ANALYSIS OF OCTOBER 7, 2008 CAV OPINIONS

 

[Posted October 7, 2008]  There’s a published opinion today from the Court of Appeals that should serve to wake up a lot of trial lawyers across the Commonwealth.  It’s Singleton v. Commonwealth , and the defendant is none other than a lawyer.  His sin?  Telling his client that he had arranged with the prosecutor to continue the trial of a DUI charge.

 

Both criminal defense lawyers and prosecutors have seen this situation a gazillion times before.  The prosecutor’s phone rings, and it’s a defense lawyer calling.  “Hey, Bill, it’s John Jones.  I’ve been retained to represent William Johnson on his DUI charge next Tuesday.  I have to be in another court that day, and I wonder if we could continue it for a couple of weeks.”  “No problem, John; how about July 12?”  “Great.  I’ll prepare a continuance order and send it over.  I really appreciate this, Bill.”  “See you on the 12th, John.”

 

As a former municipal attorney who handled his share of DUI prosecutions, I can confirm that this conversation occurs many times every day across the state; it’s routine practice, and unless the defense lawyer is a serial continuance abuser, you say yes out of professional courtesy.  That happened in this instance, and the prosecutor and defense lawyer both endorsed an order setting the new trial date.

 

On the originally scheduled trial date, when the case is called, the prosecutor tells the judge about the agreement for the new date, and tenders the consent order.  At this point, this lazy daydream of a legal story turns into a nightmare, as the trial judge looks at the order, and refuses to enter it.  “Where’s Mr. Singleton?” he asks the prosecutor.  The prosecutor, no doubt taken aback, probably says something like, “He’s not here, your Honor.”  “I can see that,” comes the probable reply.  “Where’s his client?”  “He’s not here, either.  We agreed upon this continuance, so he probably told the client he didn’t have to come.”  In fact, the defense lawyer had done exactly that, telling his client to be sure to appear on the new trial date.

 

The next time the case came into court, the judge quizzed the lawyer on his whereabouts on the previous hearing date.  Upon being pressed by the judge to explain his actions, the lawyer responded with what I took (from the cold transcript, admittedly an imperfect medium to convey the nuances of speech) to be commendable candor and humility.  He acknowledged that he had no authority to change the trial date without a court order, but thought that the order had been entered, and felt that this practice was the ordinary course of business for traffic defense.  For his candor (well, really it was for not showing up in the first place), he got slapped with a contempt conviction.

 

The attorney raises two issues on appeal.  One is that the evidence wasn’t sufficient to convict him, since there was no proof that he acted with contumacious intent.  The Court of Appeals rejects this argument, finding it “unpersuasive” in light of the clear delegation to the judiciary, not to the bar, of the power to set trial dates.  It cites cases from Virginia and elsewhere that lead to the conclusion that a lawyer who doesn’t show up for court without a good excuse is guilty of contempt of that court.  That’s because when a court enters an order setting a trial date, it “implicitly orders counsel of record to appear on the date and at the time scheduled.”  The lawyer’s action in directing his client not to appear “deprived the court of the opportunity to exercise . . . judicial discretion” in deciding whether or not to grant a continuance.

 

The lawyer’s second argument is that this on-the-spot finding of contempt deprived him of procedural safeguards, including advance notice of the charge, and the right to have an attorney and a jury trial.  Unfortunately, even lawyers are not immune from Rule 5A:18 ; nor are they more likely to remember the contemporaneous objection rule when facing charges themselves.  The court finds this argument to be procedurally defaulted, since it had not been raised below, so it never reaches the merits of the issue.

 

In my opinion, this case may well have the same sort of shock-wave effect on traffic and criminal court practice, including appeals of such courts’ decisions to circuit court, as have the recent John Crane v. Jones and Ford Motor Company v. Benitez decisions in the fields of experts’ disclosures and sanctions.  I heartily believe that some of the current interpretations of JohnCrane and Benitez are overreactions by lawyers and judges who mistakenly view those two cases too broadly.  And perhaps the Singleton ruling today will stand out for an analogous reason – I simply cannot envision many judges taking the same hard line as the trial court did in this case, where a continuance of a criminal case is agreed.  This is not to find fault with the appellate ruling; it’s entirely correct on the law.  But if judges were to take this to heart, and decide to exercise strong control over even consent continuances, then at a minimum, the parking lots at courthouses are going to get a lot more crowded.  So are the dockets.

 

There is a second criminal decision today; a very short ruling in Bowden v. Commonwealth that establishes that aggravated sexual battery is not a lesser included offense of forcible sodomy.  The analysis of this issue is simple:  Aggravated sexual battery requires proof of an element (intent to molest, arouse, or gratify) that the general-intent crime of forcible sodomy does not.  As such it cannot meet the test of a lesser included offense under the Blockburger line of cases, so the conviction is reversed.

 

There are two interesting side issues here.  First, the Commonwealth conceded error in the case, acknowledging the distinction I described above.  But the court performs its own analysis, observing in a footnote that concessions of law made on appeal are not binding on the court.  Second, the Commonwealth asked the appellate court to rule that the reversal would be without prejudice to its right to reindict Bowden if it were so inclined.  The Court of Appeals declines this request, since it asks for an advisory opinion on whether a separate sexual battery prosecution would constitute double jeopardy.  That issue will get its first airing in the trial court, assuming (as I think is safe) that the prosecution decides to press on.