Time for another patented rant.
There have been a number of news stories dealing with Virginia politics and politicians that have raised my hackles lately. [Ed. Note: the phrase “raise my hackles” refers to hairs or a ruff of fur on the back of an animal’s neck that raises when the animal is alerted to danger or is preparing to attack. Humans have the same response, its just not particularly noticeable.]
The first involved Victoria Manning, a member of the Virginia Beach School Board and recently appointed member of Governor Glenn Younkin’s education working group. Manning shared a Facebook post weighing in on the school division’s ESL program:
VB Schools has 300 additional ESL students in the past year. Most are from south america [sic]. Our ESL budget has increased over $1 million in 2 years. Continuing to educate South Americans is not sustainable.
Let’s start with the fact that ESL education is required by federal and state law and receives significant funding from both the federal and state governments. The $1,000,000 figure Manning cited was the total increase of ESL designated funds, but only $166,000 of that was from local support — meaning that 83% came from federal and state funding. Moreover, ESL spending accounts for less than 1% of Virginia Beach’s school budget, which for this year is expected to exceed $1 billion dollars, an overall increase of over 10% from last year, with the increase in ESL expenditures representing less than 1% of the increase, and, again, 83% of that was not local money — so Manning is complaining about 0.017% of the total budget. Granted, when you’re talking a billion dollars, that’s still a lot of money which theoretically could be spent on other things. Except, of course that if Virginia Beach decided to defy the law, it would lose almost 60 times the amount of local money that would be freed up in federal and state aid — because it would lose all of the ESL funding, not just the $834,000 of new funding. While that money does go to support ESL programs and teachers, it also contributes to the overall budget in other ways.
Second, ESL students make up 3% of the district’s students, about 1,700 students. Manning refers to ESL students as coming mostly from “[S]outh [A]merica,” but what she meant was “countries south of the US border with Mexico,” as the ESL students are coming primarily from Mexico (which is in North America) and Central America (most of which is also geologically in North America), and the Caribbean — but, as the local chair of the Chamber of Commerce (a well-know leftist organization <– sarcasm, for those who can no longer tell) pointed out, the schools are not educating “South Americans,” but residents of Virginia Beach.
Another critic pointed out that many ESL students are not Spanish-speakers, but come from other non-English speaking countries as is common with many urban areas with large naval installations. Indeed, the Virginia Beach Schools website says that there are over 70 different languages spoken by ESL students.
In response to the controversy, Manning shared a statement explaining that her words were twisted and she did not intend to cause any harm. The primary harm she caused was being removed from the Governor’s working group.
The next story that set my neck hairs on end involved Governor Youngkin’s first veto. The bill would have authorized Arlington County to employ an independent policing auditor selected by the Board of Supervisors, rather than the County Manager. Arlington is, because of an historical oddity in its charter, the only County that requires state permission for its elected board to make direct hires of this nature. The County will still have an independent auditor, just one hired by the County Manager. The auditor will act under the direction of a civilian oversite board. Youngkin said in his veto statement that
The best way to ensure that any bad actors within law enforcement are held accountable is to stand up for law enforcement, not tear them down or subject them to politically-motivated inquiries.
It seems that the only “political motivation” in this incident is the Republican Governor denying a Democrat-dominated county the same authority to oversee police as is afforded to every other City and County in the Commonwealth. Contrary to the implication of his statement, his veto does nothing to “stand up for law enforcement,” it simply denies the Board the direct authority to hire the independent auditor, but the job will still be filled.
Like so many actions by politicians, the Governor has used a nearly meaningless act to portray himself in a favorable light to his base. “I stand up for law enforcement!”,” he will proclaim. “I kept the anti-police Arlington Board of Supervisors from hiring a political witch hunter!” But the county manager, who is answerable to the Board, will still hire the auditor and still have a civilian board of “witch hunters” to review complaints against the County Police Department — a move which the department supports.
In a similar vein, since the “cross-over day,” the day when the Virginia General Assembly’s Senate and House are supposed to have completed work on bills introduced in their respective chambers and start working on the bills from the other chamber, there have been a slew of stories about the House (GOP-controlled) or the Senate (Democrat-controlled) “killing” some or another piece of legislation from the other chamber. Invariably, these are bills that the sponsors knew with absolute certainty would fail in the other chamber because the issue was an issue which was favored by the extreme wing of the sponsor’s party (and often not even by a majority of his or her constituents).
Most, if not all, of these bills were introduced to fulfill a campaign promise. None where the object of any effort to seek passage by the other body, and were mostly passed in the sponsor’s chambers on party-line votes. In short, these bills had nothing to do with governing, and everything to do with politics and, more specifically, the ability to fundraise by demonizing the “obstruction” of the other party — “We must capture the Senate!” “Help me turn the House Blue again!”
How did this Commonwealth and the nation get to the point that compromise became an impossibility? Many of the bills addressed issues of legitimate concern to many in the Commonwealth, but now no action will be taken because each part has taken an all or nothing approach to their agendas.
I am reminded of a story told about Ronald Reagan and Tip O’Neil. The two would frequently meet in Reagan’s private office in the Old EOB in the evening — this was in the days before the 24-hour news cycle, so “a lid” had already been called on the days news. The President and Speaker would sit in arm chairs and “discuss” some issue then before the Congress until each was red-faced and exhausted. Then one of them would tell an Irish joke, they would both laugh, and then decide what to do about the issue.
End of rant.
Just over 13 months ago I started this Blawg and one of the first posts involved an unpublished opinion which was worthy of a mention because it demonstrated a trap for the unwary when timing the filing of transcripts. At the end of the post, I noted that the appellant was likely due a delayed appeal. Today’s one published opinion from the Court of Appeals now addresses the merits of the appeal that was previously ruled to be procedurally barred. As Yogi says, “It’s like déjà vu all over again.”
[Editor’s note: Yogi Berra famously titled one of his memoirs The Yogi Book: I Really Didn’t Say Everything I Said, but this quote is a true Yogi-ism. Berra explained that it originated when he witnessed Mickey Mantle and Roger Maris repeatedly hitting back-to-back home runs in the Yankees’ seasons in the early 1960s. Another famous Yogi-ism, “When you come to a fork in the road, take it,” was actually an accurate statement. Yogi was giving catcher Joe Garagiola directions to Berra’s home in rural New Jersey; it didn’t matter which of the two routes one followed from the fork in the road, as they both eventually led to the house. Opening day, BTW, is March 31.]
Before we get to the opinion, let’s consider the process that brought the case back to the Court of Appeals. One might ask why, if the Court was certain to allow the delayed appeal, it did not simply address the merits of the case last year? I could wax eloquent on the need to follow proper procedure or simply observe that “this is how the statute requires it to be done,” but the truth is there is no real reason why the appellate Courts couldn’t do this in criminal cases where the appellant is at no fault for his attorney’s error — except that this would then remove any incentive for the attorney to get it right — and with 20-25% of all appeals still being dismissed on procedural grounds, removing incentives to do the job right is not the direction to go.
Attorneys who make procedural errors in criminal appeals are subject to “attorney in error” reports from the appellate courts to the State Bar. Depending on the severity of the errors and their frequency — and, yes, there are many repeat offenders — these reports can result in disciplinary action up to and including revocation of the attorney’s license. But even with this potential consequence, the errors continue.
Is this “fair” to the defendant, especially if the attorney is court-appointed and, therefore, not really of the defendant’s choosing? No, of course it isn’t. Even if he is out on bond pending the appeal, the defendant still has the anxiety of the continuing process and uncertainty about his future. But the alternative would be equally unfair in that it is reasonable to assume that allowing a procedurally defective appeal might frequently result in the defendant having an obviously slack attorney representing him on the merits — after all, if the attorney can’t follow the rules of procedure to perfect the appeal, how likely is it that he did a good job on the merit argument?
This brings us to the appeal of Anthony Andre’s Mackey v. Commonwealth of Virginia. Mackey was indicted under Code § 18.2-374.3(C), which prohibits the use of a communications system to solicit, with lascivious intent, a person the accused knows or believes to be younger than fifteen years old. At the conclusion of a bench trial in the Circuit Court for Rockbridge County, the trial court found “some ambiguity in the victim’s testimony about whether she told [appellant] she was fifteen or about to be fifteen.” Accordingly, the trial court decided not to convict appellant as charged but instead convicted him of violating Code § 18.2-374.3(D), explaining that it “is the same offense [but] requires an age of at[] least fifteen but younger than eighteen.”
The procedural kerfuffle that led to the first appeal being dismissed resulted from a post-verdict motion arguing that the offense of conviction was not a lesser offense of the indicted offense, or that the change in the charge was otherwise an improper amendment to the original indictment. The trial court overruled the motion. If you are interested in the procedural kerfuffle, I refer you back to the earlier post linked above. For purposes of this post, we can simply proceed to the Court of Appeals’ resolution of the merits.
The Court of Appeals first addresses the Commonwealth’s assertion that the objection was untimely because it was raised in a post-verdict motion. This is one of those issues that vexes appellate attorneys, especially if they have been around long enough to remember when preservation by a post-verdict motion was generally considered sufficient for any issues arising, as this one did, after the presentation of the all the evidence and summations. If the court had convicted Mackey for the original charge and the post-verdict motion had been to challenge whether the evidence showed that the victim was under 15, that objection would undoubtedly have been ruled as not timely. But here, the Court of Appeals finds that the judge’s decision to change the offense was a “ruling” addressing the lesser included offense to which the motion to reconsider was a timely response.
The Court also finds that Mackey’s argument regarding the improper amendment of the indictment is not barred because there was no ruling on this prior to the verdict. Rather, it was raised in the post-verdict motion for the first time and addressed by the trial court. Therefore, it is proper for the appellate court to review whether the trial court erred in not setting aside the verdict on this ground.
The Court first addresses whether the offense of conviction was a lesser included offense of the indicted offense and finds that it was not. To be a lesser included offense, a crime must have no element different from that of the offense charged. While it can have fewer than all the elements (for example, battery is a lesser offense of aggravated battery because it has all the same elements except for the “aggravated” level of the offense), it cannot have an element that the other crime does not. Here, an element of the crime charged was that the victim be under the age of 15, while the crime of conviction required proof the victim was at least 15 but under the age of 18.
If you are scratching your head over how the crime of conviction is not a lesser offense, you need to be aware of the rule of lenity which requires the courts to construe penal statutes strictly against the Commonwealth as written without ignoring any words. Had the statute simple required proof that the victim was under 18, it would have been a lesser included offense of a statute that required proof that the victim was under 15. But as worded, the statute requires proof that the victim is at least 15, which is a separate issue of proof. If the charge is under subsection D and the evidence shows that the victim was 14 and 360 days, the defendant cannot be guilty of that offense.
As to the argument that the trial court improperly amended the charge, the Court of Appeals agrees that trial courts generally have the authority to make the charge conform to the evidence. But, the Court notes, this authority is not absolute. Moreover, the trial court must follow specific procedures for amending an indictment, which were not followed here. Thus, even if the court intended to amend the indictment (and, the Court notes, it never expressly said that it was doing so), the failure to follow the procedure required by statute means that any such error was not harmless.
So, despite the year and a month delay due to the procedural defect in his original appeal, Mr. Mackey gets his day in appellate court and comes away with a reversal and dismissal of the charges against him. I would not be surprised to see a Commonwealth’s appeal in this case, as it is likely to want a review both of the preservation of the argument and the determination that subsection D is not a lesser included offense.
In the Virginia Mercury today, Ned Oliver reports that Attorney General Jason Miyares wants 75 new positions to handle an “unexpected” upturn in criminal appeals to the Court of Appeals under the appeal of right law. Under the new law, the AG’s office represents the Commonwealth in all criminal appeals. In January, 300 appeals were assigned to the Criminal Appellate Division — this includes both appeals that were pending at the writ stage on January 1 and newly filed appeals, though probably very few of those were ready for assignment to the AG as they would not yet have had records transferred from the circuit court.
Now within the appellate bar, there was much debate as to whether the new “appeal of right” process would result in more civil cases being appealed. The general consensus was, however, that criminal appeals would not see a significant uptick. There were good reasons to think this, and they still apply. First, most criminal cases are resolved by plea agreements that include an express waiver of the right of appeal. Of those cases that do proceed to trial or that are based on an “Alford plea,” which reserved the right of appeal, most of the defendants are indigent and, thus, there is no financial bar to their seeking an appeal — the state provides for the costs of the attorney and preparing the record (charging the defendant only of the conviction is affirmed).
What has changed is that now all appeals in criminal cases will go directly the the Attorney General. Previously, the first stage of the appeal was handled by the Commonwealth’s Attorney, and the AG got involved only if an appeal was granted, which was in only about 20% of the appeals. Therefore, there is an obvious solution to the AG’s complaint — Have the Commonwealth’s Attorneys’ Offices represent the Commonwealth in the Court of Appeals. While the Commonwealth’s Attorneys have always considered having to respond to appeals to be a burden, it is a burden that is shared by most court appointed attorneys and public defenders. Moreover, the extra funding that the AG is seeking for his office could be directed to the Commonwealth’s Attorneys’ Offices the hire an extra Assistant Commonwealth’s Attorney to help cover the appeals.
End of Rant.