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  In addition, there was an unpublished opinion that is worth of a mention, so let’s start there.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.