Court of Appeals examines Code § 19.2-306.1 again, and deal with a lost will and the 6th Amendment

We get three new published opinions today from the Court of Appeals. The first will be of interest to criminal defenders and prosecutors as it gives more analysis of the new probation revocation rules. We also learn about proving a "lost" will and get a 2-1 decision on a 6th Amendment Speedy Trial case.

Jaron Devontae Nottingham v. Commonwealth of Virginia is an appeal from a revocation where the circuit court imposed 5 years of his suspended time because his violations were only “technical” ones under Code § 19.2-306.1. The original conviction was for breaking and entering and felony destruction of property in 2010 and he received five years for each offense.

Between 2011 and 2015, Nottingham collected three revocations, for which he served 30 days after first, five months for the second, and then two years to serve when he didn’t. If you are good at sentencing math, you know that Nottingham was still looking at 7 years and 6 months when he was again called to the courthouse to “’splain why” he was still misbehaving. Specifically, his probation officer reported Nottingham for “failing to report new arrests for firearm offenses and a speeding citation, possessing a controlled substance, failing to follow his probation officer’s instructions, failing a drug screen, and traveling out of state without permission.”

At the show cause, Nottingham admitted to the violations, but argued that under Code § 19.2-306.1 all the violations, being brought in a single action, should be treated as one technical violation. He further argued that since the adoption of the new revocation procedures occurred after he last prior violation, he was in essence entitled to a clean slate in so far as the statute provides from counting prior violations toward permitting the court to up the ante on the sentence imposed.

This appeal is the first impression of this issue and the circuit court and Court of Appeals, Judge Huff joined by Judges Fulton and White, agree with the Commonwealth that the new law did not give every defendant facing suspended time imposed prior to Code § 19.2-306.1’s enactment a “clean slate” with respect to prior violations. Even if not termed “technical violations” under the prior statutory scheme, the nature of the violations were the same and, thus, prior violations do count toward the calculation by the court of just how long it can lock the defendant away. Here, at least two of the prior violations counted as “technical” and, thus, the new violations, even if treated as a “single” violation because they were brought together in one show cause proceeding, are still a “third or subsequent” technical violation, given the court the discretion to do its worst (from Nottingham’s perspective, anyway).

Now there is an interesting footnote in the appeal which says that the Court imposed all the 2 years and six months of the remaining time on both sentences. But that’s only five years total, not 7 and ½ as indicated above. But Nottingham maintained that the court suspended “all” his remaining time. The Court says that it will “not address here whether the revocation order accurately recites the revocation history.” So, when Nottingham is once again free in about 5 years time, he probably needs to mind his p’s and q’s, or he might find himself back before the court to ’splain why he shouldn’t serve the remainder of his sentence.

Shonda Danniell Lynn Reedy, s/k/a Shonda Daniell Lynn Reedy v. Commonwealth of Virginia involves an issue that rarely gets much attention, Sixth Amendment Speed Trial. The reason that constitutional denial of a speedy trial if not commonly argued is that statutory speeding trial almost always precedes an Sixth Amendment claim, and it is highly unlikely that a conviction that withstands a statutory challenge will prove to be in violation of the sixth Amendment, and while the Court today finds no error in this case, the opinion did garner a dissent and that makes it worth a look.

Reedy provided false statement on a concealed carry permit – that’s perjury. She was indicted for this offense on August 3, 2020, but was not arrested until September 1, 2021. Released on bond, Reedy’s trial was set for November 29, 2021, but she moved to dismiss on constitutional speedy grounds on November 3, 2021. When the circuit court overruled her motion, Reedy entered a nolo contendere plea to the perjury charge conditioned on her right to appeal the speedy trial issue.

Reedy’s argument was based on the fact that police had visited her home on at least four occasions “on matters involving her children and stepchildren,” and that she had also been stopped by police twice, all while the capias was outstanding, but she had not been arrested. She contended that she had “memory problems” and could not recall what occurred when she applied for the permit.

Today, the Court of Appeals affirms the conviction in a 2-1 decision with Judge Malveaux, joined by Judge Beales, in the majority and Judge Causey in dissent. The majority finds that Reedy was not entitled to a presumption of prejudice and had not shown actual prejudice from the delay in here arrest and trial. Judge Causey, however, concludes that Reedy was not required to show actual prejudice from the Commonwealth’s delay because in her view the evidence shows that the Commonwealth’s negligence was not excused and, therefore, prejudice could be presumed. Expect Reedy to seek a rehearing en banc and/or a review by the Supreme Court.

John F. Glynn and Kevin J. Glynn v. Vita Kenney, Executrix of the Estate of Patricia Lynch-Carbaugh involves a lost will. The decedent was the mother of the Glynns, and the will in question disinherited them. If the will could not be proved, the sons would inherit by intestate succession. The record showed that Lynch-Carbaugh had employed an attorney to draft her testamentary documents and met with that attorney several times to discuss and update her testamentary plan. At the time of her death, Lynch-Carbaugh’s home was in a state of “disarray” and the will could not be found.

At trial, Kenney offered multiple theories of how the will came to be lost, with the Glynns arguing that because Kenney could not offer a single cogent explanation of how the will was lost, she was as a matter of law unable to meet the clear and convincing standard required to prove a lost will. Judge Humphrey’s, joined by Judges AtLee and Raphael, reject this argument on the ground that a proponent of a lost will need not prove how the will become lost, but rather must prove by clear and convincing evidence what the testamentary intent of the testator was at the time of death. Thus how the original of the will was lost is not relevant, only whether the proponent can overcome the presumption that a lost will was deliberately destroyed so as to revoke it.

The Glynns also lose on their argument that the circuit court erred in finding the evidence presented rose to the clear and convincing standard. The testimony showed that Lynch-Carbaugh knew how to change her testamentary plan, had repeatedly made clear that she intended to disinherit her sons and never gave any indication that she wish to die intestate. The Court of Appeals finds that the circuit court could have concluded from this evidence that it was clear and convincing that the will was merely lost in her disordered house.