Another Ho Hum Opinion with a Very Long Hummmmmmmmm . . . and I wax semi-eloquent on the role of And

The Court of Appeals issued one published opinion today and, if it lacks the automatic snooze factor of last week’s administrative law appeal, it was no more interesting given that its subject matter, “Speedy Trial in a Time of COVID,” is one that is not likely to generate any surprises.  Jovan Anthony Ali v. Commonwealth of Virginia generates a surprise only by its length, clocking in at just over 26 pages.

Ali was convicted of unlawful wounding in violation of Code § 18.2-51 as a lesser included offense of malicious wounding.  The incident occurred in July 2019, Ali was arrested about two months later and Ali was indicted on March 16, 2020, which coincidentally was the date the Supreme Court of Virginia issued its first judicial emergency order in response to the COVID-19 pandemic, restricting trials and non-emergency proceedings as a result.  As the pandemic continued, all jury trials were suspended.  The opinion does not state whether Ali or the Commonwealth requested a jury trial, but in any case, Ali was not tried until November 2020 — well beyond the statutory time for a speedy trial, as Ali was held in custody by the Commonwealth for the entire time.

Ali made repeated objections based on both statutory speedy trial and constitutional speedy trial, the latter being a due process matter based on the 6th Amendment.  The circuit court was having none of it, citing the emergency orders of the Supreme Court as a basis for denying the statutory claim, and further finding that even if there were no orders, the pandemic would have justified the delay, and further finding no prejudice to Ali from the delay that would raise due process concerns.  Ali was sentenced to five years, with the circuit court imposing that sentence, of which Ali had served just over a year.  [Side note:  I am willing to hazard a guess that had Ali agreed to a plea to the reduced charge, which I suspect the Commonwealth offered or was at least open to considering, the court would have sentenced him to less time and suspended most of it — with good time credit, he’d likely have been out well before his eventual trial date.]

Ali appealed only the speedy trial issues, apparently having no truck with his actual conviction, and today the Court of Appeals affirms.  With respect to the statutory claim, the Court notes that Ali does not challenge the authority of the Supreme Court to issue the emergency orders, thus the Court need not address the circuit court’s assertion that the pandemic in and of itself would have justified the failure to comply with the statute.  Finding, as it has already in other circumstances, that the suspension of normal trial process was justified by the judicial emergency of a global pandemic, the Court concludes that the circuit court correctly denied Ali’s statutory claim.  The Court does this in just six pages, including the recitation of the facts and summary of the parties arguments.

The other 19 pages are devoted to Ali’s due process claim.  While I commend Chief Judge Graff, writing for herself and Judges Ortiz and Causey, for her thoroughness and diligence in addressing as vital an issue as the right to a speedy trial, I don’t believe that a summary of that analysis would be of particular benefit here.  Suffice to say that Ali did not suffer any prejudice from the 21-month period between indictment and trial that would warrant setting aside the judgment for due process concerns.

There were 10 unpublished opinions this week (addressing 11 appeals).  The only one of particular interest is Karen Clevonne Frazier v. Commonwealth of Virginia, an Anders opinion granting leave for appointed counsel to withdraw.  Frazier was convicted on a guilty plea, and the circuit court sentenced her to a lawful sentence.  As any good practitioner should know, a guilty plea is a waiver of most issues that can be raised on appeal. There are two issues, however, that can be raised — the jurisdiction of the court to try the defendant and the lawfulness of the sentence imposed.

Lack of jurisdiction, as we all know, can be raised at any time.  However, it is also very unlikely that a criminal case would reach the circuit court without that court having jurisdiction — personal or subject matter — over the defendant and the offense charged.  I am sure a law professor could come up with a scenario where one might credibly challenge jurisdiction — perhaps based on some defect in the indictment.  However, in the real world, it’s just not very likely going to be an issue that needs to be addressed.

Likewise, to be “unlawful” a sentence must either exceed that which is allowed by statute or constitute an abuse of the circuit court’s discretion.  When that former occurs, usually as the result of a typographical error in the sentencing order, for example a substitution “years” for “months,” or on rare occasions where the court imposes a sentence based on the charge of the indictment when the defendant pleads to a lesser offense.  The latter is, well, just not a viable issue for appeal if the sentence is lawful . . . or is it “viable?” You see, just because one knows that Court consistently rejects abuse of discretion arguments challenging otherwise lawful sentences does not, in my view, make the argument wholly frivolous. And therein lies the rub, as an Anders brief is for wholly frivolous appeals.

Thus, when an appointed attorney is directed to file an appeal following a guilty plea, the choice is between filing a nearly frivolous appeal asserting that the sentence was, if not unlawful, certainly unduly harsh, or filing an Anders brief seeking to withdraw as counsel.  An Anders brief requires the attorney to include all possible grounds for appeal and also demonstrate that they are without merit.  Thus, appointed counsel are often faced with the dilemma of whether they have an ethical duty to file an Anders brief in such cases, where the latter is objectively more difficulty to file — making both the argument and the rebuttal as opposed to just the argument.

My view has always been that they are not ethically required to do so in the Court of Appeals.  Rather, I think the attorney can file a standard appeal, waiving oral argument, and making clear in the the brief that the attorney recognizes the near futility of the appeal.  Why?  Several reasons, but I will cite just two:

First, appointed-clients are entitled to the best representation an attorney can provide, and seeking to withdraw at the first stage of the appellate process will likely damage the client’s probably already jaundiced-view of the court-appointed counsel.  Even if you explain the futility of the appeal to the client, they will hear “I am not interest in making your case because I don’t get paid enough.”  Clients who feel they have been dis’ed are clients who file bar complaints — and even if the complaint has no merit, it can still inconvenience the attorney.

Second, filing an Anders brief in the Court of Appeals does not relieve the attorney of two important duties — to consult with and advise the client of the effect of the order permitting counsel to withdraw and to file a notice of appeal and request for appointment of new counsel if the client directs the attorney preserve the right of appeal to the Supreme Court — these duties are non-waivable even when the attorney has been relieved as counsel by the Court.

Contrary to a widely-held misconception, a granted Anders does not eliminate the indigent defendant’s right to appointed counsel or to pursue the appeal to the next level, and even when given leave to withdraw, the attorney cannot simply “ghost” the client.  There have even been instances of a newly appointed counsel finding some flaw in the trail proceeding resulting in a remand of the case to the Court of Appeals for a full briefing on the merits (albeit this was not in a guilty plea case, but one where the attorney simply wanted to be shed of a difficult client).  Typically, the client will simply appeal the case himself, confirmed in his belief that appointed-counsel are worthless, but this fact does not eliminate the duty of the former counsel to properly close out the litigation.

So, what about filing an Anders petition in the Supreme Court?  Well, I can certainly see why an attorney who didn’t file Anders in the Court of Appeals might reasonably say, “Appealing the judgment of the Court of Appeals would be wholly frivolous, so now I must file and Anders.”  And, technically, the attorney would be correct.  Technically.  But, I am equally sure that the Supreme Court of Virginia will never take offense at an attorney filing a standard petition in such cases, provided that attorney acknowledges the near futility of the appeal.  Certainly, the Court is not going to refer such attorney to the bar, so long as the appeal is otherwise procedurally correct.  More to the point, being relieved as counsel by the Supreme Court is a pointless measure.  Once the state appellate process is complete, the attorney has no duty to pursue further relief on behalf of the client, either by writ of certiorari to the US Supreme Court or by state or federal habeas.