The Court of Appeals Issues One Published Opinion – But why?

Today the Court of Appeals released one published opinion.  The question to my mind is “Why?”  Richard Roosevelt Hill v. Commonwealth of Virginia addresses what I thought was an issue of settled law – whether a circuit court retains jurisdiction to revoke a suspended sentence for violation of the terms of probation until the period of probation ends.  Well, the answer is it does, despite the creative effort of Hill’s attorney to assert that a court can have jurisdiction over a probation violation, but lack jurisdiction to do anything about it.

For those unfamiliar with the criminal process, allow me to provide a brief explanation.  When a court imposes a criminal sentence it often (but not always) suspends all or a portion of the sentence.  In doing so, it will usually impose terms on the defendant, which must be followed — this what we usually thing of a “probation.”  When a defendant fails to abide by the terms, the probation office can inform the Commonwealth, which can issue a show cause requiring the defendant to court and, if the court finds a violation has occurred, it can revoke the suspended sentence and send the defendant off to the iron-bar hotel (typically, courts will resuspend a portion of the sentence or sometimes simply give the defendant a strong admonition to return to the straight and narrow).  A famous judge of the Roanoke Valley called this the “‘splain why docket” as in “‘splain why I shouldn’t send you back to jail.”

In Hill’s case, he was convicted in March of 2015 of attempted unlawful wounding and sentenced to 3 years with all but six months suspended.  He was also placed on supervised probation for three years from the date released from confinement, which turned out to be December 16, 2016.  Wait.  What?  How did a six months to serve stretch into more than a year-and-half?  Well, it so happens that Hill had already “served” his six months while awaiting trial and, had in fact been released from jail a week before his sentencing.  Released, however, is not quite accurate, because he was turned over to federal authorities to serve a sentence imposed in another case (the opinion does not provide details).

After his release from federal prison, Hill ran afoul of the terms of his probation in 2018 before the three years were up and was sent back to jail for another year (leaving one-and-a-half years still suspended) and was placed on probation for two years after his release. Hill got out again and violated the terms of his probation again in 2020.  This time the court ordered Hill to serve the remaining full stretch – 18 months.

Well, Hill was having none of that, because, applying what the Court of Appeals refers to as a “creative interpretation” of the original sentencing order, in Hill’s view the term of suspension was shorter than the term of probation.  Hill argued in the circuit court and again in the Court of Appeals that the three years term of probation began to run on the date of the order, not the date of his release from the federal poky.  Moreover, he contended that the order failed to state the length of the period suspension (that is, for how long the two-and-a-half years of the suspended sentence would be hanging over his head).  Hill is technically correct that the length of the probation and the length of the suspension are not necessarily concurrent (and if not expressly stated, the length of the suspension is set by statute).  Because the 2015 order was silent as to the latter and the 2018 order likewise did not expressly state an additional period of suspension in addition to the additional period of probation, by the time of his 2020 violation of probation, Hill contended that the period of suspension had ended (actually back in 2018 while he was serving the additional year).

Reviewing the statutory authority of circuit courts to suspend sentences and impose terms of probation, the Court of Appeals rejects Hill’s “novel argument” by finding that the 2018 order plainly extended the time of probation and, therefore, the time of suspension as well.  The Court also rejected Hill’s assertion that the 2015 order went into effect on being entered and not upon his release from federal custody but noted that this did not impact its analysis of the issue since the 2018 order was timely under either theory.

Now here is where we reach the “why publish” part of the opinion.  In its concluding section of analysis, the Court notes that it is settled law that “[t]o be effective, probation must be concurrent with a coordinate term of suspension of sentence. Hartless v. Commonwealth, 29 Va. App. 172, 175 (1999).”  This is so because “[p]robation [is] meaningless if no sentence remain[s] for the court to impose if the defendant violate[s] the terms imposed.” Leitao v. Commonwealth, 39 Va. App. 435 (2002).

So why did the Court publish this case if the issue raised was already a matter of settled law?  Well, there could be several reasons.  Let’s start with the process for deciding whether to publish a decision.  In the Court of Appeals, the panel decides whether to publish, and usually the “writing judge” will make the call.  So, Judge Humphries, writing for Chief Judge Decker and Judge AtLee, may have simply thought that it was time to reiterate the rule.  It is also possible that the panel was of opinion that the case was sufficiently different from prior precedent because it relied on the combination of Hartless and Leitao.  This is the more likely reason, as the Court noted that there was a prior unpublished opinion that address a nearly identical set of fact – so with the possibility that the “novel argument” would make another appearance, the Court wanted to be sure there was a published opinion addressing it.

Double negative, Justice Goodwyn?

The Supreme Court of Virginia released one published opinion this morning. White v. Llewellyn is an interesting read if you find fraudulent conveyances of real estate interesting — I do, because it one of the few areas of the law where a prima facie case gives rise to a de jure presumption benefiting the plaintiff and, thus, the burden of production and persuasion shifts to the defendant (in most cases, the burden of persuasion always remains with the plaintiff).  I will not delve into the details, leaving that to the more capable prose of Steve Emmert.  However, I did want to take exception with one point in the opinion, authored by Justice Goodwyn for a unanimous court, and that is the final sentence which reads, “Thus, for the reasons stated, we will reverse the judgment of the circuit court and remand this case for further proceedings not inconsistent with this opinion.”  . . . not inconsistent?  English, unlike most Romance and Oriental languages, considers a double negative to reverse, rather than emphasize, the speaker’s/writer’s meaning.

I was a bit surprised to see Justice Goodwyn employ this phrasing when “consistent with this opinion” would seem to convey the same meaning.  I was even more surprised when a text search of Supreme Court of Virginia opinions revealed that “not inconsistent with this opinion” (or sometimes “not inconsistent with the views expressed” or a similar phrase) has been used 179 times by the Court.  While “consistent with this opinion” or similar wording has been used 743 times, that’s still a 19.5% usage of the double negative.

While I have the inclination to delve deeper into whether there is some significance to when the Court uses the straight positive as opposed to the “double negative” positive, alas I have not the time. Instead, dear reader, I shall leave you with this old chestnut: At an academic conference of linguists, a speaker was remarking on the unusual nature of the English double negative rendering a positive when Romance Languages consistently treat a double negative as emphatic.  The speaker noted further that there was no example of any language in which a double positive was treated as a negative.  At which point a voice from the back of the auditorium called “Yeah, Sure!”

Winning isn’t the only thing . . . sometimes it isn’t anything.

So I have been retired from public service for just over seven months and I spent the first several of those months resting, avoiding COVID and just generally contemplating a future that would include the occasional appellate case that caught my fancy.  While I have actually taken on several appellate cases and even filed briefs in two of them, much of my dabbling in a “real law practice” has been confined to the trial courts.  Specifically, I have had four cases that were concluded with favorable results for my clients.  I do not say that I “won” these cases because, even if I thought of lawsuits as win/lose propositions, I am not sure that I would be justified in putting these in the “win” column.  Let me explain.

Rarely does a lawsuit reach the point of a trial, or the cusp of one, in which one party is clearly in the right and the other is just as clearly in the wrong.  It possible that one part is without fault, but this does not mean that the other necessarily shoulders the blame.  Moreover, the justice system — civil or criminal — is often not set up to grant the relief that the party “more in the right” is entitled to.  To one degree or another, every case I have had as a private practice attorney (and countless more I worked on in my prior career) was really not a “win” for anyone.

The first case was a straightforward vehicle accident property damage case.  The plaintiff, who eventually became my client, started out  with an attorney, who quickly realized that there was a sufficient doubt as to liability that a recovery was not likely.  She informed the client and returned the retainer.  The client then waited before filing the suit on his in General District Court, by which time the defendant was no longer at the address he had resided at at the time of the accident, nor was the owner of the vehicle whose liability policy was the principal coverage.  The defendant driver was never located for service, but service was had upon the owner by out-of-state process through the Secretary of the Commonwealth, failed to respond and a default judgment was entered.  When an attempt to enforce the judgment was made, the owner, represented by his carrier, sought to reopen the case and assert lack of longarm jurisdiction.  I will spare you the details of the argument and why I believed it was not correct.  Suffice to say, however, that the pro se plaintiff was not able to convince the general district court that it had proper jurisdiction.  By this time, however, another attorney had become involved and asked me to consult on the issue.  An appeal was noted to the Circuit Court and then things got . . . ahem . . . confused.  First, the defendant made the mistake of thinking that the appeal was limited to the finding that there was no personal jurisdiction and that the circuit court would review that decision.  Except that was not the issue — rather, it was whether circuit court even had jurisdiction to consider the case because the district court had improperly reopened the case — the remedy we were seeking was a remand and reinstatement of the default judgment — and frankly this was the only why the plaintiff was going to recover.  While the remand was not certain, it was sufficiently in doubt that the matter would be worth pursuing in an appeal, and the insurance company that would be footing the bill the whole way was willing to settle for the actual amount that the client could have recovered (not the amount he sued for, which would not have been subject to proof at trial) had liability been found against the owner (itself a doubtful proposition).  So just before the matter was to be heard, we worked out an agreement in the circuit court hallway, explained to the client that this really was the best he could hope for, and he agreed to accept the offer.  But then got cold feet a few days later — and still has not signed off on the release of the claim.  Honestly, this should feel like a “win” as I know that the case could have dragged on for months, even years, before any resolution could have been reached and we got the client a guaranteed payment.

The second case was even more straightforward.  My client was being harassed and wanted a protective order, which requires a court appearance in the general district court after a magistrate issues a temporary protective order.  The level of harassment was probably not to the level that required a protective order, which imposes certain burdens on the defendant and can lead to criminal charges for a violation.  But it was also not insignificant and is the sort of thing that can escalate if not addressed.  The usual way to resolve these matters is by an agreed order of no contact and a stern admonition for the judge.  The defendant agreed with the former and the judge supplied the latter.  This too should feel like a “win,” except that the larger situation soon turned very bad and has left all involved having to deal with a traumatic experience.  I do not suggest that the result in the case had anything to do with what transpired, but it nonetheless was not the outcome I had hoped for.

The third case was my first actual “trial,” again in the district court.  The plaintiff was pro se and my client was a defunct and judgment proof corporation — so there was nothing really at stake and the sit could have just been allowed to go by default.  Except that the purpose of the suit was to obtain a judgment that could then be collected from a recovery fund maintained by the state for just such cases. Whether the plaintiff might have prevailed in obtaining relief with a default judgment was not a given, but the purpose of the trial was to establish whether an application for relief could even be maintained.  I will spare you the dreary details, but suffice to say that the court ultimately ruled that the plaintiff had not made out a prima facie case.  Again, not really a “win” as the client had nothing at stake, and I did feel bad for the plaintiff who might have had a chance, albeit slim, of obtaining relief from the recovery fund if the case had been presented by an attorney — but the potential recovery was not sufficient to warrant a contingency representation, and hourly fees would have truly been the tail wagging the do even if a recover was obtained.

Finally this morning I was in Circuit Court for the first time (recall that I dodged the bullet in the first case by way of a settlement) to argue an issue of first impression, meaning that there was no appellate case law from a Virginia appellate court I could present to support my argument.  What I did have was the persuasive precedent of ten other states that had ruled on the issue and all were going my way.  I also had a Commonwealth’s Attorney who was sympathetic to my argument, and a trial judge that was equally understanding.  The problem was that we also all new that there was really no solution to the problem, which is this:  What does the criminal justice system do with a defendant, presumable competent at the time he was tried and convicted, but who is now on probation or parole who and is no longer sufficiently competent to be judged by the court when he violates the terms of his release, but is also not sufficiently docile that he can be released to the community safely?  He cannot be tried for the new offense, so he cannot be held on that charge, but can he be returned to prison for violating the terms of his release — a proceeding which is not an issue that may or may not be subject to the same standards as a criminal trial. Complicating this matter the utterly insufficient amount of resources to treat those are not competent to be tried, but are still a danger to public safety.  Even if we had adequate resources to restore such persons to competency when properly medicated to function outside a treatment setting, but cannot be adequately monitored if allowed to return to the community and cannot receive the same level of treatment in the penal system.  So, the issue really wasn’t whether the court was going to rule favorably in my motion — I had been called in under the assumption that if the court did not do so, the issue would be appealed so that Virginia could have a chance to clarify the law — but what would happen to the client if the circuit court or the appellate court decided to join the other states in finding that an incompetent defendant cannot simply be returned to prison every time he violates the terms of his release because, in effect, he cannot understand the process or assist his attorney in defending himself?  The court did accept that Virginia almost certainly would follow the existing precedent, and ordered an evaluation for competency, but due to limited resources this could take months — even assuming that the defendant will cooperate, which is doubtful.  It’s a Catch-22 — an that means its a no-win situation.