If like me, dear reader, you await the Tuesday missive’s from the Court of Appeals announcing new opinions to peruse, you, like, me were surprised that no such missives appeared in your inbox (or perhaps mine were diverted by some gremlin?). In any case, I checked the website and determined that while there were 15 unpublished opinions (all affirmances — about which I shall speak at the end of this post), there were no published opinions today. But there was a published decision and a most unusual one at that. What made it so? Let me count the ways:
It was a published order from an en banc court.
But it was not from rehearing of a panel decision.
All 17 members of the Court sat on the case.
The decision was 16-1.
It was a Commonwealth’s appeal.
It was from a determination to not revoke bond pending trial following a violation of the conditions of bond.
The facts of the case could not be more straightforward. Devin Denny, a resident of the District of Columbia, was charged in the city of Alexandria with various offenses related to the assault of J.L. with whom Denny has an unspecified number of children. He was initially let out by a magi state on $2000 bond and at his advise was further advised that as a condition of his remaining free he should have no contact with J.L. Denny allegedly violated this provision about six months later by a phone call and Facebook post, but no physical contact, and the Commonwealth sought to revoke his bond in the J&DR Court, which granted the request.
Denny appealed to the circuit court and there his attorney made a most unusual argument. Denny’s counsel contended that as the Commonwealth had not appealed the initial conditions of Denny’s bond, the circuit court should not consider the alleged offenses as part of its calculus of whether Denny should now be placed in custody. Rather, counsel contended that the only issue was whether Denny’s contact with J.L. was a sufficient ground to revoke his bond.
At the conclusion of the hearing, the circuit court determined to reinstate the bond revoked by the J&DR court. In doing so, it did not expressly state that it was not considering Denny’s potential danger to the community based on the alleged criminal acts, nor did the court say that it had considered them. But the court did tell the Commonwealth it could appeal the decision, although it thought that the Commonwealth’s opportunity to appeal based on the felony charges, rather than the violation of the terms of the bond, should have been raised when the bond was initially granted.
The Commonwealth did appeal, but not simply to challenge the reinstatement of the bond — a matter committed to the circuit court’s sound discretion, and therefore a likely loser for the Commonwealth — the Commonwealth also asserted that the circuit court should have, but in its view did not, consider the seriousness of offenses with which Denny had been charged. The Commonwealth contended that the court’s statement about the time to challenge that determination having passed was evidence that the court did not consider the offenses charged as part of its calculus.
Now bond appeals are curious things. Because they are directed by statute to be expedited, the “appeal” is treated as a motion under Rule 5A:2. Accordingly, the case is not assigned a docket number and is typically referred to a panel of judges which issues an order, not an opinion — because motions are decided by orders. Typically such orders are not published because they are almost always based on lack of abuse of discretion.
In this instance, however, the panel that looked at the Commonwealth’s “motion” had a problem — on the members disagreed with the majority, which was set to remand the case telling the judge to reconsider the evidence giving attention to the crimes charged. The dissenting Judge, we can infer from the dissent in today’s order, was having none of that — not because she, for it was Judge Chaney, agreed with Denny that the court could not consider that evidence but because she was of opinion that the record failed to support the notion that the judge had not done so. The disagreement was sufficiently strong that the panel did not issue its order, but instead the Court issues a sua sponte order taking the matter up en banc, with Judge Chaney dissenting from that action.
As you can already guess from the introduction, the 14 other Judges sided with the majority from the panel and issue a six page decision explaining that every time bond is reconsidered, the court must review the totality of there record and apply the same review required by Code § 19.2-120(B). Judge Chaney dissent is just over 9 pages and takes the majority to task on several points, starting with the already noted observation that the record, if viewed in the light favorable to the party prevailing below, “does not support the Court’s findings that (i) ‘the circuit court failed to consider Code § 19.2-120 in determining whether to revoke Denny’s bail’ and (ii) the circuit court ‘only considered the alleged new conduct, rather than viewing all of the circumstances in total, when making its determination whether to revoke bail.'”
She notes that although Denny contended that the circuit court should not consider the underlying offenses, both his counsel and the prosecutor argued the merits of those charges and what they portended about Denny’s propensity for violence. She further notes that in its bench ruling, the court expressly stated it was “considering all the circumstances” with no indication that this was limited to the violation of the bond only.
Judge Chaney also takes the Commonwealth to task for a mischaracterization of the proceeding as a motion for bond and notes that the majority was complicit in this mischaracterization. The Commonwealth calls the hearing in the circuit court a motion for bond by Denny, contending that his bond had been revoked in the J&DR Court and he now had the burden of obtaining a new bond, and that it how the majority sees it too. But Judge Chaney says, No, it was an appeal de novo of a decision the J&DR courts revoking of a bond, and on appeal de novo the Commonwealth had the burden to show why the bond should be revoked.
Lastly, Judge Chaney notes that the record amply supports the circuit court’s decision to not revoke the bond. Indeed, she lists all the many factors in favor of having Denny remain free — possibly as a tool for the circuit court to crib from on remand.
Now, I will admit that I appreciate Judge Chaney chutzpah for being willing to go up against her 16 colleagues. More than that, I must concede that I find much merit to her arguments, especially as to the procedural posture of this case in the circuit court being an appeal de novo — she is simply right about that and the majority now stand for the proposition that when a district court revokes (rather than denies) a request for pre-trial bond, there is no “appeal” from that judgment, rather the defendant must seek a new bond in the circuit court. That simply cannot be right for a very simple reason — when a bond is still under the control of the district court because there is no indictment or information against the defendant as of yet the circuit court has no independent jurisdiction to grant bond. The circuit court’s jurisdiction is derivative of that district court’s and therefor must be from a de novo appeal.
Having said that, I do see why the Court of Appeals felt that it had to address this issue because the majority is correct that the circuit court should consider the totality of the circumstances in determining whether to revoke bond — and unlike Judge Chaney I think there is some room for doubt that the circuit court did so in this case. Certainly enough doubt that I do not think the majority was too far off the mark in deciding to err on the side of caution.
So now we we wait to see if Denny appeals to the Supreme Court or accepts the remand at which time I presume the circuit court will review the evidence in toto and reinstate the bond.
Now a brief word about those 15 unpublished decisions. I think it is fairly clear that at least some of these cases were “auto-granted” because the petitions were pending one judge orders or three-judge review on January 1, 2022 and the Court is now disposing of them by unpublished opinions that say, in effect, what the one-judge order would have. It remains to be seen whether the Court will continue to have nearly meritless appeals that must be dealt with this way and, if so, whether the new process will really be more efficient.
The Court of Appeals issued one published opinion today and, if it lacks the automatic snooze factor of last week’s administrative law appeal, it was no more interesting given that its subject matter, “Speedy Trial in a Time of COVID,” is one that is not likely to generate any surprises. Jovan Anthony Ali v. Commonwealth of Virginia generates a surprise only by its length, clocking in at just over 26 pages.
Ali was convicted of unlawful wounding in violation of Code § 18.2-51 as a lesser included offense of malicious wounding. The incident occurred in July 2019, Ali was arrested about two months later and Ali was indicted on March 16, 2020, which coincidentally was the date the Supreme Court of Virginia issued its first judicial emergency order in response to the COVID-19 pandemic, restricting trials and non-emergency proceedings as a result. As the pandemic continued, all jury trials were suspended. The opinion does not state whether Ali or the Commonwealth requested a jury trial, but in any case, Ali was not tried until November 2020 — well beyond the statutory time for a speedy trial, as Ali was held in custody by the Commonwealth for the entire time.
Ali made repeated objections based on both statutory speedy trial and constitutional speedy trial, the latter being a due process matter based on the 6th Amendment. The circuit court was having none of it, citing the emergency orders of the Supreme Court as a basis for denying the statutory claim, and further finding that even if there were no orders, the pandemic would have justified the delay, and further finding no prejudice to Ali from the delay that would raise due process concerns. Ali was sentenced to five years, with the circuit court imposing that sentence, of which Ali had served just over a year. [Side note: I am willing to hazard a guess that had Ali agreed to a plea to the reduced charge, which I suspect the Commonwealth offered or was at least open to considering, the court would have sentenced him to less time and suspended most of it — with good time credit, he’d likely have been out well before his eventual trial date.]
Ali appealed only the speedy trial issues, apparently having no truck with his actual conviction, and today the Court of Appeals affirms. With respect to the statutory claim, the Court notes that Ali does not challenge the authority of the Supreme Court to issue the emergency orders, thus the Court need not address the circuit court’s assertion that the pandemic in and of itself would have justified the failure to comply with the statute. Finding, as it has already in other circumstances, that the suspension of normal trial process was justified by the judicial emergency of a global pandemic, the Court concludes that the circuit court correctly denied Ali’s statutory claim. The Court does this in just six pages, including the recitation of the facts and summary of the parties arguments.
The other 19 pages are devoted to Ali’s due process claim. While I commend Chief Judge Graff, writing for herself and Judges Ortiz and Causey, for her thoroughness and diligence in addressing as vital an issue as the right to a speedy trial, I don’t believe that a summary of that analysis would be of particular benefit here. Suffice to say that Ali did not suffer any prejudice from the 21-month period between indictment and trial that would warrant setting aside the judgment for due process concerns.
There were 10 unpublished opinions this week (addressing 11 appeals). The only one of particular interest is Karen Clevonne Frazier v. Commonwealth of Virginia, an Anders opinion granting leave for appointed counsel to withdraw. Frazier was convicted on a guilty plea, and the circuit court sentenced her to a lawful sentence. As any good practitioner should know, a guilty plea is a waiver of most issues that can be raised on appeal. There are two issues, however, that can be raised — the jurisdiction of the court to try the defendant and the lawfulness of the sentence imposed.
Lack of jurisdiction, as we all know, can be raised at any time. However, it is also very unlikely that a criminal case would reach the circuit court without that court having jurisdiction — personal or subject matter — over the defendant and the offense charged. I am sure a law professor could come up with a scenario where one might credibly challenge jurisdiction — perhaps based on some defect in the indictment. However, in the real world, it’s just not very likely going to be an issue that needs to be addressed.
Likewise, to be “unlawful” a sentence must either exceed that which is allowed by statute or constitute an abuse of the circuit court’s discretion. When that former occurs, usually as the result of a typographical error in the sentencing order, for example a substitution “years” for “months,” or on rare occasions where the court imposes a sentence based on the charge of the indictment when the defendant pleads to a lesser offense. The latter is, well, just not a viable issue for appeal if the sentence is lawful . . . or is it “viable?” You see, just because one knows that Court consistently rejects abuse of discretion arguments challenging otherwise lawful sentences does not, in my view, make the argument wholly frivolous. And therein lies the rub, as an Anders brief is for wholly frivolous appeals.
Thus, when an appointed attorney is directed to file an appeal following a guilty plea, the choice is between filing a nearly frivolous appeal asserting that the sentence was, if not unlawful, certainly unduly harsh, or filing an Anders brief seeking to withdraw as counsel. An Anders brief requires the attorney to include all possible grounds for appeal and also demonstrate that they are without merit. Thus, appointed counsel are often faced with the dilemma of whether they have an ethical duty to file an Anders brief in such cases, where the latter is objectively more difficulty to file — making both the argument and the rebuttal as opposed to just the argument.
My view has always been that they are not ethically required to do so in the Court of Appeals. Rather, I think the attorney can file a standard appeal, waiving oral argument, and making clear in the the brief that the attorney recognizes the near futility of the appeal. Why? Several reasons, but I will cite just two:
First, appointed-clients are entitled to the best representation an attorney can provide, and seeking to withdraw at the first stage of the appellate process will likely damage the client’s probably already jaundiced-view of the court-appointed counsel. Even if you explain the futility of the appeal to the client, they will hear “I am not interest in making your case because I don’t get paid enough.” Clients who feel they have been dis’ed are clients who file bar complaints — and even if the complaint has no merit, it can still inconvenience the attorney.
Second, filing an Anders brief in the Court of Appeals does not relieve the attorney of two important duties — to consult with and advise the client of the effect of the order permitting counsel to withdraw and to file a notice of appeal and request for appointment of new counsel if the client directs the attorney preserve the right of appeal to the Supreme Court — these duties are non-waivable even when the attorney has been relieved as counsel by the Court.
Contrary to a widely-held misconception, a granted Anders does not eliminate the indigent defendant’s right to appointed counsel or to pursue the appeal to the next level, and even when given leave to withdraw, the attorney cannot simply “ghost” the client. There have even been instances of a newly appointed counsel finding some flaw in the trail proceeding resulting in a remand of the case to the Court of Appeals for a full briefing on the merits (albeit this was not in a guilty plea case, but one where the attorney simply wanted to be shed of a difficult client). Typically, the client will simply appeal the case himself, confirmed in his belief that appointed-counsel are worthless, but this fact does not eliminate the duty of the former counsel to properly close out the litigation.
So, what about filing an Anders petition in the Supreme Court? Well, I can certainly see why an attorney who didn’t file Anders in the Court of Appeals might reasonably say, “Appealing the judgment of the Court of Appeals would be wholly frivolous, so now I must file and Anders.” And, technically, the attorney would be correct. Technically. But, I am equally sure that the Supreme Court of Virginia will never take offense at an attorney filing a standard petition in such cases, provided that attorney acknowledges the near futility of the appeal. Certainly, the Court is not going to refer such attorney to the bar, so long as the appeal is otherwise procedurally correct. More to the point, being relieved as counsel by the Supreme Court is a pointless measure. Once the state appellate process is complete, the attorney has no duty to pursue further relief on behalf of the client, either by writ of certiorari to the US Supreme Court or by state or federal habeas.
The Court of Appeals released a single published opinion today, and its a real snoozer. Frequent readers of these missives will recall that my preferred bedtime reading when I have insomnia is anything to do with Administrative Law. Virginia Department of Corrections v. Richard Bishop should fit in nicely with my collection of sleep-inducing reads. Even the salacious nature of the underlying facts are so mundanely recounted that the mind tends to wander by page 2. Succinctly put, Bishop heard a rumor that Ms. B was in a relationship Mr. A, her supervisor (that is literally how the opinion identifies the parties). Anyway, VDOC regulations required that any improprieties of this type be reported, but Bishop found the rumor to be not credible, so he didn’t do so. Now, in an attempt to make this a bit more interesting for you dear reader, let me pause her to recount a story about Andy Griffith which seems apropos:
Griffith was a relatively unknown actor when he produced a comedy single called “What it was was Football.” The promoter of the record tried to get Robert D. Raiford, an announcer (as disc jockeys were called back then) for a popular Atlanta Station to include the record in his broadcast, but Raiford declined, saying that his audience was not interested in country humor. The record went on to be a number 1 hit. Years later, Raiford was an occasional supporting actor on Griffith’s TV show Matlock which was set in and filmed in Atlanta. One morning, the two men happened to be in the make-up chairs beside one another and Raiford mentioned that he had been offered the opportunity to play the record on his show, but had not done so. Griffith replied, “Someone else did, did they?”
As you can guess, someone else did report the rumor — two someones in fact. It also came out that Bishop had known about the rumor and had not reported it. Bishop was subsequently placed on pre-disciplinary leave for failing to report the alleged relationship. It was subsequently determined by the VDOC that the failure to report the possible violation was a fire-able offense and Bishop was fired. He filed a grievance to review the decision.
At the grievance hearing, Bishop asserted that he did not have knowledge of the alleged relationship, only that he knew what was “rumored” and accusing Ms. B of “sleeping her way to the top” was likely to be improper in itself. However, the hearing officer determined that Bishop was still required to file a report. Bishop appealed this decision to the circuit court.
Now when circuit courts conduct hearings in administrative appeals, they are sitting in appellate jurisdiction. This means that typically they shouldn’t redetermine the facts, but limit their consideration to whether the hearing officer’s decision is “contrary to law.” But the question is, “contrary to what law?”
In this case, the circuit court decided that it should reconsider Bishop’s argument that reporting a rumor that Ms. B was in a relationship with Mr. A to further her career prospects might be discriminatory in that it would create a hostile work environment under Title VII of the Civil Rights Act of 1964. As it so happens that there is a Fourth Circuit case that arguably might support that argument — though under much different circumstances. The court then went own to analyze VDOC’s Standards of Ethics and Conflict of Interest Operating Procedure, determining that Bishop’s failure to report the rumor did not violate the policy, and based its decision on that alone — not on the possible conflict of the policy with Title VII. The circuit court reversed the termination and order Bishop to be reinstated.
On appeal to the Court of Appeals, VDOC contended that the circuit court does not have the authority to reinterpret VDOC’s internal policies. The Court of Appeals begins its opinion by noting that Bishop did not assign cross-error to the circuit court’s failure to find that the possible conflict with Title VII was an alternate grounds for reversing the hearing officer. As Scooby Doo would say, “Rut Roh!”
“Rut Roh” is right. The “law’ that circuit court’s review in such cases is limited “to ascertaining compliance with constitutional provisions, statutes, regulations, and judicial decisions.” You will notice that “interpretation of internal policies” is not in that list. In short, the circuit court went outside its appellate jurisdiction in construing the VDOC’s policies differently from the hearing officer.
Two points need to be made here. First, the fact that the circuit court could not reinterpret policy does not mean that the hearing officer’s interpretation is not subject to review. Rather, Bishop had the choice to seek further administrative review within the DOC, but chose to go to the circuit court instead. Now you might be wondering why Bishop was “required to exhaust his administrative remedies,” and the answer is that the Code actually gives him that choice.
Second, while the Court of Appeals does not specifically say that the Title VII issue would have been a sufficient basis to set aside the termination, it does note that the circuit court was “sympathetic” to this view. However, because the issue was not raised by cross-error and “the record here is not sufficiently developed that a determination can be made that VDOC’s policy as applied here necessarily conflicts with Title VII,” the Court expresses no opinion on that issue.
Now, the headline promised something more exciting from the unpublished decisions today, at least by comparison to administrative law. There were 15 unpublished opinions released today (well, 13 really, as one opinion decided three appeals), and all were affirmances, including a Commonwealth’s appeal. Commonwealth’s appeals in the Court of Appeals are fairly rare, as they can only occur where a circuit court makes a ruling based on the denial of a constitutional due process right which prohibits a criminal prosecution.
Commonwealth of Virginia v. Christopher Francis Martinez is an appeal from the sustaining of a motion to suppress evidence. The incident involves a call for medical assistance by a ride share driver whose passenger was passed out in the back seat of his car. By the time police arrived, however, Martinez, the passenger, was conscious and responsive. Martinez had two driver’s licenses, one for Colorado and one for Virginia. He provided the first to the officer who had initially responded, who returned it. A second officer also arrived, but as this was a community caretaker situation, he went on to another call as only one officer is required in such cases according to local policy.
Then, two additional on the scene, and recognized Martinez from their “experience in ‘special investigations’ and believed that the situation ‘may have been narcotics related.’” They decided to question Martinez and had the ride share driver (who was losing out on fare opportunities, but that’s beside the point) move to a safer location then had Martinez exit the vehicle and move to under the awning of a nearby building to “get out of the rain.”
Upon being questioned “why he was not in Colorado,” Martinez provided the officers with his Virginia license. While one of the officers took this license to run a check for outstanding warrants, another officer asked to search Martinez’s pockets, testifying later that “guns and drugs go together” and he wanted to “keep everybody safe at that point.” However, the officer did not conduct a “pat-down,” but simply reached inside the pockets of Martinez’s jacket, and found marijuana and Xanax inside. The officer then asked Martinez if he “had anything else one him” and said “this is one of those moments where, if you be honest man, and work with us now . . . we obviously know who you are, let’s make some smart decisions now.” Martinez admitted that he had several “rocks” of cocaine in one of this socks. He was then handcuffed, and the cocaine was removed from the sock. Martinez was arrested and charged with various drug offenses.
Martinez moved to suppress the evidence seized from his person. At the suppression hearing, the Commonwealth argued that there had been “no police misconduct,” and the circuit court agreed, saying that the initial search was “consensual.” However, Martinez filed a motion to reconsider, asserting that when he was required to exit the vehicle and surrender his driver’s license, he had been seized and was not free to leave. The officers’ familiarity with Martinez was not, without more, a sufficient cause to detain him.
The circuit reviewed the body cam footage of the stop and concluded that under the totality of the circumstances Martinez had been seized and would not have felt free to leave, thus his consent to the search was not voluntary. The court accordingly applied the exclusionary rule and suppressed the evidence. The Commonwealth did not expressly argue that the exclusionary rule was not the appropriate remedy, although it did reassert that their had been no “misconduct.” Of course, without the evidence, the case was dead in the water.
The Commonwealth appealed the suppression of the evidence, asserting both that the encounter and search were consensual and that even if not, suppression of the evidence was not warranted. Addressing the first issue, the Court agrees with the circuit court that a person in Martinez’s position would not have felt that he was free to leave or to refuse to be searched.
The Commonwealth’s second issue was that even if the search were improper, “exclusion of the evidence was not the appropriate remedy.” Although the Court of Appeals notes that this issue was not expressly asserted in the circuit court, the Court nonetheless states that ” the exclusionary rule is necessary to deter such police misconduct in the future” so implicitly it finds that the Commonwealth’s assertion that there was no “misconduct” was incorrect. The question that comes to mind is whether the Commonwealth is, under the new Attorney General, going to press the idea that the exclusionary rule is not “appropriate” in all cases — for example where the officers make an “innocent mistake” or where there is “confusion over whether the consent was voluntary.” This is the position of at least two members of the United States Supreme Court, and as that Court now has a clear conservative majority, it may be that the Attorney General is looking to test the boundaries of exclusion of improperly obtained evidence.