The Court of Appeals issues three opinions today and all, to one degree or another, deal with extraordinary powers of judges, fiduciaries, and the Commonwealth respectively. Let's start with Mohammad Hussein Abanda v. Commonwealth of Virginia, a published order from Judges O'Brien, Malveaux and Raphael. It's an order because it is a dismissal upon a finding that the Circuit Court of the City of Richmond had no jurisdiction to consider a motion to modify a sentence under Code § 19.2-303. This statute provides that a circuit court has the power to modify a felony criminal sentence "at any time before the person is transferred to the Department, or within 60 days of such transfer." Abanda filed a motion to modify his sentence 59 days after he was transferred to the DOC.
The circuit court ordered that he be transferred back to Richmond for a hearing. The order says this occurred on November 22, 2023, but from subsequent events it seems clear that this is a scrivener's error. We know this because the court denied the motion on December 8, 2022 and VCCI confirms that the hearing was in November 2022. Abanda chose to appeal this judgment and the Commonwealth, which had argued in the circuit court that Code § 19.2-303 did not give the court authority to consider the motion more than 60 days after the transfer to DOC even though the court received the motion before that deadline, moved to dismiss on that ground.
Now this raises to interesting points. The first is that the Commonwealth correctly raised this as a motion to dismiss and not as a response to the merits of the appeal. Here's why. When a trial court is alleged to have lacked jurisdiction to enter an order, the court considering an appeal of an order entered without jurisdiction is likewise lacking in jurisdiction to consider the merits of the judgment rendered. We know that "jurisdiction is a word of many, too many meanings." This case demonstrates why it is necessary to understand each of these meanings.
Both the circuit court and the Court of Appeals had subject matter jurisdiction over the Code § 19.2-303 motion and the appeal of its denial. They also had personal jurisdiction over Abanda. What the circuit court lacked, as the Court of Appeals rules in its order, was active jurisdiction over this specific case. This is so because Code § 19.2-303 sets a time limit on when the circuit court can modify a sentence, not a limit on the filing of a motion. The motion, though timely filed, was not timely ruled upon. As the circuit court had no jurisdiction to consider the motion, the Court of Appeals has not jurisdiction to consider the merits of the judgment. But it does jurisdiction to consider the question of the circuit court's jurisdiction (or, rather, the lack thereof). See? Too many meanings . . .
The second point is that Abanda might have been able to avoid this Catch-22. Code § 19.2-319 provides that any person convicted of a felony who intends to appeal that judgment may request a suspension of the execution of the sentence and "the circuit court shall postpone the execution of such sentence for such time as it may deem proper." Now many people confuse or conflate the suspension of the execution of the sentence with the right to seek a bond pending appeal, but they are very different things.
To begin with, while in most cases Code § 19.2-319 provides that there is a presumption in favor of an appeal bond, it is only mandatory for misdemeanors (sentences for which are always served in a local or regional jail). In felony cases, the presumption is rebuttable (and does not apply at all to certain violent felonies). When the court grants a bond pending appeal, the defendant may be released from custody so long as he meets and adheres to the condition of the bond.
On the other hand, the court shall suspend the execution of the sentence in all felony cases, though it retains the discretion as to for how long the suspension will last. But suspension of execution of the sentence does not permit the defendant to be released if he is not also granted a bond. So what is the purpose of the suspension then? Simply put, it keeps the defendant from being transferred to the custody of the Department of Corrections.
Why would a court or defendant want to deprive the DOC of the defendant's company? Well, there are several possibilities. The court may, for example, want the defendant to complete a rehabilitation program and then reconsider the sentence. The defendant may want to remain in a local jail near to family rather than be transferred to an unknown part of the Commonwealth. As a practical matter, however, the real reason the sentence shall be suspended is to give the court time to rule on the bond motion. In theory, the DOC could take the defendant immediately after the sentencing, and the judge would be without jurisdiction to grant bond to a person not under her direct authority. In practice, this never happens and many shorter felony sentences are served in local and regional jails.
One more point about Code § 19.2-319. While it speaks of "suspending" the execution of a felony sentence, with respect to misdemeanors and "any case of judgment for any civil or criminal contempt," the statute uses the term "postpone." This may seem a distinction without a difference, but in fact it the legislature chose the term carefully. Here, "postponing" a sentence means that the defendant will not be taken into custody immediately, but can be allowed to remain free "for such time and on such terms as [the court] deems proper." In effect, this allows the Court to allow for "delayed reporting" even if the defendant will not appeal the conviction (and thus would not be permitted an "appeal bond"). In theory, this option is not available to those convicted of felonies (but some judges will allow delayed reporting).
Our next discussion of "power" is in Connie A. Kosmann, Putative Trustee of the Brown Living Trust v. Edith Brown, by her Agent Nadine Seamans. In Abanda we were discussion the power of the court; here we are interested in the power given to fiduciaries in written documents. The two documents are, as the name of the case implies, a trust and a power-of-attorney. The settlor of the trust was Edith Brown and she and her daughter, Kimberly Monroe, were to serves as co-trustees; Seamans, Brown's niece, was named as a successor trustee and also was made an agent under a power-of-attorney executed at the same time as the trust, which also named Monroe as her agent. What you may have noticed that thus far, Kosmann does not appear to be in the picture, but stay tuned...
Four years after the trust was created, Monroe, acting in her capacity as agent, amended the trust to 1) make it irrevocable, 2) to name herself and Kosmann as co-trustees, 3) provide Seamans with a specific fixed distribution, and 3) provide that if Monroe were to predecease her mother, her share (essentially the balance of the trust less a small specific distribution) was to go to the then "acting" trustee, presumably meaning Kosmann.
At the time these changes were made, Brown was in a memory care unit of a nursing home and the bills were being paid from the trust and Monroe had been diagnosed with terminal brain cancer. Monroe died about six months later, leaving Kosmann as the sole trustee. Kosmann by her counsel instructed the nursing home to stop billing the trust, indicating that Seamans would thereafter be responsible for the cost of her aunt's care.
Seamans, acting as agent under the power-of-attorney, brought the present action to challenge the changes made to the trust by Monroe, asserting that they were in violation of a provision in the trust as originally executed. She sought removal of Kosmann as trustee, an accounting and control of the trust as the successor trustee under the original form of the trust.
The circuit court found that Monroe's actions violated a provision of the trust prohibiting alteration of the trust by an exercise of a "general power of appointment." As defined by Code § 64.2-701 a “[g]eneral power of appointment” to “mean[] a power of appointment exercisable in favor of a powerholder, the powerholder’s estate, a creditor of the powerholder, or a creditor of the powerholder’s estate.” Kosmann appealed.
The Court of Appeals, Judge Callins, joined by Judges Athey and Causey, affirm the judgment. The opinion has an excellent discussion of the concept of a general power of appointment, but it is not really necessary to expound up that. It will likely be cited in any future cases involving that concept. What should be expounded on is what is not discussed in the opinion. At no point does the Court express any view, even obliquely, as to which of the parties was "in the right."
Undoubtedly, in reading this summary, you may have formed an opinion as to what the "real story" was here and decided that either Kosmann or Seamans was acting noblely and the other with some ulterior motive. That may be true -- or it simply could be that both women were acting in what they eached viewed to be the proper way with respect to their relationship to Brown and Monroe respectivelty. We don't know and we don't need to know. As the judges of the Court of Appeals and justices of the Supreme Court often have to remind counsel during oral argument, the appellate court "is not a jury" and is not really interested in the pathos of the case. Appeals are about applying the law, and in this case where the relevant facts are contained in writtend documents, the court can apply that law dispassionately without reference to the circumstances.
Roger E. McMillion, a/k/a Roger E. McMillian v. Commonwealth of Virginia involves a power that is given to the Commonwealth by Code § 19.2-386.1 et seq. The "forfietures act" permits the Commonwealtht of seek "any property is forfeited to the Commonwealth by reason of the violation of any law." Forfeiture is intended to deprive a criminal of the benefits of his crime. Of late, this process have become highly controversial in some states (including one that proudly displays a Lone Star on its flag, but will otherwise remain nameless) where forfieture has been used to enrich local governments by requiring defendants to agree not to contest the seizing of their property in exhange for having the criminal charges dismissed.
McMillian was charged with possession of a controlled substance and the Commonwealth moved to seek forfieture of "items used in substantial connection to a felonious
event involving a Schedule I/II controlled substance." Specifically the "items" were currency totaling $35,293. McMillian, who owned a legitimate business, alleged in an answer to the petition for forfieture that the funds represented proceeds of that business. In fact, he filed six answers, some going into exacting detail as to the source of the funds. But according to the Commonwealth, McMillian was in default.
Now, normally, a party is in default when they fail to file any response to an offensive pleading. But McMillian filed six responses. "Sure," said the Commowealth, "but none of those responses 'clearly set forth (i) the nature of the defendant's claim; (ii) the exact right, title or character of the ownership or interest in the property and the evidence thereof; and (iii) the reason, cause, exemption or defense he may have against the forfeiture of the property' as required by Code § 19.2-386.9, so he really hadn't answered, had he?"
The circuit court agreed that none of McMillan's answers were sufficient to meet the criteria of the statute and entered judgment for the Commonwealth. CHA-CHING! But McMillian appealed and the Court of Appeals, Judge Beales, joined by Chief Judge Decker and Judge Lorish, has snatched back the Commonwealth's payday, at least for now.
The Court notes that the circuit court's ruling raises form over substance. The trial court was, in essence, saying that a party seeking to challenge of forfeiture (which can include creditors, lienholders, coparencers and anyone else asserting a claim in the property in addition to the owner) the answer had to provide evidence of the claim, not merely notice. In making its ruling, the court had noted that McMillan had not provided any exhibits to support his allegations, but in what will undoubtedly be a frequently cited statement for this context and others, the Court of Appeals notes that "[w]hile the use of an exhibit at trial may
assist the finder of fact to determine whether [party] actually has the ownership interest that
he alleges, [the party is] not required to provide everything that he could put on at trial in his
pleadings at this stage of the litigation. Instead, [the party] needed only to provide his own
allegations in response to the . . . pleading – which would then lead to a trial."
The case will be remanded for that trial. I am curious has to how the Commonwealth that $35,293 in cash was related to a charge of simple possession. There is no indication that McMillan was a major dealer of recreational pharmaceuticals, or even a dealer at all. This case is, for me, a little to close to some of those cases in the Lone Star flagged jurisdiction where defendants carrying any amount of cash (often no more than a few hundred dollars) were "given a break" by local cops who wouldn't charge them with some offense (often unspecified) if they would agree to immeditate forfieture.
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