The Court of Appeals issued one published opinion today and, if it lacks the automatic snooze factor of last week’s administrative law appeal, it was no more interesting given that its subject matter, “Speedy Trial in a Time of COVID,” is one that is not likely to generate any surprises. Jovan Anthony Ali v. Commonwealth of Virginia generates a surprise only by its length, clocking in at just over 26 pages.
Ali was convicted of unlawful wounding in violation of Code § 18.2-51 as a lesser included offense of malicious wounding. The incident occurred in July 2019, Ali was arrested about two months later and Ali was indicted on March 16, 2020, which coincidentally was the date the Supreme Court of Virginia issued its first judicial emergency order in response to the COVID-19 pandemic, restricting trials and non-emergency proceedings as a result. As the pandemic continued, all jury trials were suspended. The opinion does not state whether Ali or the Commonwealth requested a jury trial, but in any case, Ali was not tried until November 2020 — well beyond the statutory time for a speedy trial, as Ali was held in custody by the Commonwealth for the entire time.
Ali made repeated objections based on both statutory speedy trial and constitutional speedy trial, the latter being a due process matter based on the 6th Amendment. The circuit court was having none of it, citing the emergency orders of the Supreme Court as a basis for denying the statutory claim, and further finding that even if there were no orders, the pandemic would have justified the delay, and further finding no prejudice to Ali from the delay that would raise due process concerns. Ali was sentenced to five years, with the circuit court imposing that sentence, of which Ali had served just over a year. [Side note: I am willing to hazard a guess that had Ali agreed to a plea to the reduced charge, which I suspect the Commonwealth offered or was at least open to considering, the court would have sentenced him to less time and suspended most of it — with good time credit, he’d likely have been out well before his eventual trial date.]
Ali appealed only the speedy trial issues, apparently having no truck with his actual conviction, and today the Court of Appeals affirms. With respect to the statutory claim, the Court notes that Ali does not challenge the authority of the Supreme Court to issue the emergency orders, thus the Court need not address the circuit court’s assertion that the pandemic in and of itself would have justified the failure to comply with the statute. Finding, as it has already in other circumstances, that the suspension of normal trial process was justified by the judicial emergency of a global pandemic, the Court concludes that the circuit court correctly denied Ali’s statutory claim. The Court does this in just six pages, including the recitation of the facts and summary of the parties arguments.
The other 19 pages are devoted to Ali’s due process claim. While I commend Chief Judge Graff, writing for herself and Judges Ortiz and Causey, for her thoroughness and diligence in addressing as vital an issue as the right to a speedy trial, I don’t believe that a summary of that analysis would be of particular benefit here. Suffice to say that Ali did not suffer any prejudice from the 21-month period between indictment and trial that would warrant setting aside the judgment for due process concerns.
There were 10 unpublished opinions this week (addressing 11 appeals). The only one of particular interest is Karen Clevonne Frazier v. Commonwealth of Virginia, an Anders opinion granting leave for appointed counsel to withdraw. Frazier was convicted on a guilty plea, and the circuit court sentenced her to a lawful sentence. As any good practitioner should know, a guilty plea is a waiver of most issues that can be raised on appeal. There are two issues, however, that can be raised — the jurisdiction of the court to try the defendant and the lawfulness of the sentence imposed.
Lack of jurisdiction, as we all know, can be raised at any time. However, it is also very unlikely that a criminal case would reach the circuit court without that court having jurisdiction — personal or subject matter — over the defendant and the offense charged. I am sure a law professor could come up with a scenario where one might credibly challenge jurisdiction — perhaps based on some defect in the indictment. However, in the real world, it’s just not very likely going to be an issue that needs to be addressed.
Likewise, to be “unlawful” a sentence must either exceed that which is allowed by statute or constitute an abuse of the circuit court’s discretion. When that former occurs, usually as the result of a typographical error in the sentencing order, for example a substitution “years” for “months,” or on rare occasions where the court imposes a sentence based on the charge of the indictment when the defendant pleads to a lesser offense. The latter is, well, just not a viable issue for appeal if the sentence is lawful . . . or is it “viable?” You see, just because one knows that Court consistently rejects abuse of discretion arguments challenging otherwise lawful sentences does not, in my view, make the argument wholly frivolous. And therein lies the rub, as an Anders brief is for wholly frivolous appeals.
Thus, when an appointed attorney is directed to file an appeal following a guilty plea, the choice is between filing a nearly frivolous appeal asserting that the sentence was, if not unlawful, certainly unduly harsh, or filing an Anders brief seeking to withdraw as counsel. An Anders brief requires the attorney to include all possible grounds for appeal and also demonstrate that they are without merit. Thus, appointed counsel are often faced with the dilemma of whether they have an ethical duty to file an Anders brief in such cases, where the latter is objectively more difficulty to file — making both the argument and the rebuttal as opposed to just the argument.
My view has always been that they are not ethically required to do so in the Court of Appeals. Rather, I think the attorney can file a standard appeal, waiving oral argument, and making clear in the the brief that the attorney recognizes the near futility of the appeal. Why? Several reasons, but I will cite just two:
First, appointed-clients are entitled to the best representation an attorney can provide, and seeking to withdraw at the first stage of the appellate process will likely damage the client’s probably already jaundiced-view of the court-appointed counsel. Even if you explain the futility of the appeal to the client, they will hear “I am not interest in making your case because I don’t get paid enough.” Clients who feel they have been dis’ed are clients who file bar complaints — and even if the complaint has no merit, it can still inconvenience the attorney.
Second, filing an Anders brief in the Court of Appeals does not relieve the attorney of two important duties — to consult with and advise the client of the effect of the order permitting counsel to withdraw and to file a notice of appeal and request for appointment of new counsel if the client directs the attorney preserve the right of appeal to the Supreme Court — these duties are non-waivable even when the attorney has been relieved as counsel by the Court.
Contrary to a widely-held misconception, a granted Anders does not eliminate the indigent defendant’s right to appointed counsel or to pursue the appeal to the next level, and even when given leave to withdraw, the attorney cannot simply “ghost” the client. There have even been instances of a newly appointed counsel finding some flaw in the trail proceeding resulting in a remand of the case to the Court of Appeals for a full briefing on the merits (albeit this was not in a guilty plea case, but one where the attorney simply wanted to be shed of a difficult client). Typically, the client will simply appeal the case himself, confirmed in his belief that appointed-counsel are worthless, but this fact does not eliminate the duty of the former counsel to properly close out the litigation.
So, what about filing an Anders petition in the Supreme Court? Well, I can certainly see why an attorney who didn’t file Anders in the Court of Appeals might reasonably say, “Appealing the judgment of the Court of Appeals would be wholly frivolous, so now I must file and Anders.” And, technically, the attorney would be correct. Technically. But, I am equally sure that the Supreme Court of Virginia will never take offense at an attorney filing a standard petition in such cases, provided that attorney acknowledges the near futility of the appeal. Certainly, the Court is not going to refer such attorney to the bar, so long as the appeal is otherwise procedurally correct. More to the point, being relieved as counsel by the Supreme Court is a pointless measure. Once the state appellate process is complete, the attorney has no duty to pursue further relief on behalf of the client, either by writ of certiorari to the US Supreme Court or by state or federal habeas.
The Court of Appeals released a single published opinion today, and its a real snoozer. Frequent readers of these missives will recall that my preferred bedtime reading when I have insomnia is anything to do with Administrative Law. Virginia Department of Corrections v. Richard Bishop should fit in nicely with my collection of sleep-inducing reads. Even the salacious nature of the underlying facts are so mundanely recounted that the mind tends to wander by page 2. Succinctly put, Bishop heard a rumor that Ms. B was in a relationship Mr. A, her supervisor (that is literally how the opinion identifies the parties). Anyway, VDOC regulations required that any improprieties of this type be reported, but Bishop found the rumor to be not credible, so he didn’t do so. Now, in an attempt to make this a bit more interesting for you dear reader, let me pause her to recount a story about Andy Griffith which seems apropos:
Griffith was a relatively unknown actor when he produced a comedy single called “What it was was Football.” The promoter of the record tried to get Robert D. Raiford, an announcer (as disc jockeys were called back then) for a popular Atlanta Station to include the record in his broadcast, but Raiford declined, saying that his audience was not interested in country humor. The record went on to be a number 1 hit. Years later, Raiford was an occasional supporting actor on Griffith’s TV show Matlock which was set in and filmed in Atlanta. One morning, the two men happened to be in the make-up chairs beside one another and Raiford mentioned that he had been offered the opportunity to play the record on his show, but had not done so. Griffith replied, “Someone else did, did they?”
As you can guess, someone else did report the rumor — two someones in fact. It also came out that Bishop had known about the rumor and had not reported it. Bishop was subsequently placed on pre-disciplinary leave for failing to report the alleged relationship. It was subsequently determined by the VDOC that the failure to report the possible violation was a fire-able offense and Bishop was fired. He filed a grievance to review the decision.
At the grievance hearing, Bishop asserted that he did not have knowledge of the alleged relationship, only that he knew what was “rumored” and accusing Ms. B of “sleeping her way to the top” was likely to be improper in itself. However, the hearing officer determined that Bishop was still required to file a report. Bishop appealed this decision to the circuit court.
Now when circuit courts conduct hearings in administrative appeals, they are sitting in appellate jurisdiction. This means that typically they shouldn’t redetermine the facts, but limit their consideration to whether the hearing officer’s decision is “contrary to law.” But the question is, “contrary to what law?”
In this case, the circuit court decided that it should reconsider Bishop’s argument that reporting a rumor that Ms. B was in a relationship with Mr. A to further her career prospects might be discriminatory in that it would create a hostile work environment under Title VII of the Civil Rights Act of 1964. As it so happens that there is a Fourth Circuit case that arguably might support that argument — though under much different circumstances. The court then went own to analyze VDOC’s Standards of Ethics and Conflict of Interest Operating Procedure, determining that Bishop’s failure to report the rumor did not violate the policy, and based its decision on that alone — not on the possible conflict of the policy with Title VII. The circuit court reversed the termination and order Bishop to be reinstated.
On appeal to the Court of Appeals, VDOC contended that the circuit court does not have the authority to reinterpret VDOC’s internal policies. The Court of Appeals begins its opinion by noting that Bishop did not assign cross-error to the circuit court’s failure to find that the possible conflict with Title VII was an alternate grounds for reversing the hearing officer. As Scooby Doo would say, “Rut Roh!”
“Rut Roh” is right. The “law’ that circuit court’s review in such cases is limited “to ascertaining compliance with constitutional provisions, statutes, regulations, and judicial decisions.” You will notice that “interpretation of internal policies” is not in that list. In short, the circuit court went outside its appellate jurisdiction in construing the VDOC’s policies differently from the hearing officer.
Two points need to be made here. First, the fact that the circuit court could not reinterpret policy does not mean that the hearing officer’s interpretation is not subject to review. Rather, Bishop had the choice to seek further administrative review within the DOC, but chose to go to the circuit court instead. Now you might be wondering why Bishop was “required to exhaust his administrative remedies,” and the answer is that the Code actually gives him that choice.
Second, while the Court of Appeals does not specifically say that the Title VII issue would have been a sufficient basis to set aside the termination, it does note that the circuit court was “sympathetic” to this view. However, because the issue was not raised by cross-error and “the record here is not sufficiently developed that a determination can be made that VDOC’s policy as applied here necessarily conflicts with Title VII,” the Court expresses no opinion on that issue.
Now, the headline promised something more exciting from the unpublished decisions today, at least by comparison to administrative law. There were 15 unpublished opinions released today (well, 13 really, as one opinion decided three appeals), and all were affirmances, including a Commonwealth’s appeal. Commonwealth’s appeals in the Court of Appeals are fairly rare, as they can only occur where a circuit court makes a ruling based on the denial of a constitutional due process right which prohibits a criminal prosecution.
Commonwealth of Virginia v. Christopher Francis Martinez is an appeal from the sustaining of a motion to suppress evidence. The incident involves a call for medical assistance by a ride share driver whose passenger was passed out in the back seat of his car. By the time police arrived, however, Martinez, the passenger, was conscious and responsive. Martinez had two driver’s licenses, one for Colorado and one for Virginia. He provided the first to the officer who had initially responded, who returned it. A second officer also arrived, but as this was a community caretaker situation, he went on to another call as only one officer is required in such cases according to local policy.
Then, two additional on the scene, and recognized Martinez from their “experience in ‘special investigations’ and believed that the situation ‘may have been narcotics related.’” They decided to question Martinez and had the ride share driver (who was losing out on fare opportunities, but that’s beside the point) move to a safer location then had Martinez exit the vehicle and move to under the awning of a nearby building to “get out of the rain.”
Upon being questioned “why he was not in Colorado,” Martinez provided the officers with his Virginia license. While one of the officers took this license to run a check for outstanding warrants, another officer asked to search Martinez’s pockets, testifying later that “guns and drugs go together” and he wanted to “keep everybody safe at that point.” However, the officer did not conduct a “pat-down,” but simply reached inside the pockets of Martinez’s jacket, and found marijuana and Xanax inside. The officer then asked Martinez if he “had anything else one him” and said “this is one of those moments where, if you be honest man, and work with us now . . . we obviously know who you are, let’s make some smart decisions now.” Martinez admitted that he had several “rocks” of cocaine in one of this socks. He was then handcuffed, and the cocaine was removed from the sock. Martinez was arrested and charged with various drug offenses.
Martinez moved to suppress the evidence seized from his person. At the suppression hearing, the Commonwealth argued that there had been “no police misconduct,” and the circuit court agreed, saying that the initial search was “consensual.” However, Martinez filed a motion to reconsider, asserting that when he was required to exit the vehicle and surrender his driver’s license, he had been seized and was not free to leave. The officers’ familiarity with Martinez was not, without more, a sufficient cause to detain him.
The circuit reviewed the body cam footage of the stop and concluded that under the totality of the circumstances Martinez had been seized and would not have felt free to leave, thus his consent to the search was not voluntary. The court accordingly applied the exclusionary rule and suppressed the evidence. The Commonwealth did not expressly argue that the exclusionary rule was not the appropriate remedy, although it did reassert that their had been no “misconduct.” Of course, without the evidence, the case was dead in the water.
The Commonwealth appealed the suppression of the evidence, asserting both that the encounter and search were consensual and that even if not, suppression of the evidence was not warranted. Addressing the first issue, the Court agrees with the circuit court that a person in Martinez’s position would not have felt that he was free to leave or to refuse to be searched.
The Commonwealth’s second issue was that even if the search were improper, “exclusion of the evidence was not the appropriate remedy.” Although the Court of Appeals notes that this issue was not expressly asserted in the circuit court, the Court nonetheless states that ” the exclusionary rule is necessary to deter such police misconduct in the future” so implicitly it finds that the Commonwealth’s assertion that there was no “misconduct” was incorrect. The question that comes to mind is whether the Commonwealth is, under the new Attorney General, going to press the idea that the exclusionary rule is not “appropriate” in all cases — for example where the officers make an “innocent mistake” or where there is “confusion over whether the consent was voluntary.” This is the position of at least two members of the United States Supreme Court, and as that Court now has a clear conservative majority, it may be that the Attorney General is looking to test the boundaries of exclusion of improperly obtained evidence.
- tloojs
- May 18, 2022
- 7 min read
The Court of Appeals released two published opinions, including an en banc opinion addressing the application of the COVID tolling orders. In addition, there was an unpublished opinion that is worth of a mention, so let’s start there.
Bradford T. Cellucci v. Commonwealth of Virginia is unusual in that it finds error in a trial court’s consideration of mitigating circumstances in imposing sentence. The opinion begins with the observation that “[a] trial court’s decision to modify a sentence after a horrific crime is a weighty matter,” and the crime here was indeed horrific — an attack with a claw hammer that left the victim paralyzed from his chest down. The circuit court sentenced Cellucci to the maximum sentence allowed, life imprisonment and a $100,000 fine. Cellucci appealed the circuit court’s denial of his motion to reconsider his sentence under Code § 19.2-303. Cellucci contended the circuit court abused its discretion in determining Cellucci failed to prove any circumstances in mitigation, despite evidence demonstrating Cellucci’s Autism Spectrum Disorder (ASD) diagnosis, lack of criminal history, and demonstrated ability to be rehabilitated. Further, he contended the circuit court erred by failing to address whether modifying Cellucci’s sentence was compatible with the public interest because the original sentence violates the United States Constitution’s Eighth Amendment and Due Process Clause.
Today, a majority of a panel of the Court of Appeals reverses and remands the case for a new sentencing. Judge Ortiz, joined by Judge Causey, finds that the circuit court abused its discretion in making the erroneous legal conclusion that Cellucci failed to prove any mitigating circumstances and in failing to consider Cellucci’s mitigating circumstances evidence. The principal view taken by the majority is that the circuit court erred by finding that the evidence presented by Cellucci did not establish mitigating circumstances, rather than finding that the evidence of mitigation did not warrant a reduction in the sentence.
Chief Judge Decker dissents, finding that the majority has misinterpreted the circuit court’s analysis of the evidence in an eight page order denying relief on the motion to reconsider. In her view, the court found that the primary focus of Cellucci’s mitigation argument was his ASD diagnosis, which the court found “had minimal probative value.” Judge Decker concludes that when viewed as a whole, the record fails to show that the circuit court disregarded the evidence in mitigation, but simply found that evidence was not sufficient to outweigh the need to impose the maximum punishment for a horrific crime.
I expect that the Commonwealth will seek a rehearing en banc or note an appeal to the Surpeme Court.
The en banc opinion address an issue that is likely pending in a number of other cases — the impact of the tolling provisions of the various orders issued by the Supreme Court of Virginia during the ongoing public health emergency caused by the COVID-19 Pandemic. In the original panel decision of Clifton Thomas Jacks v. Commonwealth of Virginia, a 2-1 majority found that Jacks could not benefit from the tolling order in seeking a delayed appeal from a judgment in the general district court to the circuit court, finding that his appeal was barred by the failure to preserve the issue of the tolling effect of the order by a contemporaneous objection. You can read my analysis of that opinion here. The case was of sufficient note to garner some attention from the Sage of Virginia, Steve Emmert, who called the decision “staggering,” a view shared by yours truly and numerous others, including Judge Huff, the dissenting member of the panel, who noted that it was not really possible for there to have been a contemporary objection because the circuit court entered the order sua sponte and waived endorsement in light of the COVID pandemic.
Today, a unanimous en banc undoes that staggering decision. Now, interestingly enough, that opinion does not say that Jacks (or rather his counsel) made a timely objection. Quite the reverse, it appears to accept that Jacks (or rather his attorney) never made the argument that his deadline to appeal to the circuit court was tolled by the Supreme Court’s Emergency order. That might lead you to believe that Jacks was destined to lose again.
But, no. The Court now adopts the view of the dissent in the panel in an opinion authored by Judge Huff. Judge Malveaux, who was on the panel with Sr. Judge Annunziatta (senior judges typically do not sit en banc), has either changed her view or decided to silently dissent. The opinion notes that the merits of Jacks assertion that the deadline was tolled “have never been the main point of contention in this appeal.” Rather, it’s that sticky issue of his counsel not having told the circuit court “but that deadline was tolled by the emergency order.”
The majority agrees that the sua sponte order dismissing the appeal from the general district court entered without endorsement deprived Jacks of the ability to make a contemporaneous objection. And what of the 21-day rule? The Commonwealth says Jacks (or rather his counsel) could have used that time to bring the issue to the circuit court’s attention. Well, it turns out the Supreme Court has already said, “No, that’s not required.” This seems fair in as much as the Supreme Court has said that where a party does have the opportunity to make a contemporaneous objection and fails to do so, it can’t save the day with a post-verdict motion (in most cases). Sauce for the goose . . .
“Wait! Wait!” says the Commonwealth, “Jacks’ attorney didn’t even raise the issue in his original brief.” True, says the Court, but after being kindly advised of it by the dissent, it was fully briefed for the en banc Court.
Finally the Commonwealth points to the lack of a transcript or statement of facts in the record. A transcript or statement of facts from a proceeding that never took place mind you, as the circuit court acted sua sponte. You can probably guess (well, as you already know the opinion reverses and remands, you don’t have to guess) how that argument went down with the Court.
Unlike the unpublished opinion that leads off this post, I do not expect the Commonwealth to seek further review.
Today’s other published opinion is Justin Thomas Meade v. Commonwealth of Virginia and it’s legally tame in comparison to the others reported above. The examining the car’s engine, Meade noticed that among several people loitering in the parking lot there was an individual armed with a handgun. Meade decided to retrieve his own weapon from the car. The individual, David Wills, then approached Meade and accused him of stealing. The opinion gives no indication that Meade and Wills knew each other or exactly what it was Wills though Meade had stolen.
Although Wills was holding his handgun, he assault Meade with his fists and was soon joined by others who knocked Meade to the ground, hitting and kicking him. During this altercation, a gun (it is not clear whose) went off and the crowd scattered. Meade stood and aimed his gun at Wills, who was fleeing, but Meade was immediate struck by a car. Regaining his feet, Meade pointed his gun at the car that struck him, while Wills took cover behind a parked car and took aim at Meade. Meade fired at Wills, who ducked and then fled to a motel room. Meade fired a second time through the motel room door.
It was this last shot that led to Meade being charged with maliciously shooting into an occupied building. However, it was not the end of the incident, as Wills exited the motel room and shot at Meade, who was attempting to drive away. Wills fired three shots at least one of which struck the car before Meade left the parking lot. Neither Meade, not his passenger who had remained in the car, reported the incident to police and were not cooperative in the subsequent investigation.
Now, dear reader, I am sure that you have as many questions as do I about the recitation of facts in this opinion. What were the people loitering in the motel parking lot doing exactly? Did Meade and Wills have a prior association? What did Wills think Meade had stolen? And why did Meade not want to involve the police when he was clearly more sinned against than sinning?
Well, first lets provide a little more context of the appeal. Meade was also charged with attempted murder, attempted malicious wounding, and related firearm charges, but was acquitted of these. The court emphasized that his was not because it found that Meade was defending himself (though why it found the evidence otherwise lacking is unclear). So on appeal, Meade is left with the single conviction and his assertion of self defense that the circuit court expressly rejected even as to those charges to which it seems to apply more clearly.
Today the Court of Appeals affirms, finding that as Wills had retreated into the motel room (albeit only briefly), Meade was no longer in immediate danger and was not entitled to fire through the closed motel room door. Nor was this verdict inconsistent with his acquittal on the more serious charges because the circuit court expressly stated that it was not doing so based on the claim of self-defense.
Now, as to those nagging questions. Well, I suppose that one cannot really know what was going on in the parking lot . . .but as that parking lot happens to be located in the fair Roanoke Valley from whence I am composing this missive, let me provide some additional context. First, the location of the motel was in an area directly off Interstate 581, the spur that runs from I-81 through downtown Roanoke. I say “was” because it is no longer in business, having been shut down after one too many arrests for various crimes involving drugs and prostitution. (New owners have refurbished the exterior — and I presume the interior — and rebranded, but the area is still not particularly savory). Second, Mr. Wills has a fairly lengthy arrest record with multiple crimes of violence and drug distribution. So does Mr. Meade. Surprised? I didn’t think so.