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

Two Criminal Appeals from the Court of Appeals

Highland County is Virginia's least populous county, with around 2,200 residents. But even in a small community, crime is not unknown. The appeal of Robert Marshall Cornelius v. Commonwealth of Virginia (February 13, 2022) involves the tragic incident in which a 14-year-old was convicted of second-degree murder of his grandmother. Though the facts of the case suggested that the killing may have been accidental as he maintained, Cornelius agreed to enter an Alford plea to the murder charge. Unlike a "bare plea," an Alford plea preserves issues for appeal that would otherwise be waived and alos preserves the right to maintain actual innocence. As a juvenile tried as an adult, Cornelius was entitled to serve his sentence in a facility of the Department of Juvenile Justice and to have regular reviews of his status at which the court could release him without conditions, order his continued treatment at the DJJ, admit Cornelius to parole, or order his transfer to the DOC to serve the balance of his sentence as an adult.

Cornelius sought at a review hearing in 2023 to establish that his progress to rehabilitation while in the DJJ warranted a reconsideration of the transfer order and also asked the circuit court to admit him to parole. The circuit denied the requests and ordered that he be transferred to the DOC. Cornelius appealed.

On appeal, "the parties [were] sharply divided on the applicable standard of review for the trial court’s judgment made pursuant to Code § 16.1-285.2." Cornelius asserted that because the evidence received concerning his rehabilitation was uncontroverted, the Court of Appeals should apply a de novo standard. The Commonwealth contended that the issue was one committed to the circuit courts discretion and should be reviewed for abuse of discretion.

The Court of Appeals, Judge Huff joined by Judges Malveaux and Chaney, found that the abuse of discretion standard of review was the proper one. This virtually assures affirmance of the decision, and that is the case here.

As an editorial comment, I would note that Cornelius had an extraordinary team of attorneys briefing and arguing his case, and the Commonwealth had one of it most capable appellate advocates. The recording of the oral argument is available on the Court's website.

A motion for nolle prosqui is a request by the Commonwealth to dismiss a criminal indictment, in most cases without prejudice to refiling a new criminal charge for the same offense. In principle, the Commonwealth must shows "good cause" for doing so. In practice, the circuit courts almost never require the prosecution to give any reason, let alone actually testing whether the reason is a good one. What's more, an order granting a "nol pros" is not subject to appeal, but can only be challenged if (when) the new charge is brought.

Adam Marcus Griffin v. Commonwealth of Virginia (February 13, 2024) is an appeal from a case where the Commonwealth nol prossed three indictments then charged the defendant again that same day. Griffin argued that the Commonwealth had not demonstrated good cause of dismissing the indictments and, thus, the new indictments were improper.

Now, there is a wrinkle to this case that does not occur in most such cases -- immediately prior to the nol pros motion, Griffin had moved the circuit court to dismiss the indictments without prejudice, asserting that they had been improperly rendered by a mutil-jurisdictional grand jury. Although the court denied the motion, the Commonwealth, while maintaining that the indictments were proper, nonetheless sought to dismiss them "in an abundance of caution." The new indictments were entered by the regular grand jury for the jurisdiction. The Court of Appeals, Judges Beales joined by Judges Friedman and Callins, affirm the judgment of the circuit court finding that the granting of the nol pros was not without good cause.

There was an additional issue of venue raised in the appeal, which is somewhat ironic given that Griffin's original assertion that the indictments had been improperly brought by a multi-jurisdiction. The venue issue involves the solicitation of a murder of a witness against Griffin while he was in jail in neighboring jurisdiction. Griffin argued that the solicitation was complete once it was first raised in the jail, but the Court of Appeals found that the evidence in the light most favorable to the Commonwealth showed that some aspects of the solicitation occurred in the jurisdiction where the charge brought.

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