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

Two Published Criminal Case Opinions — One With a Dissent

Updated: Nov 22, 2022

The Court of Appeals of Virginia released two published opinions this week, both from criminal cases.  In Timothy James Suhay v. Commonwealth of Virginia, we get a unanimous decision from Judge Callins, joined by Judge Friedman and “Justice” Russell — of course he was still Judge Russell at the time the case was argued, but he has since been elevated to the Supreme Court of Virginia. Suhay appealed his convictions for three counts of electronic solicitation of a minor, in violation of Code § 18.2-374.3(C). The issue on appeal was whether the circuit court erred in not granting Suhay’s motion for a deferred disposition under Code § 19.2-303.6, which permits a trial court to defer adjudication of guilt for a criminal defendant who has been diagnosed with autism spectrum disorder if the court finds by clear and convincing evidence that the defendant’s criminal conduct was caused by or had a direct and substantial relationship to the disorder.  The court found that Suhay’s solicitation of a minor was not caused by, nor had a direct and substantial relationship to, his autism spectrum disorder and that any error by the circuit court in applying the procedural requirements of Code § 19.2-303.6 was harmless.

The opinion gives us the age of the victim, 11, but not Suhay’s age, but the statute under which he was convicted requires a finding that he was at least 18 at the time of the offense.  In any case, there was no dispute that Suhay had made the communications or was not aware that the victim was a minor. The issue was whether his interactions with her were the result of his diagnosis on the Autism Spectrum.

At Suhay’s sentencing hearing, defense counsel called Dr. Lucy Guarnera, Ph.D., a licensed clinical psychologist who had diagnosed Suhay with Level 1 autism spectrum disorder (“ASD”) as part of a court-ordered psychological evaluation. Dr. Guarnera testified that a person with Level 1 ASD is classified as “requiring support,” that Suhay displayed the two primary symptoms of ASD, which are “persistent deficits in social communication and social interaction” and “restricted, repetitive patterns of behavior, interests, or activities,” that, because Suhay was often teased by his brothers and peers, he would spend more time with younger children who were closer to his development level, that Suhay had “trouble understanding social cues indicating levels of interest in relationships,” that Suhay’s ASD caused him to have difficulties in transitioning to living independently from his parents, that Suhay’s excessive online social media use was typical of a person with ASD, that Suhay’s interactions with S.H. were indicative of his ASD because he immediately thought of her as his girlfriend and “considered their relationship to be more serious and more meaningful than it really was,” and that Suhay’s ASD could have caused him to be unaware of S.H.’s age because “things that would be completely obvious to another person, that could impact on the victim’s age . . . may not be obvious to someone with an autism spectrum disorder like Mr. Suhay.”

Dr. Guarmera conceded on cross-examination that Level 1 ASD is the mildest form of autism.  Suhay had not been previously diagnoses with an ASD or received any mental health care for any of his ASD symptoms until after his current criminal charges. She had stated in her written psychological evaluation of Suhay that “[p]articularly given the weight of the current evidence, that Mr. Suhay was aware of S.H.’s young age early in their interactions.”

The circuit court denied Suhay’s motion for a deferred disposition, stating: “After reviewing the file in its entirety, I do not believe that the underlying mental health issue was the cause or established the direct or substantial relationship between the Autism and the actions.” The court further stated: “I am also taking into consideration the positions of both the Commonwealth and the victim, as the statute requires.”  The court sentenced Suhay to ten years active time.

On appeal, Suhay contended both that the circuit court erred in concluding that his criminal offenses were not substantially related to his autism and further that the court erred in giving consideration to the views of the Commonwealth and the victim on deferral “prematurely” because such consideration did not apply until the court first determined that there was a relationship between the defendant’s disability and the offense.

The Court of Appeals noted that this statute has not previously been reviewed by an appellate court and, thus, began its analysis of the case by construing the statute.  In so doing, the Court agreed with Suhay that the circuit court erred because the statute plainly requires a court to take into consideration the views of the Commonwealth and the victim only if the court first determines that a relationship exists between the defendant’s disability and the offense.  However, such error was harmless here, because the Court concluded that the evidence did not find that there was such a relationship by clear and convincing evidence, and the record did not support a conclusion that the court’s decision on this issue was influenced by it’s consideration of the improper evidence.

Samuel Ellis, Jr. v. Commonwealth of Virginia is a 2-1 decision, Judge AtLee joined by Judge Beales in the majority, and Judge Chaney dissenting.  Ellis does not contest that he was driving on a suspended license, which was the offense of which he was convicted, but rather that he was never properly charged with that offense because the summons which he was issued “was void and could not be amended.”  That summons was issued by a Newport News “law enforcement officer,” who the Court chose not to name, and charged Ellis with “Driving Suspended DUI Related” in violation of “[Virginia Code §] 18.2-272 ([Newport News Ordinance §] 26-8).” On the summons, the officer checked the “city” box, indicating Ellis was charged with a city offense.

The Newport News General District Court convicted Ellis of driving on a suspended license, DUI related. The general district court imposed a $500 fine, with $250 suspended, and it sentenced him to 365 days in jail, with 345 days suspended for a period of one year. As is customary, the general district court’s conviction order was written on the left and bottom portions of the summons. Naturally, we do not know what the evidence was in the General District Court, as it is a court not of record.  Ellis appealed his conviction de novo to the Circuit Court of the City of Newport News.

Ellis entered into a written plea agreement. The plea agreement stated that Ellis was charged with “one count of Driving under Suspension: Failure to Maintain Insurance, a Misdemeanor, in violation of § 46.2-302 of the Code of Virginia.” Under the agreement, Ellis pleaded guilty to the charge, and the Commonwealth agreed that the proper disposition was 180 days of confinement with all 180 days suspended for one year, conditioned on Ellis’s good behavior and payment of court costs.  This was a better deal than Ellis got in the district court, which fined him $500 and sentenced him to 365 days in jail with 20 to serve (10 with good time credit). In accepting the plea, the circuit court’s order reflected that Ellis had initially been charged with driving on a suspended license, DUI related, and that he was pleading “[g]uilty to [an a]mended [c]harge” under Code § 46.2-302, for driving on a suspended license, insurance related.

Now things get interesting.  Normally a guilty plea cannot be appealed except on very narrow grounds.  Additionally, Rule 1:1 bars a circuit court from taking any action, other than to superintend its enforcement, on a judgment more than 21 days after its entry.  And Ellis did not do anything for 25 days.  However, what he did on that 25th day was to file a motion asserting that the whole process on the summons was void ab initio — a claim that can be asserted any time (as opposed to an assertion that a judgment is merely voidable).

So, why did Ellis think the summons was and always had been void?  Well, he said, the summons charged him with a violation of the city ordinance for driving suspended/DUI, but the specific ordinance doesn’t incorporate Title 18.2 of the Virginia Code, Only Title 46.2, meaning that charging Ellis with a violation of a criminal statute under the ordinance was an ultra vires act by the local government under the Dillon Rule.  If the ordinance was of no effect, so to would a summons based on the ordenance.  Q.E.D. Ah, I hear you say, but Ellis was convicted of violating the ordinance because the summons was amended to charge the state offense of Code § 46.2-302!  No, replied Ellis (anticipating the objection), because you cannot amend a void summons to may it valid.

The circuit court didn’t buy it, and neither did the majority of the Court of Appeals panel. The majority first notes that the concept of a process being “void ab initio” applies to actions by a court, not actions of a litigant. So an improperly drafted summons, while is may be defective or based on a defective legislative action, is not “void ab initio.” Thus, the question is whether the defect in this warrant was such that the judgment rendered on a proceeding under the warrant was void ab initio.  Where the defect in the charging instrument is not raised until after the judgment is rendered, it must be show that the defect in the instrument “so defective as to be in violation of the Constitution,” that is, it must offend procedural due process. To avoid constitutional defectiveness, a charging document must give an accused “notice of the nature and character of the accusations against him so that he can prepare an adequate defense.”

The majority finds that the defect in the warrant was simply a misstatement of the proper incorporating ordinance.  It turns out that Title 18.2 is incorporated in the Newport News Ordinances, just not by § 26-8.  The correct ordinance is § 26-72, which the unnamed officer should have written on the warrant.  In any case, the Court finds that the error in question did not deprive Ellis of notice of the nature and character of the accusations against him.”

Judge Chaney dissents, but not because she agrees with Ellis about the summons being void in the circuit court.  Rather, in Judge Chaney’s view, the problem is that the district court never acquired jurisdiction over the case because the warrant failed to charge Ellis with a violation of a city ordinance. In her view, Judge Chaney does not consider whether the summons was so defective as to deprive Ellis of proper notice, but rather it simply failed to charge him with any crime. Likewise, she doesn’t think that this is somehow cured by the de novo appeal to the circuit court where the amendment to the state offense occured.

The principal disagreement between the majority and the dissent is over the application of Amin v. Cnty. of Henrico, 63 Va. App. 203, 209 (2014). This case.  Amin stands for the principle that a local ordinance is ultra vires if it fails to incorporate the concurrent provision of the state code, thus a summons charging a local offense does not charge any offense.  The majority distinguish Amin on the ground that in that case there was no other local ordinance that would have incorporated the offense, whereas here the officer merely “misrecited” the ordinance.  But Judge Chaney is not going to let Officer Unnamed off so easy.  The summons failed to charge a violation of the local ordinance, therefore there was no charge over which the district court could exercise its jurisdiction and, thus, no valid judgment from which an appeal de novo could arise.

I am going to say that this case is likely destined for further review, either en banc or in the Supreme Court.  I say this because I find myself in sympathy with both views expressed by the Court.  On balance, I don’t like sloppy police work, but I also don’t like defendants who enter into plea agreements then “suddenly” discover that there’s a problem with the procedure that preceded the agreement.  I am going to assume that Ellis counsel simply had an epiphany on the 24th day after the judgment was entered and not that this was a calculated effort to avoid the Commonwealth seeking to reopen the case within the 21-day-rule.  But one has to wonder just how it came about that the defect in the summons went unnoticed until then. It’s unlikely that it was noted in preparation for an appeal, because, as indicated above, appeals from guilty pleas are extremely narrow and limited.

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