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

Four Opinions and one En Banc Grant

The Court of Appeals released four published opinions today, and also announced the grant of rehearing en banc. Let's start with the en banc grant because, frankly, it's a bit of a surprise. The case is Osman v. Commonwealth, and the opinion was released just four weeks ago. I summarized the case in one of the "catch-up posts" following the transition to the new website. If you don't want to go back and read that post, let me summarize the summary: Osman was estranged from his wife and subject to protective order. In what appears to have been an ill-conceived to attempt to kidnap her and their child, Osman confronted his wife in the parking lot of a fitness club. Fortunately, two passersby intervened and Osman fled. He was eventually captured some months later and, following delays for COVID and on his own motions, was convicted of several offenses. His appeal went almost nowhere. While the Court of Appeals found that he was unquestionably guilty of the offenses with which he was charged, the Court did reverse one conviction, finding that Osman had been incorrectly charged with a felony level offense when it should have been a misdemeanor. The case was remanded for re-sentencing on the lesser offense. I noted that while this would reduce his total time to serve, he was still facing 20 years in prison and likely deportation at the end of his sentence, so it really was not much of a victory for him.


What is unexpected about the rehearing grant is 1) there was no dissent in the panel opinion, and 2) it was the Commonwealth that sought the rehearing. Had Osman filed for a rehearing (and he may well have), I would have expected a quick denial. But the Commonwealth's filing here is a bit baffling. The Commonwealth can only be aggrieved of the reversal of the overcharged offense. If the basis for the rehearing is an obvious error (perhaps the panel misread the record on some point) which the Commonwealth merely wanted to have corrected, a rehearing petition to the panel and a revised opinion would be the normal route to go. But a rehearing en banc means the Commonwealth disagrees with the legal reasoning of the panel. While I have not seen the petition, which while a public document is not readily available online (note to the OES -- please bring the appellate courts into OCRA and the 21st century), I assume that the Commonwealth is taking issue with the panel's interpretation of Code § 18.2-47 and its construction of the word "punishable" in that statute. The next en banc date (after today, with the Court sitting on two cases) is January 31, 2023, so we will likely see Osman argued then or possibly on February 28.


The four opinions released today are all from criminal appeals -- three of them addressing 2022 filings, so we are beginning to see appeals of right more frequently. Patrick Edward Cornell v. Commonwealth of Virginia is the lone pre-appeal of right case, and it is likely given its docket number that it was a "legislative grant." The issue, however, is one that the Court would likely have addressed in any case, because it involves a peculiar action by Cornell's appointed counsel. When a defendant with appointed counsel insists on filing an appeal, the attorney is required to determine if there is any merit to doing so, and if known can be found, the attorney should file an Anders brief. Anders was a US Supreme Court case in which the Court decided that an attorney had an ethical (and often statutory) duty to the appellate court to not file a frivolous appeal, and that this duty counterbalanced the duty to zealously represent the client. The Court determined that the solution to this dilemma was to have the attorney file a brief that explained why the appeal was frivolous by noting every possible error that might be raised and then showing why it lacked merit and being asked to be relieved as counsel.


As one might guess, filing an "Anders brief" often takes more effort than filing a garden variety challenge to the sufficiency of the evidence or the harshness of an otherwise lawful sentence. It's also more work for the appellate court, because rather than just reviewing the assigned error, the court has to review the record to be sure counsel didn't miss some issue. Plus, the appellant is allowed to submit his own argument that 1) his counsel should not be filing an Anders and 2) all the reasons he thinks the judgement should be reversed. As a result, very few Anders briefs get filed.


But an Anders brief was filed in Cornell . . . sort of. Cornell's attorney filed "n appellate brief

that substantively addresses certain assignments of error but submits others for our consideration under Anders." Sorry . . . What? When I read that, my first thought was "either an appeal is frivolous or it is not, if there is any merit to even one error, you can't file an Anders brief." But it then occurred to me that the attorney was trying to cover his backside by raising frivolous issues that his client was urging, nay, DEMANDING, be included in the brief. May the attorney was trying to avoid a bar complaint (frivolous, to be sure, but still a pain).


However, I am still of the opinion that this is not an Anders situation. Rather, there is another mechanism for dealing with a client who insists that you include the argument that the Moon is made of green cheese (when everyone knows its white cheddar). You file a Hammer appeal. What, you may ask, is a Hammer appeal? Well, I commend to you the Court of Appeals recent decision in Hammer v. Commonwealth, 74 Va.App. 225 (2022) in which the Court resurrected some language for Fitzgerald v. Bass, 6 Va. App. 38 (1988), to the effect that an attorney can balance the duty between not filing a frivolous appeal and the duty to follow the client's demand by telling the Court that counsel has done just that. In essence, you say, "My client has asked me to raise umpteen issues in this appeal, but in my professional judgment none of them are worthy of this esteemed Court's time, so I have selected the one (or several) that I can plausibly raise." Perhaps my favorite quote from Hammer is "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal."


To be fair to Cornell's counsel, his brief was filed before Hammer was released, so his approach of filing a semi-Anders was not unreasonable. In the brief counsel raised five issues, but stated that two of them were without merit. It was a good thought, but today the Court of Appeals, joining with other jurisdictions that have reviewed the issue, holds that Virginia will not recognize a "hybrid Anders." Accordingly, the two frivolous assignments of error are not considered. The three issues that were ostensibly not frivolous -- sufficiency of the evidence, credibility of a witness and the denial of a motion to continue the sentencing hearing -- are given equally short shrift. Without going into details, Cornell was convicted of the sexual battery of his girlfriend's nine-year-old daughter. The Court of Appeals, Judge O'Brien joined by Chief Judge Decker and Senior Judge Haley, affirmed, holding that the credibility and sufficiency issues were matters for the jury and the denial of the continuance was not an abuse of discretion and that in any event Cornell suffered no prejudice for being required to go forward with his sentencing.


Peter Timothy Gionis v. Commonwealth of Virginia involves the "three-strikes" for petit larceny rule of Code § 18.2-104, where a third or subsequent petit larceny is a felony. A quick word about petit larceny. Petit larceny was in Virginia for many years truly "petit" as the line between petit and grand larncey (that is between a misdemeanor and a felony offense) was $50. Naturally, that line was drawn some time back in the 20th century when $50 was a fair amount of money. In the 1800s the line was drawn at $20, which was then considered a considerable sum -- which is why the Seventh Amendment is applicable only to cases "where the value in controversy shall exceed twenty dollars." Eventually, the General Assembly moved the line to $200, then $500, and finally to $1000, where it remains today. Now, Mr. Gionis committed his in May of 2020, back when the line was at $500.


Unfortunately for Mr. Gionis, it is also before Code § 18.2-104 was repealed. You see, as part of the reform of the criminal law that included making the theft of money or property valued at less than $1000 a misdemeanor, the legislature also did away with the statutory provision that a third or subsequent petit larceny would be a felony. This was actually quite a controversial action given that thieves were not only being allowed to steal more valuable stuff, but they could now do it repeatedly without getting a felony record. However, the truth is that the three strikes rule was honored more in the breach than the observance, because it was a handy bargaining chip for plea deals -- "take the deal and we will drop the third petit to a first."


Mr. Gionis apparently rejected a plea deal (the opinion does not say what it was, but its a fair guess that it was to reduce the offense to a misdemeanor), and went to trial. By the time of his trial, Code § 18.2-104 had been repealed and Gionis contended that this meant he was not subject to the enhanced penalty. The circuit court, consistent with Ruplenas v. Commonwealth, 221 Va. 972 (1981), ruled that the change in the law not retroactive. Gionis then entered an Alford plea and appealed this ruling to the Court of Appeals.


The Court of Appeals, Judge Beales joined by Judges Malveaux and Causey, unsurprisingly declines Gionis invitation to overrule Ruplenas. The repeal of Code § 18.2-104 was a substantive change in the law and, thus, is presumed to not to be applied retroactively. As the repealing act gave no indication that the General Assembly thought otherwise, Gionis was subject to the former version of the statute.


Priscilla Ann Holmes v. Commonwealth of Virginia is a "two-fer" in that the opinion has to record numbers, but the opinion does not explain why. As there are only two issues arising from two convictions, presumably Holmes' attorney either filed separate appeals for each conviction or separate appeals for each issue, more likely the former. Holmes was convicted of racketeering under Virginia's state RICO Act. RICO is more often a federal crime; as a state offense, its typically brought in cases such as this where the allegation is that the defendant acts as a "ringleader" but the criminal offenses are committed by proxies.


In this case, Holmes was the wholesale distributor of methamphetamine and the chief witnesses against her were several of her retailers. The Court of Appeals, Judge Fulton joined by Judge Ortiz and Senior Judge Petty, concludes that this evidence was sufficient to prove the racketeering. However, the panel concludes that the jury was not properly instructed with respect to reliability of uncorroborated accomplice testimony, and one that basis the convictions are reversed and the case remanded for a new trial. I suspect that the Commonwealth will at least consider a petition for rehearing en banc or an appeal to the Supreme Court.


Brian Craig Henthorne v. Commonwealth is also a reversal, but not from a conviction. Rather, Henthorne will get a re-sentencing on a revocation courtesy of Judge Malveaux joined by Judges Beales and Causey,the same triumvirate that fave no joy to Goinis. Henthorne was convicted of providing a false ID to a law enforcement officer and sentenced to 180 days, with all time suspended for 12 months. Henthorne was then finishing a sentence for another offense, and when he was released he failed to report to his probation officer "within three days," and in fact never reported. At the "'splain why" hearing, the court imposed 80 days of the suspended sentence.


The issue on appeal is whether the failure to report to probation is a "technical violation" of probation which under Code §19.2-306.1 would limit the ability of the court to impose active time. At trial the matter was discussed in some detail, with the court concluding that because Henthorne never reported for supervision, his violation was not technical, interpreting the "within three days" as requiring the probationer to eventually report before being violated. The Court of Appeals finds that this is not a proper construction, finding that the violation is for failure to report and that the three days is merely a reasonable time for the probationer to do so.





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