I send a lot of emails. I don’t mean that I personally send a lot to friends and family — my output in that region is pretty slim as we stay in touch via phone and zoom and social media. I also don’t mean that I send a lot of emails in my professional capacity either; given that my practice is very limited and does not require a great deal of back and forth, I probably send fewer emails than the average attorney. Nonetheless, I send a lot of emails, perhaps as many as 50,000 a month. That’s because I have an unofficial role within the legal community promoting events like CLEs and law-related activities. Just today I sent about 600 emails to the local bar in the Roanoke Valley seeking volunteers for a “Wills for Veterans” event. Let me assure you that I am not a “SPAMMER” — these emails go to people who know they are coming and who know how to politely tell me (or actually, tell the list managing website I use) to take a hike and I always honor those requests (and not just because its the law),
So what’s the point of bringing up this topic? It’s because when you send a lot of emails you get a lot of automated replies and lately I’ve notice that a larger number than usual of these are informing that the attorney in question is no longer at that email address. Among the 600 or so emails I sent out just now, at least a dozen bounced back as “sorry, not here anymore.” Some had forwarding information advising that the attorney had moved to a different position, while most did not. I am not including among these the “dead” email address that are reported as not found, so these are attorneys whose former firms/offices are still going concerns, just without them being there.
Now, I am going to go out on a limb here and speculate that this may have something to do with the Pandemic. My theory is that the musical chairs among law firms and other offices (one firm I noted lost three attorneys, two to a different firm and one to public service) resulted from people either not adapting to the restrictions placed by the higher ups — either not allowing remote working or requiring it — or by simply having time to contemplate their position in life due to the enforced isolation. My own decision to retire from civil service was not entirely to do with the Pandemic, but it certainly was a factor in deciding to stay home for an extended period before venturing back tentatively into the working world.
Today the Court of Appeals released one published opinion. The question to my mind is “Why?” Richard Roosevelt Hill v. Commonwealth of Virginia addresses what I thought was an issue of settled law – whether a circuit court retains jurisdiction to revoke a suspended sentence for violation of the terms of probation until the period of probation ends. Well, the answer is it does, despite the creative effort of Hill’s attorney to assert that a court can have jurisdiction over a probation violation, but lack jurisdiction to do anything about it.
For those unfamiliar with the criminal process, allow me to provide a brief explanation. When a court imposes a criminal sentence it often (but not always) suspends all or a portion of the sentence. In doing so, it will usually impose terms on the defendant, which must be followed — this what we usually thing of a “probation.” When a defendant fails to abide by the terms, the probation office can inform the Commonwealth, which can issue a show cause requiring the defendant to court and, if the court finds a violation has occurred, it can revoke the suspended sentence and send the defendant off to the iron-bar hotel (typically, courts will resuspend a portion of the sentence or sometimes simply give the defendant a strong admonition to return to the straight and narrow). A famous judge of the Roanoke Valley called this the “‘splain why docket” as in “‘splain why I shouldn’t send you back to jail.”
In Hill’s case, he was convicted in March of 2015 of attempted unlawful wounding and sentenced to 3 years with all but six months suspended. He was also placed on supervised probation for three years from the date released from confinement, which turned out to be December 16, 2016. Wait. What? How did a six months to serve stretch into more than a year-and-half? Well, it so happens that Hill had already “served” his six months while awaiting trial and, had in fact been released from jail a week before his sentencing. Released, however, is not quite accurate, because he was turned over to federal authorities to serve a sentence imposed in another case (the opinion does not provide details).
After his release from federal prison, Hill ran afoul of the terms of his probation in 2018 before the three years were up and was sent back to jail for another year (leaving one-and-a-half years still suspended) and was placed on probation for two years after his release. Hill got out again and violated the terms of his probation again in 2020. This time the court ordered Hill to serve the remaining full stretch – 18 months.
Well, Hill was having none of that, because, applying what the Court of Appeals refers to as a “creative interpretation” of the original sentencing order, in Hill’s view the term of suspension was shorter than the term of probation. Hill argued in the circuit court and again in the Court of Appeals that the three years term of probation began to run on the date of the order, not the date of his release from the federal poky. Moreover, he contended that the order failed to state the length of the period suspension (that is, for how long the two-and-a-half years of the suspended sentence would be hanging over his head). Hill is technically correct that the length of the probation and the length of the suspension are not necessarily concurrent (and if not expressly stated, the length of the suspension is set by statute). Because the 2015 order was silent as to the latter and the 2018 order likewise did not expressly state an additional period of suspension in addition to the additional period of probation, by the time of his 2020 violation of probation, Hill contended that the period of suspension had ended (actually back in 2018 while he was serving the additional year).
Reviewing the statutory authority of circuit courts to suspend sentences and impose terms of probation, the Court of Appeals rejects Hill’s “novel argument” by finding that the 2018 order plainly extended the time of probation and, therefore, the time of suspension as well. The Court also rejected Hill’s assertion that the 2015 order went into effect on being entered and not upon his release from federal custody but noted that this did not impact its analysis of the issue since the 2018 order was timely under either theory.
Now here is where we reach the “why publish” part of the opinion. In its concluding section of analysis, the Court notes that it is settled law that “[t]o be effective, probation must be concurrent with a coordinate term of suspension of sentence. Hartless v. Commonwealth, 29 Va. App. 172, 175 (1999).” This is so because “[p]robation [is] meaningless if no sentence remain[s] for the court to impose if the defendant violate[s] the terms imposed.” Leitao v. Commonwealth, 39 Va. App. 435 (2002).
So why did the Court publish this case if the issue raised was already a matter of settled law? Well, there could be several reasons. Let’s start with the process for deciding whether to publish a decision. In the Court of Appeals, the panel decides whether to publish, and usually the “writing judge” will make the call. So, Judge Humphries, writing for Chief Judge Decker and Judge AtLee, may have simply thought that it was time to reiterate the rule. It is also possible that the panel was of opinion that the case was sufficiently different from prior precedent because it relied on the combination of Hartless and Leitao. This is the more likely reason, as the Court noted that there was a prior unpublished opinion that address a nearly identical set of fact – so with the possibility that the “novel argument” would make another appearance, the Court wanted to be sure there was a published opinion addressing it.
The Supreme Court of Virginia released one published opinion this morning. White v. Llewellyn is an interesting read if you find fraudulent conveyances of real estate interesting — I do, because it one of the few areas of the law where a prima facie case gives rise to a de jure presumption benefiting the plaintiff and, thus, the burden of production and persuasion shifts to the defendant (in most cases, the burden of persuasion always remains with the plaintiff). I will not delve into the details, leaving that to the more capable prose of Steve Emmert. However, I did want to take exception with one point in the opinion, authored by Justice Goodwyn for a unanimous court, and that is the final sentence which reads, “Thus, for the reasons stated, we will reverse the judgment of the circuit court and remand this case for further proceedings not inconsistent with this opinion.” . . . not inconsistent? English, unlike most Romance and Oriental languages, considers a double negative to reverse, rather than emphasize, the speaker’s/writer’s meaning.
I was a bit surprised to see Justice Goodwyn employ this phrasing when “consistent with this opinion” would seem to convey the same meaning. I was even more surprised when a text search of Supreme Court of Virginia opinions revealed that “not inconsistent with this opinion” (or sometimes “not inconsistent with the views expressed” or a similar phrase) has been used 179 times by the Court. While “consistent with this opinion” or similar wording has been used 743 times, that’s still a 19.5% usage of the double negative.
While I have the inclination to delve deeper into whether there is some significance to when the Court uses the straight positive as opposed to the “double negative” positive, alas I have not the time. Instead, dear reader, I shall leave you with this old chestnut: At an academic conference of linguists, a speaker was remarking on the unusual nature of the English double negative rendering a positive when Romance Languages consistently treat a double negative as emphatic. The speaker noted further that there was no example of any language in which a double positive was treated as a negative. At which point a voice from the back of the auditorium called “Yeah, Sure!”