Updated: Apr 27, 2023
We get three new published opinions from the Court of Appeals this week, all from criminal cases.
Travis Alexander Bland Henderson v. Commonwealth of Virginia is all about the word “shall,” which the Court of Appeals, Judge Raphael joined by Judges O’Brien and Ortiz, notes “has multiple possible meanings.” Typically, shall will be considered to be directory – that is merely suggesting that an act take place – when it applies to an action of a court, but is mandatory – that is the act must take place – when applied to a requirement of some action by a litigant. However, where the context of the statute can be said to imply a mandatory action by the court, it will be read as such.
The “shall” in question here is found in Code § 19.2-295(A), which contains not one, but two instances of the word: Within the limits prescribed by law, the court shall ascertain the term of confinement in the state correctional facility or in jail and the amount of fine, if any, when a person is convicted of a criminal offense, unless the accused is tried by a jury and has requested that the jury ascertain punishment. Such request for a jury to ascertain punishment shall be filed as a written pleading with the court at least 30 days prior to trial.
A jury convicted Bland-Henderson of possessing a firearm after being previously convicted of a violent felony, and the trial judge sentenced him to the mandatory minimum of five years’ incarceration. The judge sentenced Bland-Henderson because Bland-Henderson did not file a written pleading requesting jury sentencing within 30 days prior to trial, but he did do so 13 days before trial. Bland-Henderson asked the circuit court to let the jury sentence him anyway, but the court said no.
On appeal Bland-Henderson argues that both shalls are directory and, thus, even if he failed to file a timely request for a jury sentencing, the circuit court was not required to impose the sentence, because the first “shall” does not mandate that the court sentence a defendant, only that it may do so, and the second does not prohibit a defendant from asking for a jury sentencing less than 30 days before trial. The Court of Appeals disagrees, finding that the second “shall” is plainly mandatory – a defendant must request jury sentencing in a written pleading at least 30 days before trial. The opinion has a lengthy and comprehensive discussion of the “can/must” dichotomy in construing “shall”.
But what of the first “shall”? The Court does not expressly say so, but one would presume that it too is directory – that is, when no valid request for jury sentencing is made, the trial court should be the one determine the sentence of a convicted defendant – otherwise no one would, but, presuming the trial court were willing to do so, could it honor a late filing of a jury sentencing demand. I don’t think the Commonwealth would like it and I doubt many judges would consider doing so, but the Court of Appeals began its discussion by saying that when applied to court, must is generally directory and not mandatory.
There is, of course, one point that the Court of Appeals overlooked, or perhaps recognized, but chose not to address. That is that even if Bland-Henderson was correct that the circuit court somehow erred in not allowing the jury to sentence him, that error was plainly harmless because the mandatory sentence for being a felony in possession is also the maximum sentence allowed. Once Bland-Henderson was convicted, he was getting five years no matter who imposed the sentence, so why bother?
Well, the Court bothered because Bland-Henderson also appealed the circuit court’s not permitting him to ask the prospective jurors about their views on mandatory sentences. If the court erred in not allowing jury sentencing, the analysis of this issue might be different. As it is, the Court quite sensibly says that as the jury was going to be sentencing the defendant, their views on sentencing were irrelevant. Bland-Henderson also challenged the sufficiency of the evidence because it was basically his word against that of the arresting officer, which the Court found to be sufficient in less than a page of analysis.
The defendant in Jose Guadalupe Vera, Jr. v. Commonwealth of Virginia had a prescription for the substance, gamma-hydroxybutyrate better known as GHB. GHB has legitimate uses for treating certain diseases including narcolepsy, from which Vera suffers, but it is sometimes used as a 'party drug' in the dance and club scene. It produces feelings of euphoria, relaxation and sociability, and an increased urge for sex. Vera, who was 18, and a 17-year-old male friend, ingested GHB prior to “hanging out” with two female minors. Vera then offered GHB to the two females, but, taking the evidence in the light most favorable to the Commonwealth, did not tell them what that it was a drug. – Now, allow me to pause here to say that while I am fully willing to believe (or rather, required to accept under the standard of review) the testimony of the two girls (though one was very equivocal) that they did not know that Vera was offering them GHB, I do question the wisdom of their accepting the proffered substance in a shot glass without inquiring what it was. One testified she thought it was “tea.”
Anyway, the girls wound up in the hospital and Vera wound up charged with PWID – PWID, if you don’t know the lingo, is “possession with intent to distribute” some controlled substance. At trial, the Commonwealth sought to question Vera about a prior incident involving GHB, and he objected on the ground that this was inadmissible “prior bad acts” evidence. The circuit court overruled the objection, finding that the Commonwealth’s proffer that this evidence was admissible to prove Vera’s modus operandi and lack of mistake outweighed the prejudice of the bad act. As this was a bench trial, the court is presumed to have disregarded the prejudicial effect. Vera argued that he provided the drug to the girls as an “accommodation,” which is a misdemeanor, rather than a class five felony. The circuit court disagreed.
The Court of Appeals, Judge White joined by Judges Huff and Fulton, affirms. This is not really surprising – except that this is a published decision, so one suspects that the Court felt that the accommodation issue was sufficiently important to warrant publication, as the bad acts evidence aspect of the case was hardly a new or novel application of that law. I think it is fair to say that the Court may have had some doubt regarding the young ladies’ naïveté and perhaps wanted to give guidance for future such situations. In short, if you are going to share your party drug, make sure your friends know what it is first, or it’s a felony.
Clifton Haley Harper, Jr. v. Commonwealth of Virginia involves the rarely brought charge of subornation of perjury. Harper was charged with assaulting K.M. at a motel where the two were apparently occupying the same room. Despite an emergency protective order preventing Harper from having contact with K.M., he called her more than once from jail, which, naturally, were recorded. Harper professed his undying love for K.M. (well, he might not have used that exact phrase) and sought her aid in having the charges dismissed. He instructed her to “just not show up” or to testify that he “didn’t do anything” to her.
At Harper’s bond hearing, K.M. denied that she had been assaulted, but that she and Harper had argued. She also said she had lied to police. Her testimony, however, was very much at odds with the forensic evidence. Harper was eventually charged with several offenses arising from the assault and also with inducing K.M. to give false evidence.
At trial, K.M. revised her testimony from the bond hearing, admitting that Harper pushed her off the bed and against a wall and struck her. She admitted that the phone conversations with Harper “contributed” to her decision to perjure herself at the bond hearing.
Harper argued that he did not induce K.M. to commit perjury because her testimony at the bond hearing did not fully exonerate him because she had shown up at the hearing and had not said that he “didn’t do anything” to her. The circuit court did not agree and neither does the Court of Appeals.
In an opinion by Judge Humprheys joined by Judges Huff and AtLee, the Court finds that K.M.’s testimony at the bond hearing was false and that it was induced by Harper’s statements in the jail calls. It is not necessary for the defendant to “script” the false testimony for the perjuring witness, or even that the witness testifies as the defendant wants. Rather, it is enough to show that the witness testified falsely because of the actions of the defendant. Harper also challenge a conviction for failure to appear, but the Court found that his argument was not properly preserved in the trial court.
When I started this “blawg” I indicated that I would concentrate on summarizing and commenting on the published opinion of the Court of Appeals of Virginia, with occasional sojourns into the vast trove of unpublished opinions. I have been somewhat remiss in that latter mission, and have decided that it is time to rectify that circumstance. Let’s begin by heading back to December 6, 2022 and the decision in Horan v. Commonwealth. The circuit court convicted Horan of assault and battery of a law enforcement officer, in violation of Code § 18.2-57(C), attempting to disarm a law enforcement officer, in violation of Code §§ 18.2-57.02 and 18.2-26, trespassing, in violation of Code § 18.2-119, disorderly conduct, in violation of Code § 18.2-415, attempting to prevent his arrest, in violation of Code § 18.2-460(E), and public intoxication, in violation of Virginia Beach local ordinance 23-22. In addition to these charges, Horan was acquitted of assault, failure to provide identification to law enforcement, and obstruction of justice.
As you can probably guess, the underlying incident involved Horan having visited an establishment that serves adult beverages. What you may not have guessed is that Horan conceded that he was already several sheets to the wind upon arriving at the restaurant in the afternoon after leaving his job at a local brewery, suggesting that perhaps he had been sampling the product. In any case, Horan get into a brouhaha (or perhaps brew-haha) with the bartender and eventually “fell asleep” at the bar.
Horan refused the bartender’s request that he vacate the premises, but agreed to do so at the request of the manager. Except that he didn’t. While it is not entirely clear how, the bartender came into possession of Horan’s wallet, which she gave to the manager, who then emerged from his office to find several other customers from attempting to restrain Horan from assaulting the bartender. Now there is an interesting side note that the circuit court found the bartender’s testimony to be incredible – but nonetheless found the testimony of the other patrons and the manager sufficient to convict Horan, which makes one wonder exactly what the bartender said on the stand that was inconsistent with this other evidence, which included Horan throwing his sunglasses at her and calling her sexual and racial slurs.
Eventually, the police arrived, and Horan immediately complied. No, I’m kidding, of course. Horan, despite being handcuffed, continued to struggle and knock the police and another patron to the ground. At one point, Horan placed his hand on one of the officers’ service weapon and tugged at it. The weapon’s security strap was engaged, preventing Horan from removing the weapon. Horan, testifying on his own behalf, admitted to touching the weapons, but claimed he was merely “feeling around” to find something to allow him to steady his balance.
While the Court of Appeals, Judge Huff joined by Judges O’Brien and White, have no difficulty in affirming the rest of Horan’s conviction, they find the evidence insufficient to support the conviction attempting flee arrest. The Court reasons that Horan was never verbally advised that he was being placed under arrest and was never outside the officers’ “immediate control” despite his breaking free from their grasp when knocking them to the ground.
I am going to express some surprise that the Court did not find that this was a disputed issue of fact to be resolved in the light most favorable to the Commonwealth. While it is true that the officer’s never said “You are under arrest,” Code § 18.2-460(E) stated that “arrest” can arise as a result of “(i) the officer applies physical force to the person, or (ii) the officer communicates to the person that he is under arrest.” The officers definitely applied physical force to Horan, and he definitely tried to break away from that arrest. Perhaps the Court of Appeals is applying the Lynyrd Skynyrd “three steps rule”?
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.