This week we have three published opinions from the Court of Appeals – one from a criminal revocation case and two from the administrative law docket. Before we get to the new opinions however, an word about Osman v. Commonwealth. The original opinion was issued in November of 2022 and a panel rehearing requested by the Commonwealth was granted. The panel reissued its opinion on February 14, 2023 clarifying, but not altering its affirmed in part, reversed in part decision. The case has now been appealed to the Supreme Court of Virginia by Osman and the Commonwealth. While I expected that Commonwealth to seek review, I am somewhat surprised that Osman did as well. I suppose in for a penny in for a pound.
Another case on its way to the 9th Street side of Franklin Street is Aundrey (not Audrey, as in the Court of Appeals list of cases appealed to the Supreme Court) Hubbard v. Scott Jenkins, Sheriff. This case also decided in February had no majority opinion, but three separate opinions, and seems destined for a grant in the high court. One reason it might be ripe for review is that the same panel decided Karey Burkholder and Douglas Thompson, Jr. v. Palisades Park Owners Association, Inc. on the same day by a 2-1 majority that, in my view was logicall inconsistent with the result in Aundrey. Burkholder has likewise been appealed to the Supreme Court.
Rounding out the list of cases appealed to the Supreme Court are Daniel Rock v. Commonwealth and Stephen Moncrieffe v. Adam J. Deno, d/b/a Law Office of Adam Deno, both decided on January 24, 2023. I suspect that Rock would appeal to the Supreme Court, but Moncrieffe is a bit of a surprise.
Criminal Law
Edgar Alexander Diaz-Urrutia v. Commonwealth of Virginia involves a novel argument concerning the nature of a “technical” violation of probation where the defendant is required to “be of good behavior” and his conduct would constitute a breach of that requirement, but also constitutes a breach of a specific provision of the suspended sentence. Of course, this is just the latest in a serious of appeals address the revised procedures for revocation of suspended sentences under Code § 19.2-306.1.
In this case, back in 2016 Diaz-Urrutia was required to be of good behavior following his release from prison on a charge of rape sometime around 2036. In addition to the 20 years for rape, Diaz-Urrutia was sentenced to 10 years for abduction, but the court suspended that time. In 2019, the Commonwealth brought a show cause alleging that Diaz-Urrutia had violated a specific provision of the suspended sentence by contact the victim.
In the circuit court, Diaz-Urrutia contended that while he had violated that specific provision, it also constituted a violation of the requirement to be of good behavior and, thus, was merely a first technical violation for which the court could not impose any active time of the suspended sentence. The circuit court was having none of this, and added two years to Diaz-Urrutia’s sentence.
The Court of Appeals, Judge Humphreys joined by judges Huff and AtLee, affirms wholeheartedly. It should be fairly obvious that a specific provision of a suspended sentence, even if it might otherwise constitute of minor violation, is imposed because the circuit court wants to “make damn sure” that the defendant doesn’t engage in the behavior. The Court of Appeals hold that the basis of a revocation of a suspended sentence is a good conduct violation only if the sole basis for the revocation is the defendant’s violation of the condition that he remain of good behavior.
Administrative Law
I have never made a secret of my disinterest for administrative law. PharmaCann Virginia, LLC v. Virginia Board of Pharmacy does not improve that view at all even though the subject matter is marijuana “pharming.” PharmaCann was given a provisional approval for a medical cannabis cultivation facility (you know, a “pit farm”). Provision approval requires that applicant to meet certain deadlines within 12 months and Pharacann missed that deadline, and in fact had not even started construction of its facility. The Pharmacy Board denied Pharmacann’s motion for an extension of time and revoked the provisional license. It should come as no surprise that the circuit court did not find the Board’s action to be violative of any due process right or otherwise to be arbitrary. The Court of Appeals, Judge Lorish joined by Judges Cahney and Athey, affirm.
Abu Jalloh v. S. W. Rodgers and Arch Insurance Company comes direct from the Workers’ Compensation Commission. It involves an issue of statutory interpretation as to whether Code § 65.2-603 is satisfied when the employer makes a “good faith effort” to provide the claimant with a panel of physicians to select for his treatment. The Commission found that S.W. Rodgers and its carrier made a good faith effort, and therefore Jalloh’s choice a different physician was not authorized. The Court of Appeals, Chief Judge Decker joined by Judges AtLee and Friedman, disagree that a good faith effort is sufficient to meet the employer’s obligation under the statute.
The facts showed that Jalloh was clearly resistant to seeing a physician selected by his employer. However, it was not disputed that the employer never provided Jalloh with a panel list of physicians to select a treating doctor. In effect, the employer argued that Jalloh’s resistance justified its failure to provide him with the list. The deputy commissioner review Jalloh’s claim disagreed, but the Commission, in a 2-1 decision, reversed, accept the view that a “good faith effort” was sufficient to satisfy the requirements of the statute.
The Court of Appeals reverses the judgment of the Commission. While “not unsympathetic to the position taken here by a majority of the Commission. Employees should not be encouraged to engage in obstructionist behavior or be rewarded for doing so. However, the injured employee was entitled to appropriate medical care, and the law governing the requirements for providing a panel of physicians is clear.” Had the General Assembly intended for the timely provision of a panel list to be subject to a good faith effort, it could have said so – it did not.
While I agree with the result, for the statute is plain that the timely provision of a panel list is required, I wonder what the result would have been if the employer had taken just slightly more effort to get the list Jalloh. A representative of the company visited his home, spoke to his wife, and spoke to him on the phone, but did not leave the list with the wife. Thus, it was clear that Jollah never received the list.
But what if the representative had left the list with the wife, but Jollah told her to throw it away? Could Jollah still claim that he had not “received” the list? What if the list was mailed to Jollah by registered mail, but he returned it unopened? I suppose these are questions for another day.