In the Virginia Mercury today, Ned Oliver reports that Attorney General Jason Miyares wants 75 new positions to handle an “unexpected” upturn in criminal appeals to the Court of Appeals under the appeal of right law. Under the new law, the AG’s office represents the Commonwealth in all criminal appeals. In January, 300 appeals were assigned to the Criminal Appellate Division — this includes both appeals that were pending at the writ stage on January 1 and newly filed appeals, though probably very few of those were ready for assignment to the AG as they would not yet have had records transferred from the circuit court.
Now within the appellate bar, there was much debate as to whether the new “appeal of right” process would result in more civil cases being appealed. The general consensus was, however, that criminal appeals would not see a significant uptick. There were good reasons to think this, and they still apply. First, most criminal cases are resolved by plea agreements that include an express waiver of the right of appeal. Of those cases that do proceed to trial or that are based on an “Alford plea,” which reserved the right of appeal, most of the defendants are indigent and, thus, there is no financial bar to their seeking an appeal — the state provides for the costs of the attorney and preparing the record (charging the defendant only of the conviction is affirmed).
What has changed is that now all appeals in criminal cases will go directly the the Attorney General. Previously, the first stage of the appeal was handled by the Commonwealth’s Attorney, and the AG got involved only if an appeal was granted, which was in only about 20% of the appeals. Therefore, there is an obvious solution to the AG’s complaint — Have the Commonwealth’s Attorneys’ Offices represent the Commonwealth in the Court of Appeals. While the Commonwealth’s Attorneys have always considered having to respond to appeals to be a burden, it is a burden that is shared by most court appointed attorneys and public defenders. Moreover, the extra funding that the AG is seeking for his office could be directed to the Commonwealth’s Attorneys’ Offices the hire an extra Assistant Commonwealth’s Attorney to help cover the appeals.
End of Rant.
Elwin Charles “Preacher” Roe was a baseball player from Ash Flat, Arkansas. His major league career spanned 16 years in the mid-20th century, excepting a few years in the middle when he served is the armed forces during the Second World War and, though he was a five time All-Star pitcher, he is mainly remembered these days — if not by name, at least by the repetition of the quote — for a bit of homespun wisdom he offered to a sports reporter after being removed as starting pitcher in a game before the end of the second inning saying, “Some days you eat the bear, some days the bear eats you.” That’s true of the legal field as much as it is of baseball. And then there are the days when you eat the bear in the morning and the bear returns the favor in the afternoon. This past Tuesday was such a day.
As an appellate attorney, I rarely have need to appear in the trial courts. But, as a member of a law firm with an active trial practice, I sometimes am asked to appear when another member of the firm is not available — and thankfully, where this is due to conflicting appearance requirements, I am given the easier task as between the two. Tuesday, I was appearing in a civil case where the defendant was in default, so really all I had to do was ask the judge to enter a final order for our client and determine the amount of the judgment, including an award of attorneys fees permitted by statute. As the only case on the 9:30 docket, this went fairly quickly and then the judge and I chatted for a bit. I was out the door by 9:45, the bear having been fully dined upon.
In the afternoon, I had an argument before a writ panel of the Supreme Court of Virginia in an appeal from the Court of Appeals in a criminal matter. I had been brought into the case after the Court of Appeals determined that the issue raised had been waived in the trial court, although the question of waiver had not been raised until the appeal had been granted and the Attorney General had taken over the representation of the Commonwealth. My task was to convince the Court that the waiver had been “waived” because the Commonwealth had responded in trial court and the judge had ruled upon the motion, implicitly finding that there was good cause to not apply a requirement that the defendant provide notice to the Commonwealth before raising a constitutional challenge to a criminal charge. The Commonwealth chose not to respond to my brief (which is not a default, as you cannot default as the appellee).
Now, the “bear” in this case manifested himself in the form of Justice Kelsey — who correctly pointed out that 1) even if the waiver was not raised in the trial court, the judgment could be affirmed under a right result/wrong reason approach and the Commonwealth was not subject to the preservation requirement for opposition arguments (with the Justice adding that he recognized it was subject to the rule for cross-error). I dodged the bear by asserting that the right result/wrong reason doctrine requires that the trial court have an opportunity to rule on the right reason, which did not happen in this case. But, said the bear, 2) the Attorney General is not bound by the record created by the Commonwealth’s Attorney as they are independent constitutional officers (a rule I happen to disagree with, but that is hardly the point, as it is a rule possibly applicable in this case). I gamely tried to dodge the bear by asserting that while the AG was not bound by the record created in the trial court, the Commonwealth was bound by the judge’s implicit decision that good cause existed to consider the issue — “waiving the waiver.” The bear was having none of it, and as my time was expiring I pivoted to the “ends of justice” argument of my third assignment of error — saying that this issue (challenging a penal statute as unconstitutionally vague and overbroad) deserved review, waiver or not. Justice Mims, presiding perhaps for the final time before his impending retirement, took pity on my bear-mauled carcass by calling time.
Now technically, the bear hasn’t dined yet. I remain hopeful that my efforts at dodging the bear might yet result in a writ being granted. I should further say that Justice Kelsey was fully justified in giving me a proper mauling — in fact, my co-counsel had predicted the exact course the argument would take when he learned that Justice Kelsey was on the panel. Justices do have reputations for being keen on certain issues, and Justice Kelsey is keen on procedural rules that limit when an issue is ripe for appeal. After all, there is little point in granting an appeal where the result will be decided by a procedural rule barring a review on the merits. On more than one occasion, a procedural issue slips past the parties and the trial court, and if it could not be raised on appeal it would make for uneven justice — in many cases the appellate court can even raise the procedural issue sua sponte. But that does not make being the bear’s dinner any less pleasant 🙂
The last two weeks have seen the Court of Appeals release four published decisions – two by opinion and two by order – that perhaps give a hint of things to come as the Court enters into its new era of hearing criminal appeals of right. All four cases were criminal matter and decided “against” the appealing defendant . . . sort of.
Let’s begin with the two opinions, which were decidedly in favor of the Commonwealth. Lucas Edward Ritchie v. Commonwealth of Virginia deals with a juvenile adjudication of delinquency. Ritchie entered an Alford plea to a charge of forcible sodomy in the juvenile court. (Readers not familiar with the term Alford plea can get the full details at the link – suffice to say it is the equivalent of a guilty plea without an admission of guilt). As a juvenile, Ritchie would only be required to register as a sex offender if the court ordered him to do so, and in this case it did. Ritchie filed a motion asking that the court reconsider its ruling regarding registration and on the 21st day following the adjudication, the court entered an order that said Ritchie did not have to register “at this time” and that the court would take the motion “under advisement.” Ritchie failed to complete the terms of his probation and, accordingly, the juvenile court entered an order about 6 months later requiring the Ritchie register as a sex offender.
Students of civil procedure have already guessed that this case is going to be about Rule 1:1 and the finality of judgments. There is no question that the order entered 21-days after the adjudication order, which was a final order, was a valid modification of that order. But was it a new “final order”? Ritchie maintained that it was, and that juvenile court could not modify the order 6 months later to require him to register. Ritchie appealed to the circuit court, which would normally be an appeal de novo, but as Ritchie specifically challenged the judgment as being from a void order, the circuit court was first required to determine whether it had jurisdiction to consider the appeal.
The circuit court determined that the order that removed the requirement to register as a sex offender at “this time” and took the motion under advisement was not a final, appealable order because it left something for the juvenile court to do – namely consider the motion it had taken under advisement. The court then reviewed de novo the decision requiring Ritchie to register and found that he should be required to do so.
Ritchie appealed only the determination that the circuit court had jurisdiction to consider the appeal. The Court of Appeals affirms, noting that the juvenile court was within its discretion to retain jurisdiction over the case while it considered the motion to revise its judgment.
Rodney Massie v. Commonwealth of Virginia is, at first blush, a standard sufficiency of the evidence appeal. However, a standard sufficiency appeal rarely rates a published opinion. When the court decides to publish in such cases, it is usually because there is a new, or at least rarely raised, issue. Massie falls into this category because the issue with whether Massie could have been found guilty of rape and several related offenses where he did not engage in any sexual activity with the victim.
The facts establish that the victim was homeless and worked as a day laborer. Massie offered employment to the victim and supplied her with drugs. Although the victim performed the work Massie offered, he refused to pay her and also took property and money she had earned away from her. By means of drugs, depriving her of her property, and implied and overt threats, Massie effectively made the victim his captive. Massie then forced the victim to engage in sexual acts with another man, which led to the rape charge.
At trial, Massie moved to strike the evidence on the ground that he had not engaged in any sexual activity with the victim and, thus, could not be guilty of rape and the associated offenses as a matter of law. The circuit court overruled to motion to strike and submitted the case to the jury which convicted Massie on all counts.
The Court of Appeals affirmed the convictions, finding that as worded, the relevant statutes focus on the force or coercion of the victim to participate in the sexual activity, not whether the defendant is the individual participating in the acts with the victim. This construction is entirely consistent with the intent of the law, which is to prohibit the use of force, threat, or intimidation to compel a person to engage in sexual activity against their will. If the statute was limited only to circumstances where the defendant engaged in the actions, that would create a significant gap in the law as this case amply demonstrates.
Now to the published orders. Jerrod Max Palmer v. Commonwealth of Virginia is an appeal of a denial of bond pending trial that was granted back in 2021, briefed and argued. But, by the time of argument, Palmer had already been indicted and accepted a plea agreement, rendering the question of whether he was improperly denied bond moot. The appellate courts will not address moot issues (except in the rare case of an issue capable of evading review – which this is not), so the appeal is dismissed.
Eugene N. Johnson v. Commonwealth of Virginia is a simple procedural matter involving the distinction between a conviction under a local ordinance and a state statute. It is not often that a locality will seek to prosecute a defendant under a local ordinance where there is an equivalent state penal statute. Some local ordinances do not have state statute equivalents, as the offense is merely “authorized” by statute, but the decision to actual make the offense the subject of an ordinance is up to the locality. Many jurisdictions, however, adopt ordinances that are “authorized” by virtue of there being a state penal statute on the same subject matter. There are some reasons why a locality would decide to prosecute under its ordinance rather than the state code – and when it does such cases should be prosecuted by the city or country attorney rather than the Commonwealth’s Attorney (or by the CA under an agreement to represent the locality, usually in return for some supplemental funding of salaries for deputy CAs). When this happens, there can be some confusion as to which polity is the prosecuting authority, and thus, who should respond to an appeal – the Attorney General cannot represent a locality in an appeal that is from a conviction under a local ordinance.
This is what happened in Johnson, where the City Attorney of Norfolk prosecuted Johnson on several traffic offenses. Some of the court documents recited the relevant Code sections and others the city ordinances. When Johnson appealed, he styled the notice of appeal as “Commonwealth of Virginia v. Eugene N. Johnson,” but named the City Attorney as the appellee in the certificate. The City filed a motion to substituted as the named appellee in the style of the case, and the Court of Appeals grants the motion, restyling the appeal as Johnson v. City of Norfolk.
I titled this post with the quote from Jean-Baptiste Alphonse Karr that is usually translated into English as “the more things change, the more they remain the same,” but which is perhaps more properly understood as “a thing may change superficially; but, underneath, its essence is always the same.” The opinions and orders discussed herein show that the Court of Appeals is not likely to approach “appeals of right” in criminal cases any differently than it did discretionary appeals in such cases. Nor should it. I suspect that issues of little merit (or no merit) will be decided by orders (published or otherwise) and only issues of moment – that is ones that are novel, allow for clarification or refinement of existing rules, or that simply serve as a reminder of the law where it appears to have faded from memory will be published.