Just over 13 months ago I started this Blawg and one of the first posts involved an unpublished opinion which was worthy of a mention because it demonstrated a trap for the unwary when timing the filing of transcripts. At the end of the post, I noted that the appellant was likely due a delayed appeal. Today’s one published opinion from the Court of Appeals now addresses the merits of the appeal that was previously ruled to be procedurally barred. As Yogi says, “It’s like déjà vu all over again.”
[Editor’s note: Yogi Berra famously titled one of his memoirs The Yogi Book: I Really Didn’t Say Everything I Said, but this quote is a true Yogi-ism. Berra explained that it originated when he witnessed Mickey Mantle and Roger Maris repeatedly hitting back-to-back home runs in the Yankees’ seasons in the early 1960s. Another famous Yogi-ism, “When you come to a fork in the road, take it,” was actually an accurate statement. Yogi was giving catcher Joe Garagiola directions to Berra’s home in rural New Jersey; it didn’t matter which of the two routes one followed from the fork in the road, as they both eventually led to the house. Opening day, BTW, is March 31.]
Before we get to the opinion, let’s consider the process that brought the case back to the Court of Appeals. One might ask why, if the Court was certain to allow the delayed appeal, it did not simply address the merits of the case last year? I could wax eloquent on the need to follow proper procedure or simply observe that “this is how the statute requires it to be done,” but the truth is there is no real reason why the appellate Courts couldn’t do this in criminal cases where the appellant is at no fault for his attorney’s error — except that this would then remove any incentive for the attorney to get it right — and with 20-25% of all appeals still being dismissed on procedural grounds, removing incentives to do the job right is not the direction to go.
Attorneys who make procedural errors in criminal appeals are subject to “attorney in error” reports from the appellate courts to the State Bar. Depending on the severity of the errors and their frequency — and, yes, there are many repeat offenders — these reports can result in disciplinary action up to and including revocation of the attorney’s license. But even with this potential consequence, the errors continue.
Is this “fair” to the defendant, especially if the attorney is court-appointed and, therefore, not really of the defendant’s choosing? No, of course it isn’t. Even if he is out on bond pending the appeal, the defendant still has the anxiety of the continuing process and uncertainty about his future. But the alternative would be equally unfair in that it is reasonable to assume that allowing a procedurally defective appeal might frequently result in the defendant having an obviously slack attorney representing him on the merits — after all, if the attorney can’t follow the rules of procedure to perfect the appeal, how likely is it that he did a good job on the merit argument?
This brings us to the appeal of Anthony Andre’s Mackey v. Commonwealth of Virginia. Mackey was indicted under Code § 18.2-374.3(C), which prohibits the use of a communications system to solicit, with lascivious intent, a person the accused knows or believes to be younger than fifteen years old. At the conclusion of a bench trial in the Circuit Court for Rockbridge County, the trial court found “some ambiguity in the victim’s testimony about whether she told [appellant] she was fifteen or about to be fifteen.” Accordingly, the trial court decided not to convict appellant as charged but instead convicted him of violating Code § 18.2-374.3(D), explaining that it “is the same offense [but] requires an age of at[] least fifteen but younger than eighteen.”
The procedural kerfuffle that led to the first appeal being dismissed resulted from a post-verdict motion arguing that the offense of conviction was not a lesser offense of the indicted offense, or that the change in the charge was otherwise an improper amendment to the original indictment. The trial court overruled the motion. If you are interested in the procedural kerfuffle, I refer you back to the earlier post linked above. For purposes of this post, we can simply proceed to the Court of Appeals’ resolution of the merits.
The Court of Appeals first addresses the Commonwealth’s assertion that the objection was untimely because it was raised in a post-verdict motion. This is one of those issues that vexes appellate attorneys, especially if they have been around long enough to remember when preservation by a post-verdict motion was generally considered sufficient for any issues arising, as this one did, after the presentation of the all the evidence and summations. If the court had convicted Mackey for the original charge and the post-verdict motion had been to challenge whether the evidence showed that the victim was under 15, that objection would undoubtedly have been ruled as not timely. But here, the Court of Appeals finds that the judge’s decision to change the offense was a “ruling” addressing the lesser included offense to which the motion to reconsider was a timely response.
The Court also finds that Mackey’s argument regarding the improper amendment of the indictment is not barred because there was no ruling on this prior to the verdict. Rather, it was raised in the post-verdict motion for the first time and addressed by the trial court. Therefore, it is proper for the appellate court to review whether the trial court erred in not setting aside the verdict on this ground.
The Court first addresses whether the offense of conviction was a lesser included offense of the indicted offense and finds that it was not. To be a lesser included offense, a crime must have no element different from that of the offense charged. While it can have fewer than all the elements (for example, battery is a lesser offense of aggravated battery because it has all the same elements except for the “aggravated” level of the offense), it cannot have an element that the other crime does not. Here, an element of the crime charged was that the victim be under the age of 15, while the crime of conviction required proof the victim was at least 15 but under the age of 18.
If you are scratching your head over how the crime of conviction is not a lesser offense, you need to be aware of the rule of lenity which requires the courts to construe penal statutes strictly against the Commonwealth as written without ignoring any words. Had the statute simple required proof that the victim was under 18, it would have been a lesser included offense of a statute that required proof that the victim was under 15. But as worded, the statute requires proof that the victim is at least 15, which is a separate issue of proof. If the charge is under subsection D and the evidence shows that the victim was 14 and 360 days, the defendant cannot be guilty of that offense.
As to the argument that the trial court improperly amended the charge, the Court of Appeals agrees that trial courts generally have the authority to make the charge conform to the evidence. But, the Court notes, this authority is not absolute. Moreover, the trial court must follow specific procedures for amending an indictment, which were not followed here. Thus, even if the court intended to amend the indictment (and, the Court notes, it never expressly said that it was doing so), the failure to follow the procedure required by statute means that any such error was not harmless.
So, despite the year and a month delay due to the procedural defect in his original appeal, Mr. Mackey gets his day in appellate court and comes away with a reversal and dismissal of the charges against him. I would not be surprised to see a Commonwealth’s appeal in this case, as it is likely to want a review both of the preservation of the argument and the determination that subsection D is not a lesser included offense.
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 🙂