The Court of Appeals released two published opinions, including an en banc opinion addressing the application of the COVID tolling orders. In addition, there was an unpublished opinion that is worth of a mention, so let’s start there.
Bradford T. Cellucci v. Commonwealth of Virginia is unusual in that it finds error in a trial court’s consideration of mitigating circumstances in imposing sentence. The opinion begins with the observation that “[a] trial court’s decision to modify a sentence after a horrific crime is a weighty matter,” and the crime here was indeed horrific — an attack with a claw hammer that left the victim paralyzed from his chest down. The circuit court sentenced Cellucci to the maximum sentence allowed, life imprisonment and a $100,000 fine. Cellucci appealed the circuit court’s denial of his motion to reconsider his sentence under Code § 19.2-303. Cellucci contended the circuit court abused its discretion in determining Cellucci failed to prove any circumstances in mitigation, despite evidence demonstrating Cellucci’s Autism Spectrum Disorder (ASD) diagnosis, lack of criminal history, and demonstrated ability to be rehabilitated. Further, he contended the circuit court erred by failing to address whether modifying Cellucci’s sentence was compatible with the public interest because the original sentence violates the United States Constitution’s Eighth Amendment and Due Process Clause.
Today, a majority of a panel of the Court of Appeals reverses and remands the case for a new sentencing. Judge Ortiz, joined by Judge Causey, finds that the circuit court abused its discretion in making the erroneous legal conclusion that Cellucci failed to prove any mitigating circumstances and in failing to consider Cellucci’s mitigating circumstances evidence. The principal view taken by the majority is that the circuit court erred by finding that the evidence presented by Cellucci did not establish mitigating circumstances, rather than finding that the evidence of mitigation did not warrant a reduction in the sentence.
Chief Judge Decker dissents, finding that the majority has misinterpreted the circuit court’s analysis of the evidence in an eight page order denying relief on the motion to reconsider. In her view, the court found that the primary focus of Cellucci’s mitigation argument was his ASD diagnosis, which the court found “had minimal probative value.” Judge Decker concludes that when viewed as a whole, the record fails to show that the circuit court disregarded the evidence in mitigation, but simply found that evidence was not sufficient to outweigh the need to impose the maximum punishment for a horrific crime.
I expect that the Commonwealth will seek a rehearing en banc or note an appeal to the Surpeme Court.
The en banc opinion address an issue that is likely pending in a number of other cases — the impact of the tolling provisions of the various orders issued by the Supreme Court of Virginia during the ongoing public health emergency caused by the COVID-19 Pandemic. In the original panel decision of Clifton Thomas Jacks v. Commonwealth of Virginia, a 2-1 majority found that Jacks could not benefit from the tolling order in seeking a delayed appeal from a judgment in the general district court to the circuit court, finding that his appeal was barred by the failure to preserve the issue of the tolling effect of the order by a contemporaneous objection. You can read my analysis of that opinion here. The case was of sufficient note to garner some attention from the Sage of Virginia, Steve Emmert, who called the decision “staggering,” a view shared by yours truly and numerous others, including Judge Huff, the dissenting member of the panel, who noted that it was not really possible for there to have been a contemporary objection because the circuit court entered the order sua sponte and waived endorsement in light of the COVID pandemic.
Today, a unanimous en banc undoes that staggering decision. Now, interestingly enough, that opinion does not say that Jacks (or rather his counsel) made a timely objection. Quite the reverse, it appears to accept that Jacks (or rather his attorney) never made the argument that his deadline to appeal to the circuit court was tolled by the Supreme Court’s Emergency order. That might lead you to believe that Jacks was destined to lose again.
But, no. The Court now adopts the view of the dissent in the panel in an opinion authored by Judge Huff. Judge Malveaux, who was on the panel with Sr. Judge Annunziatta (senior judges typically do not sit en banc), has either changed her view or decided to silently dissent. The opinion notes that the merits of Jacks assertion that the deadline was tolled “have never been the main point of contention in this appeal.” Rather, it’s that sticky issue of his counsel not having told the circuit court “but that deadline was tolled by the emergency order.”
The majority agrees that the sua sponte order dismissing the appeal from the general district court entered without endorsement deprived Jacks of the ability to make a contemporaneous objection. And what of the 21-day rule? The Commonwealth says Jacks (or rather his counsel) could have used that time to bring the issue to the circuit court’s attention. Well, it turns out the Supreme Court has already said, “No, that’s not required.” This seems fair in as much as the Supreme Court has said that where a party does have the opportunity to make a contemporaneous objection and fails to do so, it can’t save the day with a post-verdict motion (in most cases). Sauce for the goose . . .
“Wait! Wait!” says the Commonwealth, “Jacks’ attorney didn’t even raise the issue in his original brief.” True, says the Court, but after being kindly advised of it by the dissent, it was fully briefed for the en banc Court.
Finally the Commonwealth points to the lack of a transcript or statement of facts in the record. A transcript or statement of facts from a proceeding that never took place mind you, as the circuit court acted sua sponte. You can probably guess (well, as you already know the opinion reverses and remands, you don’t have to guess) how that argument went down with the Court.
Unlike the unpublished opinion that leads off this post, I do not expect the Commonwealth to seek further review.
Today’s other published opinion is Justin Thomas Meade v. Commonwealth of Virginia and it’s legally tame in comparison to the others reported above. The examining the car’s engine, Meade noticed that among several people loitering in the parking lot there was an individual armed with a handgun. Meade decided to retrieve his own weapon from the car. The individual, David Wills, then approached Meade and accused him of stealing. The opinion gives no indication that Meade and Wills knew each other or exactly what it was Wills though Meade had stolen.
Although Wills was holding his handgun, he assault Meade with his fists and was soon joined by others who knocked Meade to the ground, hitting and kicking him. During this altercation, a gun (it is not clear whose) went off and the crowd scattered. Meade stood and aimed his gun at Wills, who was fleeing, but Meade was immediate struck by a car. Regaining his feet, Meade pointed his gun at the car that struck him, while Wills took cover behind a parked car and took aim at Meade. Meade fired at Wills, who ducked and then fled to a motel room. Meade fired a second time through the motel room door.
It was this last shot that led to Meade being charged with maliciously shooting into an occupied building. However, it was not the end of the incident, as Wills exited the motel room and shot at Meade, who was attempting to drive away. Wills fired three shots at least one of which struck the car before Meade left the parking lot. Neither Meade, not his passenger who had remained in the car, reported the incident to police and were not cooperative in the subsequent investigation.
Now, dear reader, I am sure that you have as many questions as do I about the recitation of facts in this opinion. What were the people loitering in the motel parking lot doing exactly? Did Meade and Wills have a prior association? What did Wills think Meade had stolen? And why did Meade not want to involve the police when he was clearly more sinned against than sinning?
Well, first lets provide a little more context of the appeal. Meade was also charged with attempted murder, attempted malicious wounding, and related firearm charges, but was acquitted of these. The court emphasized that his was not because it found that Meade was defending himself (though why it found the evidence otherwise lacking is unclear). So on appeal, Meade is left with the single conviction and his assertion of self defense that the circuit court expressly rejected even as to those charges to which it seems to apply more clearly.
Today the Court of Appeals affirms, finding that as Wills had retreated into the motel room (albeit only briefly), Meade was no longer in immediate danger and was not entitled to fire through the closed motel room door. Nor was this verdict inconsistent with his acquittal on the more serious charges because the circuit court expressly stated that it was not doing so based on the claim of self-defense.
Now, as to those nagging questions. Well, I suppose that one cannot really know what was going on in the parking lot . . .but as that parking lot happens to be located in the fair Roanoke Valley from whence I am composing this missive, let me provide some additional context. First, the location of the motel was in an area directly off Interstate 581, the spur that runs from I-81 through downtown Roanoke. I say “was” because it is no longer in business, having been shut down after one too many arrests for various crimes involving drugs and prostitution. (New owners have refurbished the exterior — and I presume the interior — and rebranded, but the area is still not particularly savory). Second, Mr. Wills has a fairly lengthy arrest record with multiple crimes of violence and drug distribution. So does Mr. Meade. Surprised? I didn’t think so.
The Court of Appeals handed down three published decision this week, all in criminal cases. Let’s start with an unusual topic — an appeal limited to a restitution order. Kenny James Slusser v. Commonwealth of Virginia involves a conviction for destruction of property. Slusser torched a house he was renting and was charged with arson. A plea deal reduced the charge to destruction of property. Slusser entered an Alford plea and the order of conviction required him to pay restitution to be determined at a later date.
At the hearing to determine the restitution owed, it was not disputed that the home was assesed at $62,600 and the land at $26,900. No claim of restitution was made for any damage to the land. The Commonwealth submitted evidence of an offer to the property owner from his insurer which the Court describes as “cryptic.” The offer estimated the cost to repair the home, which was a total loss, at $121,652.66, then said, “To make a claim for the Replacement Cost Benefits of your policy, simply return the enclosed Explanation of Building Replacement Cost Benefits form to us, along with the bills for repairs. A payment will then be issued to you for the actual cost of repairs, or $94,503.60, whichever is less. At our option, an inspection of these repairs will be made.” The policy was not admitted into evidence.
The owner decided not to rebuild and the insurance company gave the owner a check for $121,652.66, which was obviously more than $94,503.60. The owner then sold the land with the burned out shell of the house for $55,000. At the hearing, the owner testified that he had a deductible of $2,131. He testified further, however, that he believed he would have been entitled to an additional payment of $94,503.60 from his insurer had he chosen to rebuild, contending that the replacement cost coverage was separate from the hazard insurance cost.
The only evidence offered by the defense was photographs of the home which showed it was in a very run down condition. The description of the home in the opinion suggests that it probably was not habitable in that it lacked cooking facilities. The sole disagreement was whether the owner was entitled to recover the $94,503.60 of “replacement value cost.” The court fashioned a remedy that awarded the owner the replacement value cost less the sales price of the land plus the deductible, or $41,634.60. I will do the math for you . . . the owner was getting $220,418.26 for a property appraised at $89,500.
Slusser appealed and argued that the restitution should have been limited to the deductible because the owner was made whole by the insurance and there was no evidence of the fair market value of the home if it had been rebuilt. The Commonwealth contended that setting of restitution is a matter of discretion and there was no abuse of the court’s discretion.
The Court of Appeals notes that while the primary purpose of restitution is to “make the victim of the crime whole,: it can also be applied to the same purpose as sentencing, that is “deterrence, rehabilitation and retribution.” The Court also agreed with the Commonwealth that this decision is left to the broad discretion of the trial court . . . but not so broad as to permit the excessive recovery here.https://www.vacourts.gov/opinions/opncavwp/0598212.pdf
First the Court notes that even assuming that the owner could have received both the repair cost and the replacement cost had he chosen to rebuild, he did not do so. The record does not establish that the owner was entitled to both benefits and in the absence of the actual policy language, the record simply doesn’t permit the factfinder to assume that an insurer would pay ove $200,000 for the loss of a barely inhabitable, ramshackle building which was not going to be rebuilt. Thus what was actually paid, not what might have been paid, is the correct measure of the the insurance payment as an indicator of true loss. The Court further noted that deducting the price paid for the land, for which no claim had been asserted, did not rest on a sound factual or legal basis. The case is remanded for receipt of additional evidence limited to the fair market value of the property.
Joseph E. Brown v. Commonwealth of Virginia is an appeal from a conviction for abduction. Now to you humble correspondent’s mind, the most creative argument in this appeal is, alas, the one the Court of Appeals would to have been waived. Brown presented four issues — Sufficiency of the Evidence, Legal Justification and two issues related to the alleged conflict of interest of the prosecutor. The abduction arose from a set of facts that might be amusing but for the fact that resisting government authority has, of late, too often resulted in something more serious that a temporary unlawful detention of a government servant.
The government worker in this case was a county official charged with enforcement of zoning matters. The zoning matter was that Brown had an “an excess of inoperable vehicles” in his yard. The worker went to Brown’s home and observed “significantly fewer cars” on the property and then moved on to another property nearby. Brown drove his vehicle to where the worker had parked in such a way as to block her egress from the property, approached her vehicle on the driver’s side and advised her that he was “tired of the county messing with [him].” When the worker responded to Brown’s demand that she tell him why she had been on his property, she gave Brown her business card and asked him to call her at the office to discuss his case later. Brown became irate and demanded that the worker speak to him there. When she asked Brown to move his car he responded “I’m not going to move the car. You’re going to stay here and you’re going to tell me what you’re doing here.”
Both parties called law enforcement, and Brown told the 911 operator that he had “blocked” the worker so that she could not leave. The worker, however, drove through a yard and a drainage ditch and parked on the street to await law enforcement. Brown was charged with abduction.
Brown sought to have the Commonwealth’s Attorney removed from the case alleging that as the victim was a county employee, there was a “financial” conflict of interest. Although the victim was also an assistant county administrator, she testified that she had not role in determining the Commonwealth’s Attorney’s budget, which was approved by the Broad of Supervisors, and on the day in question she was acting in her zoning enforcement role. The circuit court overruled the motion to remove the Commonwealth’s Attorney.
At trial, Brown argued legal justification because he had a right to detain a government employee who had entered his property without legal justification or a search warrant. The circuit court rejected this argument and convicted Brown of abduction. At sentencing, Browns counsel also proffered to the circuit court that a plea offer to disorderly conduct had been offered, but rejected, and that, in his view, it was “horribly abusive” to proceed with a prosecution of a felony after offering a plea to a misdemeanor.
First addressing the sufficiency of the evidence, the Court of Appeals notes that Brown used intimidation to prevent the worker from leaving her vehicle or driving away. The fact that she was able to move the vehicle at a later point does not negate the possibility that prior to that the worker felt that she was unable to leave the scene.
With respect to legal justification the Court finds that the remedy for an unlawful entry onto property under color of government authority is to seek civil damages. Code § 19.2-59. Thus, even assuming that the worker had violated the statute, this did not give rise to a right to detain her for the alleged violation.
Finally, with respect to the alleged prejudice of the Commonwealth’s Attorney prosecuting a case where the victim had a tangential role in the County budgeting process, the circuit court did not abuse its discretion in finding that Brown had not shown sufficient grounds to require removal of the Commonwealth’s Attorney.
Now, as to this very novel argument that a Commonwealth’s Attorney is “horribly abusive” in proceeding to prosecute a felony after the defendant rejects a plea offer of a misdemeanor? Well, I already told you the Court found this was waived — that was because Brown’s counsel did not actually ask the circuit court to do anything about this “horribly abusive” action.
I would have very much liked the Court to address the merits of this, and excuse me for being somewhat judgmental here, PATENTLY RIDICULOUS ARGUMENT. Let us consider for a moment what Brown’s counsel was asserting. If the Commonwealth offers a plea deal to the defendant and the defendant says, “No thanks, I’d rather take my chances at trial,” Brown’s counsel is suggesting that continuing with the prosecution of the original charge is “horribly abusive.” Being charitable, perhaps this attorney was focused on the fact that the offer was for a significantly lesser charge and that this, somehow, was a concession by the Commonwealth that the felony charge was not sustainable. But that’s not at all how plea negotiations work.
I should mention that the defense also made a big deal out of the fact that original charge had not been certified and the Commonwealth then direct indicted — but that happens all the time. The opinion of one General District Court judge notwithstanding (and I will express some surprise that the charge was not certified), and indictment is a valid criminal charge however obtained.
The last published opinion, Jeffery Dale Howard v. Commonwealth of Virginia, falls under the category of traps for the unwary. The underlying facts arise from a very common theme . . . a family gathered for celebration of a (presumably) happy occasion when long simmering difference rear up and ruin the festivities. The happy occasion was the anniversary of the nuptials of Howard and his blushing bride Wendy. I point out here that opinion does a very poor job of identifying Wendy as said bride, but it is a reasonable assumption.
At any rate, apparently Howard got up on the day in question on the proverbial wrong side of the bed. After yelling at the couple’s two children, Howard demanded that the three leave the home. Wendy took the children to a mall, returning to the house sometime later. Howard was not present and when Wendy alter called him to find out what was what, Howard’s mood had not improved. In fact, he threatened to “blow [Wendy’s] car up with [her] in it.” The car in question was regularly driven by Wendy, but leased in Howard’s name only.
Late that night Howard returned home, crashing his car into a tree. Howard forded his way into the home and verbally assaulted Wendy, also spitting on her. The couple’s daughter called 911, saying she was afraid for her mother’s safety. Police eventually arrived, discovered that Howard was, not surprisingly, intoxicated, and arrested him. Howard was charged with assault and battery and threatening to burn or bomb “any means of transportation.”
Howard sought to sever the charges, but the circuit court allowed joinder. Howard then agreed to enter a no contest plea to the assault and battery charged and filed a motion in limine to exclude evidence of the assault from his jury trial on threatening to burn or bomb. The circuit court excluded the 911 call and discussion of the actual assault—the spitting. The court further limited the witnesses’ testimony to “what happened up to this point” and stated that the witnesses could “discuss they called 911 if there was an altercation.”
At trial, Howard objected to the admission of the following: evidence of the daughter’s 911 telephone call; Wendy’s testimony about the evening argument with Howard; Wendy’s testimony about her fear and reactions to Howard’s behavior; Wendy’s testimony about Howard’s gun ownership; the daughter’s testimony about the evening argument between her parents; and her testimony about her belief about and reactions to Howard’s behavior. Now, to my mind, all of this was beyond the circuit’s limitation of the testimony to “what happened up to this point” of the threat, but the court overruled the objections.
Howard moved to trike the evidence, arguing that that he could not be guilty of threatening to burn or bomb his own property, but the circuit court concluded that because the vehicle was leased, Howard did not own it. The jury convicted Howard.
Howard appealed, first assigning error to the decision to permit joinder. And herein is the trap for the unwary. By entering a pleas of no contest to the assault and battery charge, Howard is deemed to have waived any non-jurisdictional errors preceding the entry of the plea even if the plea is not entered as to all charges. Because the decision to join charges is not jurisdictional, Howard cannot challenge the joinder after having pled no contest to one of the joined charges, and then proceeding to trial on the remaining charge. This raises an interesting question of whether the same would hold true in thee court had permitted joinder of three or more charges and the plea had been entered to a single charge, but that is an issue for another day.
With respect to the evidence of the continuing “domestic dispute,” the Court found that is probative value outweighed any prejudicial effect. The gap of four hours between the threat made on the phone and Howard’s return to the home was not sufficient to render the evidence too remote from the threat to not be relevant to establish Howard’s state of mind with respect to the intent behind the threat. The Court further found that none of the evidence admitted was improper evidence of the assault, which the circuit court had excluded, and thus did not constitute bad act evidence. Finally, the Court concluded that the “burn or bomb” statute does not include an element that the property belong to another person, thus the circuit court did not err in concluding that Howard could be convicted of threatening to burn or bomb a vehicle he leased.
The Court of Appeals will hear oral argument for the first time in an appeal filed after the expansion of the Court’s jurisdiction on January 1, 2022. On Tuesday, June 28, 2020, a panel sitting in Norfolk will hear argument in Yo v. Commonwealth, 0035-22. Yo, it’s just “Yo” — like “Prince” and “Cher” — is presently being held under the Civil Commitment of Sexually Violent Predators Act and as both “Yo” and under his birth name of Mario Ballard is a frequent flyer in the Appellate Courts, both with appointed counsel and pro se. In fact, Yo has two pending appeals in the Supreme Court and 25 previous ones and at least 12 previous appeals in the Court of Appeals. So while this is the first “new jurisdiction” case to be heard on its merits, I don’t think it will prove to be a particularly momentous one when the opinion is issued later this summer.
The same panel will hear two additional 2022 appeals, another criminal appeal and an appeal involving a termination of parental rights, both of which also would have fallen under the Court’s more limited jurisdiction. So that Court will not take up a civil case on the merits just yet.
Of course, the Court has already dealt with some 2022 cases. Worley v. Commonwealth, 0004-22, was a bond appeal and likely the first “new jurisdiction” case dealt with as it was dismissed upon a notice of withdrawal or settlement on February 4 of this year. And some civil cases have been dismissed for fatal procedural errors, including one in which your humble correspondent was counsel for the appellee.