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

Today the Court of Appeals hands down five unpublished opinions (a separate entry will follow on the single published opinion).  I have previously singled out two unpubs for analysis since starting this blog (or Blawg, as Steve Emmert calls legal related blogs in his recent essay on his on blawg) because I thought there were some valuable lessons to be gleaned from them.  There are no such lessons from the five unpublished opinions today which, to the misfortune of the appellants, fall into the category of what some in the appellate community refer to as BTDT appeals, which is short for “Been there, done that[, got that T-shirt].”  Each of these appeals, two criminal and three domestic relations, all deal with standard matters dealt with in standard ways and with standard issues on appeal with the expected standard results.

What is somewhat unusual about these five cases, however, is that they all involve to some degree the care (or more correctly, the lack of care) of a parent for a very young child or children.  Thus, while I will simply refer the reader to the opinions for a summary of their facts and the applicable law applied by the Court of Appeals to properly affirm the trial courts’ decisions, I will take a moment to discuss the tragedy of dealing with cases where the victims are truly innocent.

The cases are Jesse Christopher Blackmon, Jr. v. Commonwealth, in which the defendant was found guilty of failing to seek necessary treatment for his infant son, Charles Kenny Huff, Jr. v. City of Fredericksburg Department of Social Service and Suzanne Shelton v. Norfolk Department of Human Services, both of which are termination of parental rights cases where the parent in question could not, despite substantial assistance offered from the state, stay drug-free and out of the custody of the penal system in order to care for their children, Adrianna Haley Sledd v. Roger Lee Bowman and Tina Underwood Bowman, in which a mother equally unable to remain sober and out of custody sought to contest the adoption of her child by the child’s paternal grandparents who had raised the child nearly from birth, and the most egregious case, Journy Lee Snead v. Commonwealth, who was convicted of murdering his own grandfather, allegedly at the behest of his grandmother, in front of his three-year-old daughter who was called as a witness at the trial, further extending her trauma.

One thing that all five cases have in common is that to some degree an effort is made to protect the identity of the child or children involved.  This effort, however, is in conflict with the Court’s duty to provide the defendants, and the citizenry, with an open and public record of the proceedings to assure the continued confidence in the judicial process. Thus, the Court notes in several of the cases that, despite the record being sealed in the circuit court, it is necessary for the appellate court to recite those elements of the record, including factual findings concern the children which, in the age of the Internet will make the determination of their identity a matter of child’s play, if you will excuse the rather poor choice of words.  While the courts will “unseal only those specific facts, finding them relevant to the decision in this case,” Levick v. MacDougall, 294 Va. 283, 288 n.1 (2017), this can rarely be done in a way that will protect the identity of the child.

Case in point, in Snead the defendant and his grandmother had originally claimed that they had been out shopping and returned to find the victim bludgeoned to death, apparently at the hands of an unknown intruder.  This pretense was maintained long enough for an obituary with the great-grandchild’s name included in the list of survivors to be published and the child, along with the “loving” widow and grandson to attend the funeral.

This, say the watchdogs of public integrity, is the price we pay to live in an open and free society.  And upon this lofty pronouncement I call bovine excrement.  There is no real justification to my mind that prevents these opinions from themselves being issues under seal.  As indicated at the outset, these were not appeals that raised issues of great portent.* The need of the public to know more than the result of the appeals was no greater than was its need to know the details of the trial records.  The standard practice should be that the record — trial and appeal — of any matter involving a child as victim, witness or defendant is sealed from the outset and remains so absent a showing of compelling need on the part of the Commonwealth or the public.

*Concededly, one appeal did touch upon the impact of the COVID-19 Pandemic on court proceedings; but, as it turned out, this argument was an afterthought being raised for the first time on appeal, so there really was no “thing of importance” for future cases.

Most who know me well, know that I spend as little time as possible in the trial courts — in fact virtually none.  I managed to keep that record intact on Monday.  I was asked to consult on a personal injury case that had moved from the general district court to the circuit court but was procedurally probably not ripe for an appeal.  I prepared a motion to remand the case which was to have been argued at 10AM in the Roanoke City Circuit Court.  The defendant made an offer of settlement on Sunday which the plaintiff accepted on Monday around 9:45.  The matter was concluded in the hallway outside the courtroom.

Anthony Andre’s Mackey v. Commonwealth of Virginia, an unpublished opinion of the Court of Appeals released on January 26, 2021 deserves a brief mention in this space because it is a classic example of a failure to take not of what is a final order can result in the appellate court being unable to reach the merits of the case.  In this instance, the issue is what constitutes the final order in a criminal trial — the sentencing order or a subsequent order entered addressing a motion for reconsideration that was pending at the time the sentencing order was entered.

Experienced attorneys have already guessed that the answer depends on the wording of the sentencing order, or more specifically the absence of wording in that order.  The absent words would have indicated that the order was suspended or would not become final until the motion for reconsideration had been dealt with.  In the absence of those words, the order was final on its face.

Less experienced, and a few more experienced hands, will now have jumped to the conclusion that this is Rule 1:1 problem, assuming that the circuit court waited to act on the motion for reconsideration until after the 21st day following judgment and that the appeal related to some ruling thereon which was void for want of jurisdiction. This is half right.  The judge did enter the order denying the motion for reconsideration outside the 21 days, but the appeal did not relate to that ruling, or at least if it did in any part, that was not the reason the appeal could not be addressed on the merits.

Instead, Mackey’s counsel, assuming that the void order on the reconsideration was the final order, timed his filing of the transcript on that date, not the date of the order.  Rule 5A:8.  He actually got the transcript filed early by his reckoning, but alas it was not timely when the proper final order date was more than a month prior.  But wait, isn’t there a provision for having the Court of Appeals accept untimely transcripts “for good cause shown” and aren’t such motions typically granted?  Yes, there is, and yes, they are and probably would be in this case as the transcripts were less than two weeks late and clearly everyone in the trial court thought the matter was still properly before the court at the time the reconsideration was ruled on.  The problem is, of course, that Mackey’s counsel did not file such motion.

But wait!  Isn’t Mackey still entitled to a delayed appeal where the fault lay with his counsel?  Yes, and the Court of Appeals said as much in a parting footnote.  So why not just give Mackey his appeal now?  Because that’s not the way things are done — the Courts do not reward errant counsel, no matter how reasonable that error might seem (and this, IMHO, was not that reasonable — the rules on finality in criminal cases are well established, hence the Court of Appeals’ decision not to publish this opinion).  If Mackey’s counsel knows which side of the bread the butter goes on, he has already contacted a reliable colleague to apply for the delayed appeal and sought the advice of an attorney experienced in Professional Responsibility matters.

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