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.
Joshua Stanton v. Virginia Beach - Fire Operations (January 30, 2024) Stanton injured his hip while performing his job as a paramedic and was awarded Workers' Compensation benefits in 2014. He was able to return to duty in 2015, but require hip replacement in 2021. He returned to full duty a few months after the hip replacement, but prior to that time was given light duty. Stanton applied for an additional award of compensation alleging that the hip replacement was due to the injury and constituted a change of condition. The Commission ruled that his claim was time barred by Code § 65.2-708 and the Court of Appeals, Judge Athey, Joined by Judges Humphreys and Huff, affirmed.
Code § 65.2-708 provides that claims for a change in condition from a compensation award must be filed within two years from the last date compensation was paid under a claim. For purposes of determining when compensation was paid, payment for light duty at a full wage is considered compensation.
Stanton contended that because he had been put on light duty after his surgery, this constituted compensation for his prior injury and restarted the limitations period. The problem is that Stanton's interpretation of the statute would allow the limitations period to renew any time an employee was moved back to a light duty position after the original limitations period had expired. The Court noted that in a prior Supreme Court case, Ford Motor Co. v. Gordon, 281 Va. 543 (2011), applying the statute, the employee was returned to light duty within the original limitation period. The Court reasoned that once the initial two-ear period has run, it cannot be revived by a subsequent payment of full pay for light duty work. The Court says in a footnote that made no argument that the surgery he underwent in 2021 was a compensable procedure, so the Court did not address an exception to the two-year limitation period for surgery to "repair or replace a prosthesis or orthosis."
One final point. The limitations period in Code § 65.2-708 is referred to in Gordon and in this case a a "statute of limitations." I would contend that it is actually at "statute of repose." The distinction between the two is not really significant, but statutes of repose typicallt set a time period following which an action or claim cannot be revived, while statutes of limitation typically limit the time before an action can be brought.
Joana Konadu v. Commonwealth of Virginia, January 30, 2024, is an appeal from a conviction for reckless driving, a misdemeanor. The facts, as related by the Court, are pretty frightening and pretty damning:
On the morning of May 20, 2022, members of the Annandale Beautification Committee walked southbound on the sidewalk along Maple Place—a road in Fairfax County. The pedestrians, some wearing reflective vests for visibility, were attending mulch beds and performing other roadside maintenance. Suddenly, a gray 2008 Nissan Altima—driven by Konadu—crossed from its northbound lane across the median, through a bicycle lane, and into the southbound lane of travel before proceeding onto the curb and colliding with the group of pedestrians. The Altima did not brake after the collision. Instead, it drove on—through a parking lot and sign—until coming to a stop off the side of the southbound lanes. The collision injured four members of the Beautification Committee, one of whom later succumbed to her injuries. Several surveillance cameras captured footage of the accident and its aftermath.Now, given the facts, one would think that Konadu would have been happy with just a misdemeanor conviction. Well, yes, but actually no.
See, Konadu didn't thing the accident was her fault because she was swearing to avoid hitting "a man in the middle of the road." There were just two small problems with this claim. First, the surveillance cameras did not show any man in the middle of the road. Second, Konadu's daughter, who was a passenger in the car, testified that her mother was actually leaning down and reach over to retrieve a drink cup that had fallen over and spilled.
Konadu argued at trial and in a post trial motion that the evidence failed to establish that she had the requisite mens rea from reckless driving, which requires something more than simple negligence. The trial court disagreed and convicted her, and the Court of Appeals, Judge Athey, joined by Judge Huff and Causey, affirmed. The problem with Konadu's mens rea argument is that the evidence does not support her asserting that she only momentarily was distracted -- whether by the invisible pedestrian or the spilled drink -- because she traveled a good distance and a fair amount of time without seeming to notice that she was potentially putting, and then actually putting, many people at risk.
Frankly, given that this case is decided under the standard of review of the evidence in the most favorable to the Commonwealth granting to it all reasonable inferences, I am not sure what makes this decision worthy of publication. Perhaps it was to emphasize that a misdemeanor conviction will be given the same level of attention as a more serious one by the Court on those rare occasions when a defendant does see the good result they got by not being charged with more serious offenses.
Fatima Shaw-McDonald v. Eye Consultants of Northern Virginia, P.C., et al. (January 30, 2024) is not really about the underlying medical malpractice claim, but bankruptcy. When a person who has a potential legal claim seeks bankruptcy protection, the claim becomes the "property" of the bankruptcy trustee, and the suit must be brought in the name of the trustee for the benefit of the bankruptcy petitioner's estate. This was decided in Kocher v. Campbell, 282 Va. 113 (2011). But what about a suit that is already pending when the plaintiff files for bankruptcy protection?
Shaw-McDonald filed her malpractice claim for a "botched" eye surgery, then while the suit was pending, sought bankruptcy protection. The defendants argued that she no longer had standing to prosecute and sought dismissal. The trial court stayed the proceedings to await the outcome of the bankruptcy. When the bankruptcy case was ended, and the trustee had not pursued the claim, the trial court granted the motion to dismiss.
The Court of Appeals, Judge Raphael, joined by Judge Causey and Senior Judge Clements, reverse this decision. Because the suit was filed before the bankruptcy, the Court reasoned that this distinguished the case from Kocher, and the court should have permitted the case to go forward after the bankruptcy case ended.
The defendants have filed a notice of appeal in the Supreme Court, and will no doubtedly argue that when the trustee abandoned the claim (rather than intervening or filing a new claim), the case should have ended there. I think there is a fair chance the Justices will want to take a look at this issue.
Your humble correspondent was gratified to have more than one person comment about the dearth of posts in this space over the last seven weeks. In truth, I have more than once intended to get back into the swing of my weekly summarizing and occasional bloviating, but life kept getting in the way. Accordingly, I resolved to begin dealing with the backlog but addressing at least one opinion a day, but even at that rate it shall be April before I am caught up -- and while I have the best intention of doing more, we all are familiar with the infernal paving material that good intentions often become.
Fredericksburg Ambulatory Surgery Center, LLC v. C. Rosser Massey, III, M.D. (January 30, 2024), as you might guess from the title, is a dispute between a medical practice and a former participant therein. The issue is fairly straightforward -- Massey was withdrawing from the practice and sought redemption of his shares. The parties disputed the proper valuation of the shares, and the circuit court entertained a motion for partial summary judgment filed by Massey to adopt his valuation. The shareholder agreement required appraisal of the "whole company" while Massey maintained that the appraisal supported by the practice valued only his shares. He preferred an earlier draft appraisal that valued the practice as a whole, while the practice disputed that the "draft" constituted an appraisal. The court took no evidence other than to review the documents, then ruled that the terms of the agreement were unambiguous and the earlier draft was the only valuation that met those terms.
The Court of Appeals, Judge O'Brien joined by Judges Fulton and Callins, reverse in a short opinion the logic of which is inescapable. Summary judgment is only available where there are no material issues of fact in dispute. Unlike certain pre-trial proceedings where the court takes evidence and decides the issue on its merits, summary judgment can only be granted where the court need not make a judgment of credibility as to the facts. Here, the circuit mistook the issue as being whether the documents, which speak for themselves, were unambiguous. While it is true that no one disputed that the agreement, the appraisal and the draft appraisal were what they purported to be, the medical practice disputed whether the appraisal of shares was not also an "appraisal of the business" and also whether the "draft" was an appraisal at all. Even if the court might have been able to resolve these issues by examining the documents, summary judgment was the appropriate vehicle for doing so. The case is remanded for further proceedings.
Tina C. Rodrigue, M.D., et al. v. Loretta Butts-Franklin (January 30, 2024) again is the sort of title that suggests the nature of the case -- medical malpractice. The underlying issue, however, is one that is common to many cases -- whether the jury should be instructed on a duty to mitigate damages. Typically, there is no duty to mitigate damages proactively. In other words, the injured party is not required to seek out ways of mitigation that are not readily available to her. Although the Court, Judge Raphael joined by Chief Judge Decker and Judge Beales, affirms upon finding that the defendant failed to offer evidence of when and how the patient had an opportunity to mitigate damages and failed to do so and, thus, there was not the "more than a scintilla" of evidence to support the instruction, the opinion is more interesting for its discussion of the difference between the affirmative defense of contributory negligence and the assertion of failure to mitigate.
This discussion is interesting because it notes that the principal legal distinction is that contributory negligence must precede of be concurrent with the injury, while mitigation can occur only after there is an injury. Even more interesting is the observation that while both contrib and FtM are both referred to as "affirmative defenses," only the former must be pleaded in the answer. I would argue that because FtM can be raised within the case without have been raised in the answer, it really shouldn't be called an affirmative defense. Rather, I think it is merely a quantum that is to be considered in the assessment of damages. After all, at least under Virginia's system of fault, contributory negligence is an absolute bar to recovered, where as failure to mitigate merely bars recover to the extent that damages could have been avoid through reasonable efforts.
John B. Russell, Jr. v. Commonwealth of Virginia (January 30, 2024) is a pro se appeal. Mr. Russell was appealing his conviction by nolo contendere plea to a charge of practicing law without a license for which he received a 6 month sentence and $2,500. The conviction happened on September 24, 2021. Russell was represented by counsel, but filed his own motion to vacate the conviction and withdraw his plea sometime between September 24 and October 1. On October 1 the circuit court entered an order suspending the execution of the sentence to December 17, 2021, noting also that Russell's counsel had withdrawn from the case.
On December 17, 2021, the court entered an order continuing Russell's motion. A hearing was finally held on March 31, 2022, and on April 18, 2022 the court entered an order denying the motion and ordering Russell to report to jail on April 15. Russell then moved the court to reconsider its denial of his "stay of execution," and after a bit more wrangling the case was finalized and Russell appealed.
Those of you who know that italics should be used sparingly and only to denote words of great import has probably already cottoned onto how Judge Callins, joined by Judges O. Brien and Fulton, resolved this case in under 6 pages. The October 1, 2021 order suspending the execution of the sentence imposed by the September 24, 2021 conviction order. It did not suspend the conviction order. Because no order had been entered modifying, vacating or suspending the conviction itself, the circuit court lost jurisdiction to consider any substantive issue related to the case 21 days after the entry of the order.
Before you get on you high horse and start saying "form over substance!", let me remind you that trial courts speak only through their orders, and suspending a sentence is something quite separate and apart from suspending the order that imposed that sentence. Indeed, by statute a court has authority to suspend the execution of a sentence well after the 21 day period of Rule 1:1 -- that statute in fact requires the court to do so. Its Code § 19.2-319, which provides that once a court is advised that the defendant has "an intention to apply for a writ of error, the circuit court shall postpone the execution of such sentence for such time as it may deem proper." Since appeal notices do not have to be filed for up to 30 days, there will obviously by a 9-day period where the court lacks jurisdiction to suspend the conviction order but must suspend the execution of the sentence. There are other cases where the court can suspend execution as part of its duty to superintend its order.
So perhaps the wording of the order was a scrivener's error and the judge meant to suspend the conviction, rather than the sentence. Russell certainly didn't help that argument when he later referred to the relief he was seeking as a "stay of execution." In any case, the order says what is says, and the Court of Appeals correctly determined that jurisdiction was lacking both as to the entry of the order and the power of the appellate court to review its entry.
David W. Fauber v. Town of Cape Charles, et al. (January 30, 2024) reminds that the adage "all politics is local" is certainly true in Virginia -- and more specifically in this case, the Eastern Shore. Cape Charles is a town of just over 1000 with a town council of 6 and a separately elected mayor. Cape Charles uses a town manger form of government, but its charter provides that when that office is vacant, the powers of the manager devolve onto the mayor. During one such interregnum, the mayor fired the town's director of public works and utilities, Fauber. Fauber sued the town and mayor proposing the novel theory that the charter's provisions giving the mayor the power of the town manager violated Article VII, § 6 of the Virginia Constitution which prohibits an elected officer of a governing local body to hold any office filed by the government body. The circuit court granted summary judgment, finding that it was undisputed that the mayor had not been made the town manager, but was only exercising the authority of that office which was the governing body's power to delegate.
Given the Court's decision in Fredericksburg Ambulatory, supra, you may be surprised to learn that the Court in this case, Judge Raphael joined by Chief Judge Decker and Judge Huff, have no issue with this case being proper for summary judgment. After all, you might argue, wasn't Fauber disputing the "fact" that the mayor was action Town Manager? Well, yes, but actually no.
Two of Fauber's four assignments of error argued that there were material issues of fact in dispute, but the Court found that these issues were not ones of fact, but of law. First, whether the mayor was serving as town manager or merely exercising the authority that would normally be delegated to that office as was very clearly stated in the town charter, which is approved by the General Assembly, and as such is presumed to be constitutional. Moreover, while the mayor lacked the power to eliminate the public works office (which was done by the town council later), there was no dispute that one of the powers of the town manager was the hiring and firing of town employees.
I must say that I was honestly surprised to learn that Cape Charles has the resources to employ of town manager and a director of public works (as well as a police chief) and enough other employees that it has a human resources manager. Roanoke County, which as a population almost 100 times that of Cape Charles has a board of supervisors of just 5, and while it has many municipal employees, it has a tax base to support them. I wonder even more about Clinchport, with a population of just 64, the smallest chartered town in the Old Dominion.