(Posted October 19, 2017) The Supreme Court of Virginia hands down a single published opinion today, in an appeal involving a DUI-3rd conviction. Before I jump into the analysis, I’ll pause to mention that today is one of the signal anniversaries in our nation’s history. On this date in 1781, Colonial forces under George Washington accepted the surrender of the British army at Yorktown. Most people don’t know this, but the war continued to rage on for another year-plus before the Treaty of Paris ended the conflict in 1783. A great many soldiers on both sides perished after Yorktown.

Even so, most Americans perceive the Yorktown surrender as the climactic event of the war. It took on added significance for me when I discovered that at least one of my ancestors was present at the surrender: Jasper Cather, an immigrant from Ulster, served in the Virginia militia. He was my great-great-great-great-great-grandfather, and is my common ancestor with the author Willa Cather. October 19, 1781 must have been one of the greatest days of Jasper’s life.


Criminal law

The Court of Appeals of Virginia doesn’t overturn many criminal convictions, but last year it gave one appellant at least partial succor. We learn today in Commonwealth v. Leonard that that relief is short-lived.

Leonard had what we would agree was a bad stretch several years ago. He pleaded guilty to DUI charges here in Virginia Beach in 2010 and 2012. Just two weeks after the second incident, and before the second conviction, he drove drunk yet again; fortunately, the only victim was a mailbox. Police caught him in less than an hour.

At trial in circuit court on a DUI-3rd charge, the prosecutor handed up certified copies of the two previous convictions, both of which were based on guilty pleas. Leonard objected to the use of the 2010 conviction, claiming that at most he could be convicted of DUI-2nd. Here’s why:

When his second DUI charge – remember, that’s the one before this one – came for trial in GDC, Leonard succeeded in convincing the judge that his first guilty plea was invalid because he hadn’t been advised of his constitutional rights. That judge convicted him of a second DUI-1st offense. That conviction was later confirmed on appeal to circuit court. Leonard claimed that the invalidity of the first conviction was judicially established, so the prosecution was collaterally estopped from using it in this third case.

The learned trial judge wouldn’t bite for that, convicting Leonard of DUI-3rd while stating on the record that Leonard was “not credible at all.” (This is what we in the legal profession call “a bad sign.”) But Leonard had better luck in the CAV, obtaining a unanimous panel ruling that remanded the case for resentencing for DUI-2nd.

Since Leonard succeeded in the Court of Appeals, that gave the Commonwealth the right to appeal on to the Supreme Court. Today the justices unanimously reinstate the DUI-3rd conviction and sentence. Justice McClanahan’s opinion notes that, in criminal cases, collateral estoppel applies to findings of fact, not law. And the resolution of constitutional questions is a matter of law.

There’s more, and the hair-splitting involved will be scary even to appellate practitioners. The justices find that Leonard’s trial-court objection bars consideration of what he tries to argue on appeal. Behold:

Leonard did not argue in the trial court that the 2010 DUI conviction order was inadmissible because he was not advised of his rights prior to entering his guilty plea in the 2010 proceeding. Instead, he argued that the 2010 DUI conviction order was inadmissible in this case because it was ruled inadmissible in the 2012 proceeding.

That, in my view, is a very fine distinction. Even so, I agree that the Supreme Court got this decision right. Issues of law had better not be subject to collateral estoppel, or else individuals will have their own private set of laws, applying only to them.

There’s one interesting argument that remains on the table and will have to be adjudicated another day. The Commonwealth argued that the 2012 decision by the GDC judge, holding that the 2010 conviction couldn’t be used for recidivist purposes, was wiped out when Leonard appealed his second DUI conviction on to circuit court and got a trial de novo. The justices find it unnecessary to reach this argument, given today’s ruling.

I’ll add one last observation. This case took a long time to get to final decision in the Supreme Court. Here’s the remarkable timeline:

March 26, 2012 – Date of offense and arrest

June 4, 2012 – Grand jury indicts Leonard

April 22, 2013 – Bench trial (there had been four previous continuances)

October 22, 2013 – Sentencing (this is final judgment in a criminal case)

March 20, 2015 – CAV receives notice of appeal (Really? A year and a half?)

June 24, 2015 – CAV receives the record from the trial court (ditto)

September 29, 2015 – Writ granted by a single CAV judge

April 26, 2016 – CAV’s published opinion

May 24, 2016 – CAV denies en banc review

June 21, 2016 – Commonwealth notes an appeal

October 26, 2016 – SCV grants Commonwealth a writ

April 18, 2017 – SCV oral argument

October 19, 2017 – SCV opinion

The only explanation I can conceive for the 17-month delay between sentencing and notice of appeal is that there may have been an order allowing a delayed appeal. It has also, my careful readers will have noticed, been six months since the justices heard oral argument here.


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But let’s not stop there. In addition to the one published opinion, the justices decide three appeals by unpublished orders. Let’s take a quick peek at those, at least to see what the rulings are.


In Hunter v. Thomas, the justices reverse a defense verdict in a personal-injury case and remand it for retrial. The assignments of error included the intriguing question whether a trial court can instruct a jury on simple negligence where the complaint alleges only gross negligence. The court leaves this issue, too, for another day, ruling instead that under the peculiar circumstances of this case (and they really are peculiar; trust me), the trial court should have granted the plaintiff’s motion (made during the trial) for leave to amend her pleading to include a simple-negligence claim.

I’ll add a note of warning here: Don’t assume that this means that any party automatically has a right to amend during trial. This ruling turns on a concession by the defense lawyer that led the justices to conclude that he wouldn’t have been prejudiced by the amendment. This is still a matter of the trial judge’s discretion. The noteworthy feature of this ruling is that the court today rules that the right to liberal amendments in Rule 1:8 constrains that discretion in this case.


Atkins v. A. H. Electric Contractors, Inc. stems from a mechanic’s-lien suit by a contractor who claimed that a homeowner hadn’t paid for repairs. It eventually morphed into a suit by the contractor to enforce a settlement agreement. The justices reverse a trial court’s decision to order the parties to renegotiate a settlement agreement. The original agreement had called for a third party to appraise needed repairs, but that third party declined to cooperate.

The justices rule today that the trial court erroneously ordered specific performance of a contract that still had an unfulfilled condition precedent; that claim is dismissed with prejudice. Today’s ruling also reinstates the homeowner’s counterclaim for trial. This case, too, also features an interesting but unadjudicated appellate issue: The homeowner asserted that the contractor didn’t have a license at the time it performed work, and claimed that that fact barred the suit. The justices consign this issue to the trial court for adjudication in trying the counterclaim.

One final point: The contractor didn’t file an appellate brief, so it wasn’t allowed to argue on appeal. That had to enhance the homeowner’s chances just a tad.


Finally, the justices reverse a criminal judgment and send the case back for resentencing based on impermissible contact with a juror, in Opaletta v. Commonwealth. The appellant raised two issues, one of which dies a familiar death: His lawyer waited too late to move for a mistrial due to the mistaken inclusion of a withdrawn charge in the jury instructions. When the mistake was discovered and the court admonished the jury to ignore it, the lawyer told the judge, “I’ll reserve my motion.” The jury then retired to resume deliberations, at which point the lawyer made the motion. That’s too late; once the jury-room door closes, objections like this are waived.

The defendant has better luck with his second assignment, involving a private conversation between the foreperson and the bailiff. This came to light only after the court had dismissed the jury. When the issue arose, the bailiff blurted out a description of the conversation, at which point the judge peremptorily announced, “I’m not granting a mistrial.”

Well, now. The defense lawyer never got around to moving for a mistrial, but the justices rule that this issue was preserved for review anyway. That’s because, under specific statutory language, the contemporaneous-objection rule can’t bite you if you have “no opportunity to object.” Since the jury was already gone, there was no way to timely correct what happened, and the judge’s announcement convinces the justices that he knew perfectly well what the motion would be.

The Supreme Court notes that in evaluating this issue, the Court of Appeals concluded that this second issue was harmless error, but the CAV used the wrong standard in doing so. This issue is of constitutional significance, since it impairs the Sixth Amendment right to counsel; that kind of mistake is presumptively prejudicial. The court thus remands the case for a new trial, limited to sentencing.