, he argued that the deputies’ cruiser had never been sufficiently close to his vehicle for it to be proven beyond a reasonable doubt that he was aware that they were attempting to conduct a traffic stop.  The circuit court rejected this argument at the motion to strike.  After conviction by the jury, Aley moved to set aside the hit and run, arguing that Aley the Commonwealth failed to prove that he knew or should have known of the passenger’s injuries because she never “communicated her injuries” to him and they were “not visible” the day of the incident.  The circuit court overruled the motion to set aside.

The Court of Appeals deals with the second issue first, noting that the requirement of the hit and run with injury statute does not require the driver to be aware of the precise nature of the injury, but to render aid to anyone who might be injured.  Here, the evidence clearly showed that the girlfriend communicated that she wished to go to the hospital and Aley declined to assist her to do so.  This was sufficient for the jury to find that Aley had not rendered aid.

With respect to the evidence supporting proof that Aley was aware that the deputies were attempting to get him to stop, well, let’s just say that while there was considerable circumstantial evidence that Aley should have seen the flashing lights, the real clincher here is the girlfriend’s (I think we can assume ex-girlfriend’s testimony, if she has any common sense) testimony of a statement Aley made most decidedly against his interest has he accelerated away from the cruiser: “Oh s*** . . . there is cops, I have got to run.”

Jessie Lee Green v. Commonwealth of Virginia, today’s other published opinion, is from a “’splain why” docket.  A “’splain why” docket for those not familiar with the term refers to the day set aside by the court the here revocations of parole or probation where the judge would like the defendants to ‘splain why they shouldn’t be sent back to jail or prison.

In Mr. Green’s case, the issue was whether the court would send him to jail on a suspended A&B on a law enforcement officer and petit larceny, serving six months of a two year total sentence.  Green subsequently committed another larceny and in addition to serving time for that offense was revoked on the prior probation.

Upon his next release, Green turned away from crimes against the person and property and instead succumbed to the siren call of illicit drugs.  Once again asked to ‘splain why, Green obtained a continuance and during that time, new laws regard the ability of the trial courts to impose time following release became effective.  The Commonwealth, anticipating that Green would likely assert that these laws now applied to his case, presented the court with two sets of guidelines – one applying the law in effect at the time of the violation and another for the date of the hearing.  The court ruled that the changes to the law were procedural, not substantive, and thus were not applicable to a case continued from before the effective date of the new law.

The Court of Appeals affirms, and that is to be expected given that, as the main opinion points out, retroactive application of laws is not favored in Virginia.  But as there is a “main opinion” there must be a separate opinion, and indeed there is.  Judge Chaney dissents.  In her view, the change to the saw was substantive in that it limited the authority of the trial court to impose sentences in revocations beyond the original term that might have been imposed for “technical” violations.

I suspect that this will not be the last word on this issue and that construction and determination of application of the new law regarding revocation is ultimately destined for the Supreme Court.  If I were to hazard a guess, I think that the majority view here is more likely to find a receptive audience in the higher court, but it is difficult to say this with any certainty while two seats remain unfilled for the active seven member court.

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