An event of some note occurred on July 28, 2022, but it received little fanfare. Indeed, I am somewhat chagrined that I was not more vigilant in reporting the event as it was something that I have been anxiously awaiting. What was the momentous event? Nothing less than the first opinion issued in an appeal of right filed in 2022 where the Court of Appeals exercised the authority of Code § 17.1-403(ii)(b) and Rule 5A:27(b) to dispense with oral argument “because ‘the dispositive’ issues in this appeal have been ‘authoritatively decided, and the appellant has not argued that the case law should be overturned, extended, modified, or reversed.'”
OK. So maybe I gave that revelation a bit more of a build-up than it deserved. However, at least for those practicing in the appellate courts, and especially those that practice criminal appellate law, you can be sure that James Davis v. Commonwealth of Virginia is going to be a must read opinion. Why? Because its the first real hint of how strictly or liberally the Court is going to use its power to dispense with oral argument in criminal appeals of right. Admittedly, the Court has already dispensed with oral argument in a few other cases under the new rule, but these were either Domestic Relations cases filed in 2021 that could have been summarily affirmed under the old practice or were pending 2021 criminal cases that were “bumped up” to appeals of right at the start of the year and likely would not have been granted appeals had the petitions been review for merit.
Let us take a look at the case in a little detail.
First, the opinion was issued per curiam with the panel give as Judges O’Brien, Lorish and Senior Judge Annunziata. Now, it so happens that another unpublished opinion issued on Tuesday had the same panel and that case, Jenkins v. Commonwealth, is one in which oral argument had been waived by the parties. This was a pre-2022 case and a little investigation confirmed that it was among the pending cases that were automatically granted when the new appellate regime went into effect on January 1.
Unfortunately, knowing this does not tell us how Davis came to be reviewed by this panel. It may be that the case was pre-screened for dispensing with oral argument and then assigned to a “no oral” panel. This seems likely, but it does not tell us how that case got to be “pre-screened.” The opinion states that “the panel unanimously holds that oral argument is unnecessary,” which suggests that the case could have been referred for oral argument had the panel not agreed — but again it does not tell us how the panel was called upon to make that decision.
In the past, summary affirmances were generally issued per curiam, so we can probably presume that cases for which oral argument is dispensed with will likewise be “unsigned.” In the past it was not unusual, though infrequent, to have a signed dissent to a summary affirmance. I think it unlikely that this will happen in 5A:27(b) cases because I can’t see a judge agreeing that oral argument is not necessary, but then wanting to reverse. However, this would not preclude a judge from concurring separately, though again I think it unlikely.
As an aside, I have recently been advised by someone in the know about such things, that the Court of Appeals has chastised a few attorneys for not being precised in their certificates with respect to whether they are merely “requesting” oral argument as opposed to “not waiving oral argument.” It is not clear to me how a request for oral argument is not an indication that one is not waiving, but apparently the Court may view it differently. This suggests that briefs that are not firm in asserting “non-waiver” of oral argument may be the ones getting pre-screened. But that is mere surmise.
Any who, back to the opinion. Now, frankly, I am not sure that I wouldn’t have let this one go to argument if I’d been making the call because I don’t see this as a “been there, done that, got that t-shirt” kind of case. To begin, Mr. Davis is a very bad man and this is not his first rodeo. This go round, he was convicted of attempted murder, malicious wounding, use of a firearm in commission of a felony, abduction, attempted strangulation, misdemeanor brandishing a firearm, and misdemeanor assault and battery. Previously, Davis had been convicted of manslaughter.
Now some of you familiar with the law of evidence are probably wondering, “Hmmm . . . why would the Court of Appeals make mention of a prior conviction? Surely the circuit court did not permit the Commonwealth to introduce that into evidence?” Well, that’s exactly what happened, though not at a trial, which would likely have been found to be very wrong. Rather, Davis entered Alford Pleas to all the aforesaid crimes, but objected to the introduction of his manslaughter conviction and a Court of Appeals opinion as well as testimony from a victim of another offense from way back in 1980.
Now I won’t go into any detail of the current offenses. Let’s just say that Davis got into a lover’s tiff with his (presumably now ex-)fiance. A tiff in which he asserted that “You belong to me. If I can’t have you, no one will. I won’t live without you, and we can die together” and “I’m going to kill you and we are both going to die and go to hell.” Davis the proceeded to demonstrate that he was willing to carry out at least the first part of that threat, but thankfully failed. We will never know if he would have gone ahead with the planned suicide or not.
Now we get to the crux of the appeal. During the sentencing hearing, the Commonwealth put on extensive evidence of Davis’ prior criminal history, including the testimony of the 1980 victim and the Court of Appeals’ opinion. These latter two elements of the evidence were introduced to rebut Davis evidence which, as best as can be determined from the opinion, was intended to show that due psychological factors he was not responsible for his criminal actions as they occurred during dissociative episodes that were the result of his long periods of prior incarceration.
You see, it seems that Davis was arguing, in effect, “Prison made me worse, so don’t send me back” and the Commonwealth wanted to rebut that by saying “No, you’ve been a bad guy all along.” The circuit court was actually quite generous in conceding that Davis had an extraordinarily tragic and traumatic life history, but declined to find that this sufficiently mitigated the severity of the current offenses. The Court imposed an active sentence of 40 years which, given that Davis was in high school just prior to his adult criminal offense in 1979, suggests that he will be in prison until he reaches 100 or so. This is a fairly significant upward departure from the sentencing guidelines, but in truth the judge’s reasons for doing so, in writing, indicate that she really thought Davis was not remorseful and, as I said, a really bad man.
On appeal, Davis challenged the admission of the Court of Appeals opinion, both as improper hearsay and not proper rebuttal evidence. Now, this is the issue on which I would have thought the Court would have wanted to hear oral argument because there is absolutely no law regarding the use of judicial opinions in this manner. However, the Court simply puts it down to the lenient rules of evidence and the court’s discretion. So now there is an unpublished, per curiam opinion that addresses this issue.
Jones also argued that the court did not properly weight the mitigating evidence in departing from the sentencing guidelines. As you can guess, this gets no better treatment by the court because the judge set forth her reasons for the upward departure, and the sentence was in her discretion.
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