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

It’s Like Déjà Vu All Over Again . . . One Published Opinion for the Court of Appeals

Just over 13 months ago I started this Blawg and one of the first posts involved an unpublished opinion which was worthy of a mention because it demonstrated a trap for the unwary when timing the filing of transcripts.  At the end of the post, I noted that the appellant was likely due a delayed appeal.  Today’s one published opinion from the Court of Appeals now addresses the merits of the appeal that was previously ruled to be procedurally barred. As Yogi says, “It’s like déjà vu all over again.”

[Editor’s note: Yogi Berra famously titled one of his memoirs The Yogi Book: I Really Didn’t Say Everything I Said, but this quote is a true Yogi-ism. Berra explained that it originated when he witnessed Mickey Mantle and Roger Maris repeatedly hitting back-to-back home runs in the Yankees’ seasons in the early 1960s.  Another famous Yogi-ism, “When you come to a fork in the road, take it,” was actually an accurate statement.  Yogi was giving catcher Joe Garagiola directions to Berra’s home in rural New Jersey; it didn’t matter which of the two routes one followed from the fork in the road, as they both eventually led to the house. Opening day, BTW, is March 31.]

Before we get to the opinion, let’s consider the process that brought the case back to the Court of Appeals.  One might ask why, if the Court was certain to allow the delayed appeal, it did not simply address the merits of the case last year?  I could wax eloquent on the need to follow proper procedure or simply observe that “this is how the statute requires it to be done,” but the truth is there is no real reason why the appellate Courts couldn’t do this in criminal cases where the appellant is at no fault for his attorney’s error — except that this would then remove any incentive for the attorney to get it right — and with 20-25% of all appeals still being dismissed on procedural grounds, removing incentives to do the job right is not the direction to go.

Attorneys who make procedural errors in criminal appeals are subject to “attorney in error” reports from the appellate courts to the State Bar.  Depending on the severity of the errors and their frequency — and, yes, there are many repeat offenders — these reports can result in disciplinary action up to and including revocation of the attorney’s license.  But even with this potential consequence, the errors continue.

Is this “fair” to the defendant, especially if the attorney is court-appointed and, therefore, not really of the defendant’s choosing?  No, of course it isn’t. Even if he is out on bond pending the appeal, the defendant still has the anxiety of the continuing process and uncertainty about his future.  But the alternative would be equally unfair in that it is reasonable to assume that allowing a procedurally defective appeal might frequently result in the defendant having an obviously slack attorney representing him on the merits — after all, if the attorney can’t follow the rules of procedure to perfect the appeal, how likely is it that he did a good job on the merit argument?

This brings us to the appeal of Anthony Andre’s Mackey v. Commonwealth of Virginia. Mackey was indicted under Code § 18.2-374.3(C), which prohibits the use of a communications system to solicit, with lascivious intent, a person the accused knows or believes to be younger than fifteen years old. At the conclusion of a bench trial in the Circuit Court for Rockbridge County, the trial court found “some ambiguity in the victim’s testimony about whether she told [appellant] she was fifteen or about to be fifteen.” Accordingly, the trial court decided not to convict appellant as charged but instead convicted him of violating Code § 18.2-374.3(D), explaining that it “is the same offense [but] requires an age of at[] least fifteen but younger than eighteen.”

The procedural kerfuffle that led to the first appeal being dismissed resulted from a post-verdict motion arguing that the offense of conviction was not a lesser offense of the indicted offense, or that the change in the charge was otherwise an improper amendment to the original indictment.  The trial court overruled the motion.  If you are interested in the procedural kerfuffle, I refer you back to the earlier post linked above.  For purposes of this post, we can simply proceed to the Court of Appeals’ resolution of the merits.

The Court of Appeals first addresses the Commonwealth’s assertion that the objection was untimely because it was raised in a post-verdict motion.  This is one of those issues that vexes appellate attorneys, especially if they have been around long enough to remember when preservation by a post-verdict motion was generally considered sufficient for any issues arising, as this one did, after the presentation of the all the evidence and summations.  If the court had convicted Mackey for the original charge and the post-verdict motion had been to challenge whether the evidence showed that the victim was under 15, that objection would undoubtedly have been ruled as not timely.  But here, the Court of Appeals finds that the judge’s decision to change the offense was a “ruling” addressing the lesser included offense to which the motion to reconsider was a timely response.

The Court also finds that Mackey’s argument regarding the improper amendment of the indictment is not barred because there was no ruling on this prior to the verdict.  Rather, it was raised in the post-verdict motion for the first time and addressed by the trial court.  Therefore, it is proper for the appellate court to review whether the trial court erred in not setting aside the verdict on this ground.

The Court first addresses whether the offense of conviction was a lesser included offense of the indicted offense and finds that it was not.  To be a lesser included offense, a crime must have no element different from that of the offense charged.  While it can have fewer than all the elements (for example, battery is a lesser offense of aggravated battery because it has all the same elements except for the “aggravated” level of the offense), it cannot have an element that the other crime does not.  Here, an element of the crime charged was that the victim be under the age of 15, while the crime of conviction required proof the victim was at least 15 but under the age of 18.

If you are scratching your head over how the crime of conviction is not a lesser offense, you need to be aware of the rule of lenity which requires the courts to construe penal statutes strictly against the Commonwealth as written without ignoring any words.  Had the statute simple required proof that the victim was under 18, it would have been a lesser included offense of a statute that required proof that the victim was under 15.  But as worded, the statute requires proof that the victim is at least 15, which is a separate issue of proof.  If the charge is under subsection D and the evidence shows that the victim was 14 and 360 days, the defendant cannot be guilty of that offense.

As to the argument that the trial court improperly amended the charge, the Court of Appeals agrees that trial courts generally have the authority to make the charge conform to the evidence.  But, the Court notes, this authority is not absolute.  Moreover, the trial court must follow specific procedures for amending an indictment, which were not followed here.  Thus, even if the court intended to amend the indictment (and, the Court notes, it never expressly said that it was doing so), the failure to follow the procedure required by statute means that any such error was not harmless.

So, despite the year and a month delay due to the procedural defect in his original appeal, Mr. Mackey gets his day in appellate court and comes away with a reversal and dismissal of the charges against him.  I would not be surprised to see a Commonwealth’s appeal in this case, as it is likely to want a review both of the preservation of the argument and the determination that subsection D is not a lesser included offense.

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