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

Four Appeals from the Court of Appeals

Updated: Nov 22, 2022

The Court of Appeals issued two opinions last week, but a day later than usual owing to the election day holiday, and issued two more today. The most noteworthy of these is Jordan Heath Joyce v. Botetourt County Department of Social Services. It is noteworthy on two grounds: First, it is a reversal of a termination of parental rights -- a rare occurrence; second, the party whose rights were improperly terminated was the child's father, which is also rare as, tragically, in most TPR cases the father is incarcerated or absent entirely and, even more rare in this case, the mother did not also appeal the termination.

The issue in Joyce, as in most such cases, is whether the Department of Social Services adhered to its statutory directive to provide appropriate services to both the parent and the child in an effort to restore custody of the child to the parent, usually referred to as a goal of "return to home." In this instance, the record shows that while there was a protective order in place with respect to Joyce and the child, DSS did provide a plan for visitation with Joyce, but that this did not occur due to Joyce's "health situation." The protective order was later lifted, after it was determined that the allegations made in obtaining it were unfounded.

Apart from finding that placement with Joyce was not a viable option, it appears that DSS did not include Joyce in any of the plan for services offered to the mother and child. DSS conceded that he had contacted them at least seven times seeking to be included in the process, but DSS did not arrange for visitation or provide any services. While the circuit court found this to be "troubling," it nonetheless found that termination of Joyce's residual parental rights was appropriate because no services could have been offered during the time that the protective order was in place.

Given that the standard for termination of parental rights is clear and convincing evidence, it should come as no surprise that the Court of Appeals, Judge Humphreys joined by Judges Huff and Atlee, reversed the judgment. First, the Court concludes that the evidence did not support the circuit court's conclusion that DSS could not provide services to Joyce while the protective order was in place. The record demonstrated that Joyce was allowed visitation even during that period and, while he had been unable to participate in visitation, nothing would have prohibited DSS from setting goals for Joyce to prepare for parenting the child. As to the sufficiency of the evidence with respect to whether adequate services were provided to Joyce, the record was abundantly clear that no services were provided even after the protective order was lifted, despite Joyce's repeated inquiries.

David Brandon Cannaday v. Commonwealth of Virginia involved a charge of possession of over 100 grams of methamphetamine. Cannday received a 40 year sentence for this crime, of which the circuit court required him to serve the mandatory minimum of 20 years. On appeal, Cannaday contends that the trial court erred in failing to apply the safety

valve provision of Code § 18.2-248(H)(5).

What, you may ask, is a "safety valve provision" in this context? A “safety valve” is an exception to mandatory minimum sentencing laws. A safety valve allows a judge to sentence a person below the mandatory minimum term if certain conditions are met. Safety valves can be broad or narrow, applying to many or few crimes (e.g., drug crimes only) or types of offenders (e.g., nonviolent offenders). They do not repeal or eliminate mandatory minimum sentences. However, safety valves save taxpayers money because they allow courts to give shorter, more appropriate prison sentences to offenders who pose less of a public safety threat. This saves our scarce taxpayer dollars and prison beds for those who are most deserving of the mandatory minimum term and present the biggest danger to society.

So, now that we have defined the term, what exactly is the particular safety valve in this instance? As relevant to this appeal the statute provides that the "mandatory minimum sentence shall not be applicable if the court finds that . . . (ii) the person did not use violence or credible threats of violence or possess a firearm or other dangerous weapon in connection with the offense ." (Emphasis added.) There's a lot more to it than that, but the parties agreed that the real issue was whether Cannaday possessed a gun "in connection with" the drug offense. Cannaday admitted that he owned a gun and that it was in his constructive possession at the time he also possessed the drugs, but maintained that the it was not possessed in connection with the drug offense. He further maintained that the circuit court was required to make a specific finding that it was, whereas the court here merely stated that it found the safety valve "did not apply" without stating a specific factual finding.

This particular safety valve has not been interpreted by either appellate court, but similar statutes have been and the Court of Appeals, Judge Callins joined by Judge Chaney and Sr. Judge Petty, applies the same analysis here. First, the Court concludes that the circuit court was not required to make an express finding that Cannaday possessed the gun in connection with his possession of drugs. Rather, this was a reasonable inference from all the attendant circumstances.

Michael Charles Hogle v. Commonwealth of Virginia involves a DUI conviction and a motion to suppress the evidence. Specifically, Hogle, whose arrest was in 2019, maintained that Code § 46.2-646(E), which went in to effect in 2021, should apply retroactively to invalidate the stop of his vehicle. Subsection E eliminated the "primary offense" status for conducting a stop for an expired registration sticker that was less than 4 months overdue. The "usual rule" according the the Court of Appeals, Sr. Judge Petty, joined by Judges Fulton and Ortiz, is that "[a] tatute is retroactive only if the legislature includes an express provision or other clear language indicating that it applies retroactively." There was not such indication in the 2021 act, so the stop was valid at the time.

William Adam Boyd v. Constance Weisberg is the second "new jurisdiction" case in which a published decision has been issued -- that it, it involves a civil matter that previously would have been heard by the Supreme Court on petition, but is now an appeal of right to the court of appeals. Boyd owned and operated "To Charge Virginia," a credit card processing service, and Weisberg was a contract sales agent for the company. A dispute developed between Boyd and Weisberg, and when the latter indicated that she would bring suit to recover monies she believed were due to her, Boyd did something which on its face is very suspicious -- he formed a new out-of-state LLC and transferred all of To Charge Virginia's assets to this new entity in exchange for a payment of $10 cash in hand, effectively rendering To Charge Virginia insolvent.

Weisberg brought suit against To Charge Virginia, the new entity, Boyd and by subsequent amendment, another of his entities, VeriPay, which he formed during the pendency of the litigation and to which he transferred all the assets of the second entity. I am sensing a pattern here.

Weisberg ultimately prevailed before the jury, which awarded her $350,000 against Boyd personally for his fraudulent transfer of assets from To Charge Virginia, the amount of her ad damnum. The circuit court affirmed this verdict, and awarded Weisberg $149,041.90 in attorney's fees pursuant to Code § 55.1-403.

Although Wesiberg had also sought to "pierce the corporate veil," but dropped that effort, so the case here relies on Code § 55.1-403, the fraudulent conveyance statute. After the verdict, Boyd tried to argue that the statute did not apply to him personally because his sole role in the transfer of assets was as a corporate representative, not in his private capacity. The problem is Boyd had agreed to an instruction that permitted the jury to find him personally liable. The circuit court declined to review the instruction after the fact.

The Court of Appeals, Judge Athey joined by Judges Humphreys and Callins, agrees with the circuit court that the objection came too late. While a circuit court may review an instruction for error after the verdict is returned, it is not required to do so. In such cases, the instruction becomes the "law of the case" even if the instruction was inaccurate. This is so, even though Weisberg withdrew her attempt to pierce the corporate veil. Notably, the Court does not say that Boyd would have been correct to assert that his role as a "corporate representative" shielded him from personal liability -- in not doing so, the Court was probably thinking in terms of substantial justice having been done in this case and not wanting to provide any ammunition for a malpractice suit against Boyd's trial counsel -- which is likely coming anyway.

Boyd also contended that the fee shifting provision of Code § 55.1-403 did not apply to him because he was not personally a "participant" in the fraudulent transfers. The Court makes short shrift of this noting that Boyd unquestionably participated in the fraudulent transfers as that term is usually understood. Boyd also raised for the first time on appeal an objection to the verdict form used by the circuit court, but this issue is disposed of under Rule 5A:18.

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