Appellate petitions ‘voided’ for vagueness
Fine-tune petitions or face dismissal, court says

By Peter Vieth, Virginia Lawyers Weekly – 8/16/2012

“No more do-overs.”

That’s what one appellate specialist said about last week’s published order from the Court of Appeals of Virginia announcing a dismissal penalty for failing to follow the rules for petitions for appeal.

The court in March had asked lawyers to address whether a 2011 Supreme Court order mandated dismissal when assignments of error lacked sufficient detail under Rule 5A:12. A Court of Appeals panel affirmed Tuesday that the court regards such errors as jurisdictional.

The ruling in  Chatman v. Commonwealth  (VLW 012-7-239) signaled the end of the court’s prior practice of allowing amendments to non-conforming assignments of error after the filing deadline.

“They were giving people what I call a do-over,” said Elwood “Sandy” Sanders of Richmond’s Lantagne Legal Printing.

The three-judge panel held that – under 2010 rule changes – failure to properly set forth assignments of error in a petition deprives the court of jurisdiction and requires dismissal. The previous practice “is no longer permissible,” the court said.

The ruling in the  Chatman  order meant dismissal for three criminal defendants hoping for appellate relief.

Roberto Chatman’s assignments of error failed to include any page reference showing when he objected to trial court rulings.

Donte Brooks did include page references to his preservation of errors, but they were expansive – he cited to the entire hearing on a motion to suppress and to the entire trial transcript on a sufficiency claim. The majority said such broad citations would require something “akin to a scavenger hunt” for the court to locate the purported error.

Steve Whitt’s assignment of error claimed his conviction was “based upon insufficient evidence as a matter of law.”

Without more, the court held, Whitt’s lawyer essentially invited the court to “delve into the record and winnow the chaff from the wheat.”

Judge Larry G. Elder dissented on the need to dismiss for “minor” petition deficiencies. “I believe a more lenient interpretation of the Rules better serves public policy,” he wrote. He favored giving appellants a chance to fix their briefs, in order to avoid additional requests for delayed appeals.

Elder did not dissent in a separate published order kicking a fourth criminal appeal in  Coleman v. Commonwealth (VLW 012-7-240). In  Coleman,  the panel said it was “powerless” to hear an assignment of error that argued a different legal basis than the one asserted at trial.

“In a sense, that’s old news,” Sanders said, as the dismissal was consistent with the court’s earlier practice.

Dismissing the  Chatman  appeals is an “extraordinary step,” according to appellate lawyer L. Steven Emmert of Virginia Beach. “The 2010 rule changes were designed to make the rules, and the appellate system, more user-friendly. How did this train jump the tracks?” he queried in online comments.

Emmert said the Supreme Court may have overstepped its limits by defining its own jurisdictional limits, a role intended for the legislature.

Sanders suggested the Supreme Court probably will get a chance to examine the case on appeal.

In the meantime, the  Chatman  order “puts the court-appointed attorney in a pretty significant bind,” said Cate B. Simpson with Counsel Press, another Richmond-based brief printing company. She said the Supreme Court is no longer reimbursing court-appointed lawyers for printing services for petitions for appeal. That means it’s harder to get a second set of eyes to review a petition.

“I think the most important thing is to have someone look at it – especially for those who don’t do it all the time,” Simpson said.

“If you don’t do a lot of these, it can be hard to navigate,” agreed Cameron W. Gilbert, also with Counsel Press.

“Everybody who does appeals is going to have to pick up the rule book,” Sanders said. He said one possible effect of the court’s new found rigidity might be to drive more business to lawyers who focus their practice on appellate work. “It is becoming a specialized area of the law,” he said.