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

The Court of Appeals issued eight published opinions on February 6, 2024 -- seven from criminal cases.

As there was only one civil case decided February 6, 2024, let's get to it first. Pui Ho v. Ebne Rahman, et al. (February 6, 2024) involves the adverse possession rule, which requires there to be 15 continuous years of adverse possession of the property before a claim can be filed. In this case, Ho was the party claiming adverse possession to a trip of land between the actual property line and an existing fence. Ho acquired the property in 2005.

In 2010, Rahman purchased an adjoining property. In 2021, Rahman tore down the fence and removed trees that had previously been on Ho's side of the fence, but within the boundary of Rahman's property. Ho sought a judgment for adverse possession of the disputed strip. The circuit court dismissed, finding that the possession was adverse to Rahman for only 11 years, and granted Rahman's demurrer.

Anyone who remembers first year property (assuming you went to law school) just said, "Wait a minute, adverse possession runs against the property, not the owner." And that is exactly right. I am guessing that Rahman's attorney realized that too after the appeal was filed and therefore tried to convince the Court of Appeals that the issue was procedurally barred.

The Court of Appeals, Judge Huff, Joined by Judges Athey and Causey, find that because the issue was decided on a single, narrow point, it was not necessary for Ho to make a more specific objection to the final order. Personally, I think that given the case was decided on demurrer, preservation was sufficiently established by the complaint, but never mind. Judge Huff goes on to give a nice summary of the law of adverse possession. Given the number of cases cited from 100 or more years ago, it does beg the question of how the trial judge ran so far off the mark on this basic principle of property law.

Now on to the criminal cases . . .

We will start by not summarizing Katie Orndoff v. Commonwealth of Virginia (February 6, 2024) because the appeal, which was decided on June 6 of last year and then granted a rehearing en banc was decided by an evenly divided court, which means it is affirmed without an opinion. The original decision was reversed on a 2-1 opinion -- and that decision was greatly praised by many who were aghast at the facts of the case. Orndorff was a victim of a domestic assault who was testifying in the trial of her assailant when the judge suspected that she had fortified herself with some form of adult recreational courage. Orndorff admitted to having smoked marijuana to calm her nerves. The judge immediately held her in contempt. In my original summary, I found that the dissent was most likely right on the law in finding that the judge's action, while highly questionable from a humanitarian and public relations standpoint, was not an abuse of discretion.

The Judges who agreed with the dissent were Chief Judge Decker, Judges Beales, O’Brien, AtLee, Malveaux, Athey, Fulton, and White. The judges supporting the view of the majority in the panel were Judges Huff, Ortiz, Causey, Friedman, Chaney, Raphael, Lorish, and Callins. That's 8 to 8. So who's missing? It's Judge Humphreys, who retired at the end of 2023. The en banc was argued at the end of January, and Judge Frucci did not join the Court until March 16.

Rhoda Faye Welch v. Commonwealth of Virginia (February 6, 2024) challenged her conviction for petty larceny of a computer tablet because she "genuinely believed" it was lost or abandoned property which she could claim under a "finders, keepers; losers, weepers" . . . uh . . . claim-of-right theory.

The tablet was "unattended" near the soda fountain of a gas station convenience store. Welch noticed the tablet, examined it, then replaced it where it had been resting. After walking around the store a while, she returned to the soda fountain, covered it with some napkins, placed her intended purchases on top of the napkins, paid for these items and exited the store. She did not ask about or inform any employee that she had found an "abandoned" tablet. The tablet was, in fact, the property of the store and used by its employees. Welch was later identified from security footage later that day.

The circuit court wasn't buying the "abandoned property" argument and neither did the Court of Appeals. Judge Friedman, joined by Judges Humphreys and White, note first that Welsh's actions are not consistent with her claim that she had a "genuine" belief that the tablet was abandoned. Specifically, her covering the tablet with napkins and failing to make any inquiry as to ownership or if the store had a lost and found. In any case, the Court goes on to not that "claim-of-right" does not apply where the true owner can be easily ascertained or where the property is found on the premises of another who is presumed to act as a bailee for the true owner who is likely to return there to seek the property. In other words, to quote that great sage, Dora, "Swiper, No Swiping!"

George Juan Walker v. Commonwealth of Virginia (February 6, 2024) involves a carjacking. The issue is whether the evidence proved that Walker was the perpetrator of the initial taking. The facts are pretty straight-forward. The victim was knocked down in a bank parking lot by someone who then drove away with her SUV . . . with the handicap ramp fully extended. Walker was spotted driving an SUV with its handicap ramp fully extended a short time later. he fled from police, crashed the SUV, and was apprehended. The victim's valuables, including cash she had just withdrawn for the bank, were found in the front passenger seat.

What seems like an open and shut case to most folks did not appear to be so to defense counsel. The victim, you see, couldn't identify Walker because she was assaulted from behind. Thus, the defense reasoned, it was possible that the actual carjacker abandoned the vehicle when he (or she) could not figure out how to retract the ramp and Walker just happened upon the abandoned vehicle and took it under a claim-of-right.

OK, so maybe the defense didn't try to argue claim of right, but it did assert that there was a reasonable theory that Walker was not the assailant, which negated an element of the carjacking charge. The jury and the circuit court didn't think so and neither does the Court of Appeals. Judge Raphael, joined by Judge Malveaux and Senior Judge Petty, first have to address an argument presented by the Commonwealth that Walker's possession of the vehicle permitted the court to infer his guilty under the "larceny inference" that possession of recently stolen property was taken by the person in possession. The Court rejects this argument because while larceny is an element of carjacking, the crime itself is a crime against the person, not the vehicle. One carjacks a car from someone.

Nonetheless, the evidence was plainly sufficient to allow the reasonable inference that Walker was the assailant. First, the short period of time between the assault and his capture is contrary to the defense theory that the "real" perpetrator had time to abandon the vehcile and for Walker to discover it. Additionally, if there car had been taken by someone else who then abandoned it, a trier of fact could infer that this person would have taken the valuables within as a consolation for not getting the SUV. Finally, Walker's flight from police suggests a consciousness of guilt, and Walker's suggestion that he may have fled not because he stole the vehicle but because he knew it was probably stolen was an issue for the jury, which obviously found that Walker needed to be reminded "Swiper, no Swiping!"

Lawrence W. Nalls, III v. Commonwealth of Virginia (February 6, 2024) is a probation violation case which address another issue arising under Code § 19.2-306.1, the still relatively new statute that puts limits on the time a trial court can impose for a "technical violation" of probation. Before turning to the issue in this case, let me take a moment to address the use of the terms "technical" and "non-technical" in this context. The statute uses the term "technical" but not "non-technical." Recently, in a hearing a learned trail judge disdained to use the latter term and instead referred to "condition one" violation, referring to the designation of the violation on the probation officer's report. I heartily applaud this terminology, which is more accurate than "non-technical." The other "non-technical" violation is "a violation of a special condition" and I think this phrase should be used as well. Let's do away with "non-technical violations."

This case involves a "hybrid" technical violation which is treated as a second technical violation on a first instance and third technical violation on a second instance. One of this is condition 9, which involves firearms, and the other is condition 11, not remaining in contact with the probation officer, commonly called absconding.

For all technical violations other than 9 or 11, the defendant gets off with a stern warning for a first violation (subject to a slight use of discretion) and then a second violation can result in no more than 14 days of the suspended sentence being imposed. A third technical violation, however, and all bets are off. The judge can require the defendant to serve all the remaining time -- just as if it was a condition one or special condition violation.

With conditions 9 and 11, a first violation can result in 14 days, and a second the full time. But what should happens if there are two prior violations that are neither for conditions 9 or 11 and then a third violation is for, in this case, absconding. Nalls argued that condition 9 and 11 violations were to be treated separately from the other technical violations, so this was his "first" condition 11 violation and he should receive no more than 14 days. The circuit court disagreed, finding that a third technical is a third technical, and the Court of Appeals, Judge Athey joined by Judges Humphreys and Fulton, affirms.

The logic here is undeniable. The 1 strike, 2 strikes, 3 strikes of the statute apply to any technical violation. Condition 9 and 11 violations are still technical violations, its just the nature of the punishment that its different. It doesn't matter whether each prior violation was for the same condition or three different ones. Presumably, this would mean that a condition 9 violation which occurred first punished as a second, would not elevate a second violation of, say, condition 4, to a third technical, because it's still your second technical violation. But once you've had the benefit of two technical violations, your third is your third, regardless of what the first two were.

Konradt Gunter Tatusko v. Commonwealth of Virginia (February 6, 2024) begins with the following observation, which has been stated in this space many times:

Appellate courts have sometimes lamented that “the number of claims raised in an appeal is usually in inverse proportion to their merit.” Commonwealth v. Ellis, 626 A.2d 1137, 1140 (Pa. 1993). As Judge Kethledge observed, “When a party comes to us with nine grounds for reversing the [trial] court, that usually means there are none.” Fifth Third Mortg. Co. v. Chi. Title Ins., 692 F.3d 507, 509 (6th Cir. 2012). Those predictions have been borne out here. Konradt Tatusko assigns 18 errors to his reckless-driving conviction. Finding that none has merit, we affirm the judgment below.

It should be noted that the Court, Judge Raphael joined by Judge Malveaux and Senior Judge Petty, manage to deal with all 18 in less than 10 pages, which is an admirable achievement in itself. It is also an indication of how weak most of the arguments were. Given that this is reckless by speed and the speed was 100 in a 60 (though ultimately, the Commonwealth opted to proceed on unspecified reckless by speed), its really hard to imagine that any of these arguments were going to give the court pause.

The Court referred to the volume of assignments error as a "blunderbuss" approach -- implying that it was not only scattershot but antiquated. The Court does not spell out each of the 18 errors, dividing them into three groups and finding that under the appropriate standard of review for each the judgment was proper.

In the January 30, 2024 opinions there was another reckless driving appeal, and I noted that it was unusual for the Court to feel that a misdemeanor appeal affirmed on the standard of review should be published. I would suggest that this case was published not because of the nature of the offense or the import of the holding, but to publicly admonish the attorney who wasted the Court's time and to remind others of "the importance of winnowing out weaker arguments on appeal."

Dustin Lee Hamilton v. Commonwealth of Virginia (February 6, 2024) is another probation revocation appeal, but it does not require an application of Code § 19.2-306.1. The original conviction was in 2006 and Hamilton racked up multiple violations long before the new statute was enacted. He also committed a new criminal offense and received additional suspended time from that conviction. He was back before the circuit court for a yet another violation in 2021 and was facing the full wrath of the court on both the 2006 and later convictions. Except Hamilton argued that he really wasn't proper;y before the court, because in his mind a 2021 amendment to Code § 19.2-306 deprived the circuit court of jurisdiction.

OK, so I misled you by saying that this appeal did not involve Code § 19.2-306.1, but I never said that it did not involve the 2021 reform of probation violation. Code § 19.2-306, as revised in 2021, has been the subject of almost as much appellate consternation as Code § 19.2-306.1. In this case, the issue is whether the circuit court lost jurisdiction to reimpose any of the suspended time from the 2006 conviction because the maximum sentence Hamilton could have received for any of the individual convictions was 10 years and Code § 19.2-306 specifies that "where a court suspends the imposition or execution of a sentence, it may fix the period of suspension for up to the statutory maximum period for which the defendant might originally have been sentenced to be imprisoned." In 2021, the statute was amended to specify that the maximum time of suspension was to run from the date of the conviction. The suspended time in 2006 was subject to an indefinite period of probation, so Hamilton argued we was free from revocation of the unserved time of the 2006 conviction as of 2016.

The circuit court did not see it that way. It viewed the "maximum time" Hamilton could have been sentenced to was 30 years, not 10, because there were three separate convictions. The Court of Appeals, Judge Beales, joined by Chief Judge Decker and Judge Raphael, agree. To be frank, that is how I have always understood the statute becuase Hamilton's reading would require adding language to the effect of "the longest period of the crimes of conviction," and courts don't add language to statutes.

Hamilton wins a small victory, however. In the latest revocation, the circuit court added a new condition of good behavior for 20 years. The Court of Appeals notes that this new condition does extend the probation beyond the maximum period for which he might have been sentenced in 2006 (and also for the new conviction in 2014). This was not allowed, so the case is remanded for correction of that part of the order.

James David Watwood v. Commonwealth of Virginia (February 6, 2024) is not really a criminal case, but a collateral attack on a criminal conviction from 2017. Watwood was convicted of multiple sexual assualt crimes and sentenced to 88 years' imprisonment. This meant that Watwood had a lot of time of his hands to study the law and exchange notes with similarly studious prisoners. At some point, he came across, or more likely heard about, a novel theory which said you could challenge a criminal conviction by asserting that it had been reached through extrinsic fraud on the court and, thus the court lacked jurisdiction to try him.

While it's possible that Watwood came up with this argument on his own, he certainly was the first litigant to do so. Indeed, this same argument is used not only to attack criminal convictions, but is very popular with dissatisfied civil litigants too. The problem is that extrinsic fraud on the court is not what most of those who bring such claims seem to think it is. Generally, the argument runs something like this: Someone lied at some point during the trial, thus the court was defrauded and the conviction (or civil judgment) is void. Some arguments come closer to the mark by asserting that the fibbage occurred during the police investigation or by some proceeding that denied the defendant a fair trial.

It was this latter approach that Watwood took, arguing that when the Commonwealth nolle prossed the warrants on which he had been arrested, they did so without good cause and to deny him a preliminary hearing, so that the direct indictments were the product of intrinsic fraud and, thus, void. As I said, perhaps Watwood came up with this on his own, but this argument has been raised before . . . and failed repeatedly, something that the jailhouse lawyers who share their theories usually fail to mention.

The argument not only failed in the circuit court when one step further by imposing a ban on Watwood filing any future pro se claims "of any kind concerning this matter, for any other matter, or any future litigation not yet commenced." To be clear, this was not a pre-filing injunction requiring him to get permission to file, it was an absolute ban on any future pro se filings.

On appeal, the Court, Judge Malveaux joined by Judge Raphael and Senior Judge Petty, have no problem agreeing that the intrinsic fraud claim was frivolous and not cognizable under these facts. However, the Court was not able to say the same about the ban on pro se filings. When a court closes the courthouse door on a litigant for filing a frivolous pleading, it should do so only when there is no lesser sanction that will achieve the desired result, and even then, an injunction against filing new actions must be narrowly tailored. Plainly, a blanket ban on any new pro se actions was not narrowly tailored.

Pre-filing injunctions should be used sparingly in civil cases, and even less frequently in criminal ones. While the Court did nit say so expressly, I got the feeling that that even a narrowly tailored pre-filing injunction might not pass muster in this case. The opinion did not indicate whether Watwood was a "serial litigant" against whom a pre-filing injunction might be a reasonable sanction after repeated frivilous claims, but a quick look at the VCCI and ACMS databases showed that he has not filed any other cases or appeals apart from the original appeal of his convictions.

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