At this season of the year with the joy of religious celebrations and festivities for the coming of the New Year, it is unfortunate — but also perhaps necessary — that we will inevitably be reminded of the harshness of the world. Whether it is the tragedy of the recent natural disaster of unseasonable tornados, the need to provide for the poor who will not have a holiday meal, or the continuing pandemic and the political rancor that it has engendered, we are at once reminded that we are fortunate not to have such troubles at our own doorstep, but also that those troubles are often much closer to home than we would like.
The three published decisions of the Court of Appeals today all regrettably fall into the category of horrors which the legal profession and the courts must deal with. Two are criminal cases which detail cruelty to innocents, a child in one case, canine companions in the other. The third deals with a far more sensitive topic which, in its own way is perhaps the most horrifying of all, as it requires the Court to decide, quite literally, the fate of a potential human life.
On any other day, the case of Chelsey Danielle Ingram v. Commonwealth of Virginia would likely be the most upsetting and controversial. Ingram was found guilty of thirteen counts of animal cruelty. The issues on appeal were whether the circuit court erred in not suppressing the evidence of a warrantless search and whether the evidence was sufficient to sustain the convictions.
The 4th amendment issue was fairly straightforward as the law enforcement officers unquestionably entered on to the curtilage of the property without a warrant and there found considerable evidence that there were dead, dying and malnourished dogs on the property. The Court of Appeals, however, agreed with the trial court that the officers had not entered the property with the intent to gather evidence of a crime. Rather, they had responded to a “dogs on the loose” dispatch and, having found one dog dead in the roadway and other loose, had entered the property in an effort to find the owner. Their actions on the property did not amount to a search before they were able to see clear evidence of the dogs being in distress. Additionally, several of the dogs were in a wooded area some distance from the home and thus this evidence was subject to admission under the open fields doctrine.
The sufficiency issue was based on the novel argument that the condition of the dogs — dead, malnourished, and generally uncared for — was merely a reflection of their state “at one point in time” and, thus, failed to establish any acts of neglectful or deliberate mistreatment. Apart of evidence of the physical condition of the home — which is depicted in color photographs included in the opinion — the Court of Appeals points out the obvious flaw in Ingram’s “point in time” argument — any rational trier of fact would readily conclude that the dogs did not come to be in their deplorable condition suddenly, but that this was the result of an extended period of neglect. While it might be possible to hypothesize that Ingram had rescued the dogs shortly before they were discovered by law enforcement, there was certainly no evidence that this was the case, and as the courts are wont to remind us, a hypothesis of innocence must flow from the evidence and not the fertile imagination of the defendant or her counsel.
James Eberhardt v. Commonwealth of Virginia also deals with cruelty, but of a kind more savage as it involves the deliberate mistreatment of a child by a parent. While there are a number of statutes that can be used to bring charges in such cases, this case was brought under Code § 40.1-103(A), which is the child labor prohibition statute and its references to mistreatment and torture of children originally intended to address the mistreatment of apprentices and other child workers. More recently, however, this statute has been used to address mistreatment of children by caregivers where there is particular cruelty. Recent cases have included allegations of children being caged or forced to endure harsh environmental conditions as punishments for misbehavior or, worse, as “treatment” for developmental disorders.
Eberhardt apparently learned from his own experiences in youth the biblical maxim of “spare the rod, spoil the child,” explaining his use of corporal punishment on his 9-year-old daughter that he had as a child been beat[en] with switches and belts.” Proverbs 13:24, which Eberhardt incorrectly ascribed to Jesus, has been too often used as a basis for justifying corporal punishment. The literal meaning of the proverb, however, was never meant to do so — but was corrupted by the simplistic translation which appears in no authoritative version of the Bible. A literal translation of the original Hebrew would more properly read, “He who spares his son from judgment hates him, but he that loves his son instructs him earnestly.” The translation of “rod” as an instrument of punishment was a medieval concept, where as in late pre-Christian times the rod was a symbol of authority.
On appeal, Eberhardt contended that the punishment he administered did not rise to the level required by the statute, which requires proof that the child was “tortured, tormented, mutated, beaten or cruelly treated.” Eberhardt admitted to using a dog leash to repeatedly strike the child on her buttocks, asserting that he used the “webbed” cord in the middle, not the ends with metal buckles, because he “didn’t want to hurt her.” However, there was additional evidence of significant bruising and prior injuries on the child’s arms, legs and back as well. The Court concludes that this evidence far exceeds the “bounds of moderation and reason” that the common law permits when considering the parent’s right to discipline a child.
There are two additional points about this opinion that are worthy of note. The first is that the injury that the school nurse and resource offer first discovered to instigate the investigation was not cause by Eberhardt, but by the child’s mother, who had struck her arm with her fist three time and caused a significant bruising of which the child complained. The other is the transgression which engendered the beating and whipping — the child’s teacher had reported that girl talked too much in class.
The last of the published opinions today is the most disturbing, not because it involves a greater level of pain and injury, but because of the clinical and nearly emotion-free discussion of Shelleyan topic — the treatment of a human zygote as property in an equitable distribution following a divorce. I will respectfully decline to use the term “pre-embryo” that is used in the opinion. This, I should explain, is not from any particular religious, moral or philosophical concern, but merely the preference to use the correct scientific term from the stage of development. If you are not familiar with the precise meaning of these words, a simple explanation is that a zygote is created by the merging of the sperm and the ovum and this term applies to the development of the organism until the cells begin to differentiate into identifiable and distinct critical internal body structures — an embryo — and thence to a point of segmentation of external body parts — a fetus. In human reproduction, these three stages are defined as from conception to 2 weeks, 3 weeks to 11 weeks, and after 11 weeks.
The preceding paragraph was intended not so much as a lesson in biology as the demonstrate what is troubling about the Court’s opinion in Michael Herbert Jessee v. Michelle Evora Jessee. It is clear that for the trial court, the counsel for the parties at trial and on appeal, the Court of Appeals, and even the parties themselves in a very great degree, the discussion of determining the “ownership” and monetary value of a fertilized human ovum is just so much a workaday matter as deciding the possession of a collection Barry Manilow albums. That comparison is, admittedly, harsh, and I would like to believe that to the extent the various actors in this latter-day morality play had taken a sang-froid approach is as much to insulate them from the horrific nature of what is being contemplated as it is to a lack of emotional depth. Indeed, the two appellate counsel are both highly qualified attorneys with considerable experience of dealing with both the mundane and mortifying extremes of the justice system and I feel confident that, at least on their part, this was the case. Still, one cannot help but feel that this is a subject matter that really should not be one for a legalistic determination.
The facts are distressingly familiar in the pattern, if not in the specific object of the litigation. The Jessees married and attempted to bring a child into “the world in the usual way” as Harry Chapin put it, but after six months (generally a far too brief period for most fertility doctors to consider extraordinary means, but there may have been extenuating circumstances) turned to modern science. Eventually two viable zygotes were created, and one was implanted into the wife while the other was frozen. The wife miscarried the pregnancy, which was devastating to her and ultimately to the marriage.
In his complaint for the divorce, the husband specifically requested that he be awarded the remaining zygote and stated that it was intention to destroy it. He gave several reasons for this, including his desire not to be financial responsible for a child and also the “pain” of knowing that he potentially had a biological offspring. In its opinion today, the Court of Appeals notes that the first concern, while possibly a moral one, is not a legal one because there is an express statutory provision permitting a parent to disclaim (or rather, not accept positively) financial responsibility for a child conceived by artificial means with a pre-separation zygote by the other spouse. The fact that such a statute exists shows that this is an issue that is hardly novel — but that fact is also in some ways horrifying to me.
In any event, the wife indicated that she wanted possession of the zygote and stated her intent to seek to be impregnated and to bring the child to term. Her reasons were that, given her age, 43, she was not likely to be able to conceive a healthy child. As an aside, the myth of decreased fertility and increased risk of birth defects after forty is just that — a myth. Until perimenopause, the differences between a 15, 25, 35, 45 and even 55-year-old woman being able to conceive and have a healthy child are measured in fractions of percentages.
Again, I have verged into the clinical, perhaps because the difficulty of the underlying subject matter of this case simply requires avoiding the uncomfortable truth — we are talking about a human life, not a commodity. Granted, it is not yet a “person” under the law, but a zygote, whatever your spiritual beliefs may be — is not inert matter, nor is it is divisible — and it most certainly should not be given a monetary value.
So naturally, that is precisely what the husband insisted on when the circuit court awarded ownership of the zygote to the wife — he first wanted the court to explain its method for determining how to award possession and, presuming that this method was valid, to determine what his monetary compensation from the balance of the equitable estate should be. The circuit court gave a somewhat vague response to the first question — stating that it had weighed the equities. To the latter, it simply declined to assign a monetary value to Zygote, stating that it had no market value and no practical replacement value.
The Court of Appeals deals with this as a case of first impression, noting that while there is case law in other jurisdictions, Virginia has not had to consider the question of ownership of a zygote in the context of a divorce (it has occurred in the context of an estate), so there is no specific guidance on the factors to be considered or to the determination of the monetary offset (if any) to be made when the “property” is awarded to one spouse only.
The Court concludes that it cannot address the question of whether the zygote is “property” because the parties and the trial court treated it as such and, thus, it is the law of the case. I disagree that the Court could not have addressed this issue — I do not believe that the law of the case doctrine can bar a court from considering the fundamental nature of a thing. If the parties had agreed that a child was property with a monetary value or that a dog was to be treated as a child for purposes of determining child support, and the trial court had somehow allowed this, I do not believe that the Court of Appeals would have accepted this as binding. While I concede that the intertwined moral, ethical, religious and implications of this question are indeed complex — and unquestionably would have been better determined by the elected branches — I will simply take the position of President Truman when others complained that such decisions — such as dropping the atomic bomb — were too difficult. “The Buck Stops Here.”
The Court examines three approaches used in other jurisdictions to analyze the awarding of a “preserved” zygote — contemporaneous mutual consent, contractual, and balancing. The first of these in effect awards the “property” to both parties and the zygote(s) remain “preserved” until there is mutual consent to their use or destruction. The second applies only if there is a pre-existing agreement. The third, which I would argue the trial court applied here without specifically reciting its elements — weighs the parties’ respective interests.
Noting that the first approach is “disfavored” and finding that the Jessees did not have a contractual agreement, the Court concludes that the balancing of interest method should have been used in this case — and the Court clearly disagrees with me that this is what the circuit court did — or at least did not do so with clarity. So, the issue of ownership of the zygote will be remanded for reconsideration of specific factors set out on the opinion — and because it will be remanded, the Court declines to address the issue of whether the zygote has monetary value.
Anyone who reads this blog with any regularity knows that the one topic quicker to put your humble correspondent off his feed than any other is Administrative Law. It’s just not his cup of tea and never has been. So naturally when I saw that the appellant in today’s one published opinion from the Court of Appeals of Virginia was Virginia Manufacturers Association, Et[] Al., I was prepared for a big ol’ yawn fest. The VMA was suing, let’s see . . .Ralph S. Northam, Governor of Virginia, Et[] Al.? Now, typically, in Administrative Law cases the government entity is some board or agency, not the Governor. Also, the “Et[] Al.” in each case piqued my interest, especially as it turned out to be “et als.” (We’ll address the square brackets and the added “s” at the end of the post.)
In addition to the VMA, the appellants included Jon Tigges, Zion Springs, LLC, Grace Church of Fredericksburg, Josh Tigges, Dave Larock, Anne Waynette Anderson, Sponsor Hounds, LLC, River Rock Entertainment, Inc., Linda Park, Fujiya House, Inc., Heidi Bundy (Individually, and on Behalf of “A Little Bit H[i]ppy”), Jeffrey Frederick and Brew Republic Bierworks. There were fewer appellees beside the Governor, but they made up for it in the length of their titles: M. Norman Oliver, State Health Commissioner, C. Ray Davenport, State Commissioner of Labor and Industry, and Virginia Safety and Health Codes Board, C/O Charles L. Stiff, Chair.
[N.B. The opinion lists as one of the appellants, “Heidi Bundy (Individually, and on Behalf of ‘A Little Bit Happy’)” – however, Ms. Bundy is a Roanoke merchant, and I happen to know that the name of her establishment is “A Little Bit Hippy” – a reference to the sixties fashion styles purveyed therein, not the size of the patrons. I do not know where the error in transcribing the name occurred or at whose hands.]
The appeal involves the dismissal of the appellant’s suit by the Circuit Court of the City of Richmond challenge two of the Governor’s COIVD-19 Executive Orders. Specifically, EO 63, which required patrons to wear face coverings inside buildings; EO 67, which placed Virginia in “Phase Three” of its reopening plan. The suit also challenged the Virginia Safety and Health Codes Board’s Emergency Temporary Standard (“ETS”), which provided certain workplace requirements designed to prevent the spread of disease to and among employees and employers.
There were four claims asserted in the suit: Count I alleged that the EOs and OPHEs violated the Virginia Administrative Process Act (“VAPA”); Count II requested a declaratory order setting aside the ETS; Count III alleged that the EOs, OPHEs, and the ETS imposed restrictions that violated the Virginia Religious Freedom Restoration Act (“VRFRA”); and Count IV alleged that these restrictions violated the separation of powers provisions of the Virginia Constitution and impermissibly infringed on rights of assembly and association and the free exercise of religion. The suit was filed over a year ago in September of 2020.
The circuit court found that the appellants had alleged a sufficiently specific harm to give them standing to sue, but dismissed their complaint finding that 1) the VAPA did not apply the Executive Orders, 2) any claim regarding the ETS was moot because it had already expired, 3) the appellants had not alleged a “substantial burden” on free exercise as required by the VRFRA, and 4) because any curtailment of appellants’ freedom of assembly had a “real or substantial relation” to the COVID-19 public health crisis and did not rise to the level of a “plain, palpable invasion of rights secured by the fundamental law,” quoting Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905).
From these four rulings, the appellants managed to find eight assignments of error. Frequent visitors to this space are familiar with Koehler’s Theorem of Assignment of Error Density, which is that the merit of appeal declines proportionally to the rate on increase in assignments of error asserted therein.
The Court of Appeals makes short work of three of the eight assignments of error, finding that it lacks jurisdiction (at least until January 1, 2022) to review the dismissal of the claim of violations of separation of powers, which “are enforceable, if at all, as common law actions,” and, thus, fall under the jurisdiction of the Supreme Court of Virginia. These issues will be transferred to the Supreme Court where the appellants will have to seek a writ of error by petition.
The remaining five assignments of error get a longer treatment, taking up eleven of the opinion nineteen pages, but I shall not belabor the result — the appellants lose on every argument. The reasons are straightforward and parallel the circuit court’s judgment. The very nature of executive orders issued under an emergency declaration makes their being subject to the APA almost laughable. Considering processes that adherence to the APA would require, it’s a fair bet that most EOs involving emergencies — such as hurricanes, winter storms, and civil unrest — would be past long before the first notice of publication was out. Granted an ongoing pandemic might allow for a more deliberative process, but the law authorizing the declaration of a state of emergency simply does not require that to be done.
Similarly, when the government is no longer enforcing an administrative regulation, whether an emergency one or not, any challenge to it prior enforcement which seeks only its discontinuation is the very definition of mootness. It so happens that the ETS was subsequently followed by the adoption of permanent standards that were substantially the same as the emergency standards, and the appellants argued that the Court could thus offer its opinion on the validity of the former as a test of the enforceability of the latter. The Court correctly noted that this argument was not asserted in the trial court and could not be raised for the first time on appeal. In any case, the result would have been an advisory opinion, which the appellate courts of Virginia are not empowered to give.
Mootness was also at issue with respect to the challenges to the Governor’s actions under the VRFRA because neither EO was any longer in effect at the time of the appeal. The appellants make a play for getting a review arguing that the harm is capable of repetition while evading review, but the Court of Appeals is having none of that, finding that any future EOs that might impermissibly burden religious freedom would not likely be sufficiently similar to those that had expired and, thus, any opinion of the validity of such future EOs would be an advisory opinion, which, supra, the appellate courts do not give.
Now for those of you who read (or skipped) to the end, what’s all the who-hah with the square brackets and the add “s” on the “et al.” The square brackets removed unnecessary periods following the “et” in each party name on the Court’s website. The “et” in “et al.” is not an abbreviation, it’s simple that Latin for “and” with the “al.” meaning “others” as most first year law students know even if they did study Latin in grammar school as young boys (mostly) did from the Renaissance until the mid-twentieth century. Hence, when you have more than one party on a side of case and you don’t want to list more than the first, you simply tack on an “et al.” and the problem is solved. Except, if “al,” means “others” is it correct to use it where there are just two parties? Curiously, the answer is both yes and no. Therein lies a tale that is too long here to recount, but can be summarized as follows:
The letters “al” begin every form of the Latin noun alius — singular and plural nominative, genitive, dative, accusative, ablative and vocative — so “al.” could, in fact, stand for any of these. However, in the context of a series of names in a title, which is essential what a case name is, you would use the nominative case, alius, alia, aliud, aliī, aliae, alia, respectively the masculine, feminine and neuter forms of the nominative singular and plural of alius. So, is et al. short for “and another” or “and others”? As the yes and no answer suggests, it stands for both now. However, in the past, it stood only for “and others,” and the rule was that the case name (or any other nominative list) could be shortened to the first plus “et al.” only if there where at least three individuals. If there were only two, then you didn’t get to emendate by using the abbreviation.
However, as this antiquated rule was ignored or forgotten, “et al.” was increasingly used to simply indicate that there were one or more additional parties. Except, then someone pointed out that this was inaccurate, or at least lacked clarity. However, this someone, not knowing about the former rule or perhaps not wanting to alienate those who had become used to shorter case names, suggested that “et als.” should be used when there were more than two parties. Adding the “s” to pluralize a noun was, of course, proper English, it was not proper in Latin grammar, and this caused something of a backlash among traditionalists (or purists) of the use of Latin in the law. Nonetheless, “et als.” gained a fair number of followers and can still be found in many reporters and other sources where a case name is truncated to just the first party.
We will save the discussion of how &c was replaced by “etc.” instead of “et cet.” for another day.
The sole published opinion from the Court of Appeals today is from cross-appeals in a dissolution of marriage case. I am guess that the parties in John Stark v. Firouzeh Dinarany did not share Thanksgiving dinner last week. Stark objected to the circuit court’s admission of a post-nuptial agreement into evidence and its equitable distribution, while Dinarany objected to court’s rulings on support, equitable distribution and attorney’s fees (there was also an issue of child support with she “conceded” along with two other of her eight assignments of error — a word about this can be found at the end of the post). All in all, a fairly garden-variety divorce appeal with a perhaps slightly less than run of the mill set of facts.
Let’s start with the marriage, which lasted some less than a decade and produced one child (Dinarany had a child from a previously relationship). At the time of the marriage Stark was a member of the US Army (the opinion does specify whether he was enlisted or an officer) and four years into the marriage with 25 years in, he retired and took a diplomatic post with the State Department. If you know about military service pensions, you know that with 20 years, a service member can retire and begin receiving benefits immediately even if employed in another area of government.
After the couple separated in 2019, Dinarany continued to reside in the marital home with the children and “cancelled” a prospective lease. Stark continued to pay the mortgage on the home until he placed it in a forbearance program.
Now the introduction mentioned a post-nuptial agreement, but the couple also have a pre-nup which had a “no alimony” provision. The post-nuptial agreement was executed four years into the marriage which purported to “nullify” the pre-nup. Interestingly, neither party referred to either document in their initial pleading.
Stark, who filed for divorce on the grounds of dissertation, would subsequently produce the pre-nup in discovery asserting as the basis for denying Dinarany spousal support. Although Dinarany would subsequently maintain that she produced the post-nup which her attorney maintained was sent to opposing counsel, opposing counsel denied any knowledge of the post-nup.
At trail, Stark, or rather his counsel, did a peculiar thing. After testifying about the pre-nup, and only the pre-nup, he moved to have both agreements received by the trial court. The court, perhaps as perplexed by this turn of events as your reporter, indicated that it was his understanding that the parties were disputing the enforceability of the post-nup. Stark’s counsel, however, stated that he had no problem with the post-nup being admitted to evidence and then acknowledged that her client knew the agreement existed and “we’re not objecting to that”,” noting only that it was “produced after the [discovery] deadline.” Those statements are quite an about face (military allusion intended) from the pre-trial stance.
Thus, the issue became not whether there was a post-nup, but whether it was effective to “nullify” the pre-nup. I won’t bore you with the details because, as mentioned in the introduction, Stark only challenged the admission of the post-nup, not the court’s ruling on its application. However, I will commend to the reader to page six of the opinion for a quote from Stark’s counsel responding to a question from the bench about where her client resided (a factor in determining whether the post-nup was effective) — because, while it was a perfectly proper response from the perspective of avoiding a possible disadvantage for her client, I seriously doubt that it endeared her to the trial court because the subtext of the answer was “Judge, mind your own bee’s wax.”
In any event, the court found the post-nup was enforceable and so awarded support to Dinarany as well making other rulings with respect to the marital property for equitable distribution. However, the court did not award any portion of Stark pension to Dinarany.
Stark’s assignment of error challenged the admission of the post-nup on two grounds. First, he contended that it should have been excluded because it was produced after the discovery deadline. If you were paying even moderately distracted attention to the recitation of how the post-nup was admitted, you know that this argument went over with the Court like a lead balloon. In fact, the Court found quite a few reasons why the court’s admission of the post-nup was perfectly proper — but the most interesting reason had nothing to do with the fact that Stark was objecting to the court having received into evidence that he had proffered and which his counsel practically begged the court to accept. No, it was a different peculiar fact — one that you might have missed, so let me repeat it — “neither party referred to either document in their initial pleading.”
Why is that important? Well, because even though Virginia is a “notice pleading state” it is also “firmly established that no court can base its judgment or decree upon facts not alleged or upon a right which has not been pleaded and claimed.” In short, the first reason Stark could not complain about the post-nup nullifying the pre-nup is he never told the court he was going to rely on the pre-nup to wiggle out of paying support.
While the Court goes on to acknowledge that even if Stark could have relied upon the pre-nup (for example, if Dinarany had introduced it or conceded its application), he was the one that introduced the post-nup and then (through hos counsel) decided to play cutesy in responding to the court’s question about his current residence.
Dinarany’s appeal is much more of the garden variety that the initial impression of the case would have led one to believe. With respect to equitable distribution, which both parties beefed about, the determination of which is committed to the trial court’s discretion, the Court leave the judgment undisturbed. This is a sound decision under the principle that if both parties are unhappy with the result, the court got it right. The same result applies to Dinarany’s complaints about the amount of support and an award of attorney’s fees as a sanction for the late discovery.
There was one small victory for Dinarany, however, with respect to the court’s failure to award her a portion of Stark’s military pension. Here’s the thing about defined benefit pensions — if any portion of the pension was earned during the marriage, then some portion of the pension benefit is marital property and must be included in the equitable distribution. Since the evidence clearly established that some portion of the pension was earned during the marriage, Dinarany is entitled to some portion of that portion — so the court was plainly wrong in denying her any portion. The question is, how much?
Now with most pensions, especially those that are not yet being paid out, this can be a complex issue. However, on remand the trial court is going to have some help from the US Code, which has a neat little section all about figuring out how to divvy up a military pension. While there are a number of factors that can be asserted the change the basic calculation, no court has ever gone wrong by following the presumptive formula found in the Code and I am willing to bet that the court in this case will follow that formula to the letter.
Now, as promised, a word about Dinarany’s counsel “conceding” 3 of the eight assignments of error. I will be quite frank and say that I was confused by the court’s footnote at the beginning of the opinion saying that Dinarany had “conceded” her assignment of error on child support. Why would one assign error to some aspect of the judgment only to “concede” it on brief. Occasionally one will have to concede a point at oral argument where, for example, there has been an intervening decision rendering the point moot. But why would you assign error only to immediately concede the point?
Well, it turns out that Dinarany was on her (at least) third counsel who took over from the original appellate counsel who took over from trial counsel. This is revealed in a subsequent footnote explaining why two of the assignments of error relating to equitable distribution were also “conceded” because the first appellate counsel hadn’t noted that the issues were not preserved by the trial counsel. Now I am going to have to make a leap here, because that was the extent of the information in the footnote — i.e. that the counsel conceding the assignments of error was not the one who had raised it — but there is only one way in which the first counsel could have “raised” the assignments of error in an appeal of right, but not written the opening brief in which their lack of preservation was conceded. Rule 5A:25 requires the parties to attempt to agree on the content of the appendix — but if they can’t — then when designating the appendix separately, they must file with the clerk of the Court of Appeals a statement of the assignments of error.
Given the animosity of the parties and the fact that there were cross-appeals, there’s a more than fair chance that the parties did not agree on the appendix and Dinarany’s counsel filed the required notice with eight assignments of error. It would be more speculative to wonder if Dinarany fired this attorney when it was discovered that three of them were not preserved — but for whatever reason the new appellate counsel was probably wise to concede these points rather than attempt to make an ends of justice argument.