DÉJÀ VU: APPELLATE LANDMINE EXPLODES TWICE

[Posted March 17, 2007] The process of composing this essay is not a pleasant one.

Anyone who reads Rule 5:17 carefully will detect a number of landmines, any of which can detonate and destroy an appeal. The most widely cited is the provision in subpart (c) for assignments of error. The rule requires appellants, in a separate section, to “list the specific errors in the rulings below upon which the appellant intends to rely.” This requirement sometimes trips up appellants who have first visited the Court of Appeals (such as, for instance, criminal cases), where the rules require questions presented, not assignments of error. In those instances, appellants who simply re-process their CAV petitions, but don’t add assignments of error, will find their stay in the Supreme Court to be short indeed; this is one of the Appellate Death Penalties (“If the petition for appeal does not contain assignments of error, the appeal will be dismissed.”).

There’s more; the rule also provides that merely arguing in an assignment that “the judgment or award is contrary to the law and the evidence” won’t suffice as an assignment. You have to specify what, exactly, the trial court did incorrectly, or your case will be over before it starts. If you don’t, then again, you can start planning your appeal’s funeral.

One final proviso here proves painfully expensive to an unfortunate litigant, in an unpublished order handed down on Friday, March 16. The case is Patterson v. Commonwealth, and the proviso reads as follows: “Where appeal is taken from a judgment of the Court of Appeals, only assignments of error relating to questions presented in, or to actions taken by, the Court of Appeals may be included in the petition for appeal to this Court.”

Patterson was convicted in the trial court of the charge of stalking. The victim was apparently the current wife of Patterson’s ex. The court imposed the maximum punishment available for the Class 1 misdemeanor, 12 months in jail and a $2,500 fine. (That’s fairly harsh, especially as this apparently was her first conviction of any kind, but apparently Patterson’s conduct was sufficiently egregious as to warrant the statutory maximum.) Then the trial court then did something unusual: He suspended both the fine and the jail time, in their entirety, based on certain conditions, including Patterson’s uniform good behavior for a period of eighty years. No, that’s not a typo; it’s 80 years of good behavior, for a misdemeanor.

Please recall that, in the eyes of the trial judge, Patterson’s behavior was reprehensible; he stated he intended the term of good behavior to last the rest of Patterson’s life. This looked like a good time to call upon the aid and assistance of the appellate courts.

Unfortunately, the Court of Appeals refused her petition for appeal, noting that her trial counsel had not objected to the 80-year period of good behavior. Citing the contemporaneous objection rule (Rule 5A:18), it held in a per curiam opinion, later incorporated into an order, that the argument was procedurally barred. The court also rejected Patterson’s resort (evidently raised during oral argument) to the “ends of justice” exception to that rule, since Patterson had not requested that consideration in her brief. (The CAV doesn’t use the exception sua sponte; if you’re unfortunate enough to need to use it, you have to move for it in your brief.)

But that isn’t the end of the line; Patterson still had the opportunity to ask the Supreme Court to take the case. She asked, and the court took it, no doubt intrigued by the concept of such a long term of good behavior for an offense that carries a maximum of one year’s punishment.

That was the good news for Patterson. The bad news is that, on Friday, the court dismissed the appeal as improvidently awarded, thereby ending her stay in the Virginia appellate system. The court takes this action because of the last-quoted provision of Rule 5:17(c).

Patterson’s assignment of error reads, in pertinent part: “The trial court abused its discretion and exceeded its authority by not applying a standard of reasonableness when it sentenced Patterson to eighty (80) years of unsupervised probation, also known as good behavior.” You’ll note that she has assigned error to what the trial court did; there is no mention here of the actions of the Court of Appeals. Specifically, she never assigned error to the finding of the CAV that the argument was procedurally barred under Rule 5A:18.

Finally, the worst part of this order: This is the second time this has happened to Patterson. The order notes that the Supreme Court had rejected a previous petition by Patterson in a related case in 2005, for this precise reason. That is, this is the second appeal in a row that has been lost by virtue of the fact that Patterson’s lawyer didn’t read the rules.

* * *

When I accepted the chair of the State Bar’s Appellate Practice Subcommittee in 2005, I decided that my first priority was to increase the availability of CLE programs in the field of appellate practice. I wrote about that decision in one of the earliest essays I posted to this web site; you can read that here. The Patterson case illustrates the need for such training; if the judges and justices with whom I speak are fairly representative, the appellate bench still regards the level of advocacy they see as, on the whole, poor.

The victim here in one sense is Patterson. Whether she’s guilty of stalking or not, her trial counsel didn’t protect her, since he or she didn’t make a timely objection to the long period of good behavior. Her appellate lawyer compounded that by making a case-dispositive mistake, and by repeating it after the error had been pointed out to him (rather forcefully, in a previous case-dispositive order). I am not going to name either lawyer here; nor am I going to crucify either one. As far as I know, he or she has a crushing caseload, and had neither the time nor the appellate expertise to handle this case meticulously. Having never walked a mile in that lawyer’s shoes, I won’t presume to condemn.

But we as lawyers have to ensure that the future Ms. Pattersons in the Commonwealth get better representation than this. We can start the process of improvement of the appellate legal system by the simple act of opening up the rule book whenever we get an appeal. As for the CLE training, watch this space; I’ll announce within the week the next in the ongoing series of appellate practice symposia, to be held in May. This one, suitably enough, will focus on handling criminal appeals.