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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

Court of Appeals Opinions from September 27, 2022

Updated: Jan 18, 2023

As the Blawg continues to play catch-up, we have two more criminal appeals from the Court of Appeals, these having been issued on September 27, 2023.

Jason Harris v. Commonwealth involves the problem of screening a member of the Commonwealth's Attorney's Office who was previously in private practice when a former client once again finds himself the object of a criminal prosecution. As a general rule, the so called "Chinese Wall" method of dealing with conflicts is not allowed, but there is one significant exception for government employees. Because it is commonplace for government attorneys to move back and forth from the private sector, the Rules of Professional Responsibility do permit the use of screening to avoid potential conflicts.

In Harris the conflict arose from the ACA's having represented Harris in two revocation hearings while she was a public defender. When Harris was charged with a new offense, the Commonwealth's Attorney declined to seek a special prosecutor, reasoning that the new offense was not related to the matter in which the ACA had represented Harris, and that screening her from the case would be sufficient.

Harris entered into a plea agreement, but before it could be entered, he found himself in even more trouble. This time, his public defender made a formal motion for the appointment of a special prosecutor. After receiving assurances from the Commonwealth that Harris' former counsel would have no involvement with the prosecutions, the circuit court denied the motion. Harris appealed from both cases, arguing that the conflict should have disqualified the Commonwealth's Attorney from prosecuting Harris.

Normally, I don't bother to identify the jurisdiction from which an appeal arises as it is not generally relevant, but in this case I think it is worth observing that this case arises from Fauquier County. Fauquier is just on the edge of the Northern Virginia sprawl, but is still a relatively rural county. Why is that relevant? Well, when a special prosecutor is appointed, generally a prosecutor is chosen from a neighboring jurisdiction in a different circuit. Why a different circuit? Because this helps give the appearance of full independence where the special prosecutor does not regularly appear in from of the judge trying the case. For the same reason, when a retired circuit or district judge sits by designation following recusal of the judges of a locality, he or she is not a retired judge of the court that is recused (this does not apply where the judge is sitting by designation merely to assist with the caseload or for an absent judge). The two neighboring counties that are not in the 20th circuit are Prince William (31st) and Stafford (15th). Manassas is the county seat of Prince William, about a 30 minute drive to Warrenton, the county seat of Fauquier, but Prince William is a rapidly-urbanizing jurisdiction and I would imagine its ACAs are pretty busy. The Stafford County Courthouse is more like an hour drive. Stafford County is a little further along in growth than Fauquier, with about double the population, but its likely that it's Commonwealth's Attorney's Office is not yet gaining extra staff. In short, it probably would have been a significant inconvenience for either office to supply the special prosecutor, and while this factor alone should not be the determining factor for whether the local prosecutor should recuse, it is certainly a relevant consideration where the charges are not significant and the conflict is not that great.

On appeal, the Court of Appeals, Judge Lorish joined by Judge O'Brien and Sr. Judge Annunziata, first note that with respect to the case in which Harris entered a guilty plea, he has waived any objection to the potential conflict. With respect to the additional issues, the Court finds that, assuming without deciding that the conflict did present an actual probability that the former public defender was privy to information that was prejudical to Harris in the current proceedings, the Commonwealth effectively screened her from the proseuction.

The other case from September 27, 2022 is Eva Carol Belcher v. Commonwealth and it involves an offense that is likely to be increasingly common with the aging of the Baby Boom generation, abuse of a position of trust with respect to an elderly person. Belcher was a caregiver who had access to her patient's credit card. Belcher was indicted on over 38 separate offenses of fraud to obtain money, goods, or services in violation of Code § 18.2-186.3. In a jury trial she was acquitted of all but seven misdemeanor and one felony count.

The issues on appeal include the sufficiency of the evidence, the admission of testimony by the victim's son concerning the reduction in expenses for his mother after Belcher was dismissed offered to show that her purchases were not for the victim's benefit, and the jury's recommendation of sentences that did not comport with the law. The Court of Appeals, Judge Friedman joined by Judges AtLee and Raphael, affirm on the sufficiency and evidentiary issues, but reverse on the sentencing issues.

The circuit court's failure to address the improper sentences with the jury is baffling to me. It is well-settled law that a defendant cannot be sentenced in excess of the punishment permitted by law and cannot waive an objection to an unlawful sentence. While the court was clearly aware that the jury had not properly discharged its duty, he dismissed the jury and subsequently "adjusted" the sentences after the pre-sentence report was filed. This case obviously preceded the option for a jury trial with judge sentencing, but even if it hadn't, where the jury is the sentencing body, only the jury can pronounce the sentence. The judge can suspend a portion of the time or fines to render a less harsh active sentence, but he cannot correct an unlawful sentence imposed by the jury.

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