PROCEDURAL DEFAULTS SCUTTLE TWO MORE SCV APPEALS
On Friday, July 22, the Supreme Court issued orders disposing of two appeals argued in the June session. Both appeals were decided largely on the basis of arguments the court found to be forfeited or procedurally defaulted.
The first such case is Ditton v. Virginia State Bar, an appeal from a three-judge panel’s order suspending an attorney’s license for five years. The charges against the attorney included the very serious matter of candor toward a tribunal, plus two counts of misconduct and one of representation within the bounds of the law.
The attorney, who represented himself on appeal, assigned no fewer than fourteen errors to the panel’s order. The Supreme Court found that ten of those were not susceptible of appellate review, because the attorney had failed to timely file a transcript, pursuant to Rule 5:11(a). The court then addressed the remaining four assignments under the very lenient abuse of discretion standard, with a presumption of correctness of both the factual findings and the penalty imposed. With that background, the court unsurprisingly affirmed the suspension.
The other case is Park v. Commonwealth, a criminal appeal involving a novel sentencing issue. The trial court had found Park guilty of possession of marijuana with intent to distribute, the maximum penalty for which is ten years. The court sentenced Park to the maximum ten-year term, but suspended seven of those years, conditioned on Park’s being on good behavior for twenty years. That is, the period of probation was twice as long as the maximum prison term.
Park contended on appeal that the trial court lacked jurisdiction to impose such a long term of probation. Unfortunately, he had not raised this argument in the trial court, so he was constrained to seek review under Rule 5:25, arguing that the ends of justice exception relieved him from the usually fatal effects of that rule.
In evaluating this posture, the court took the unusual step of ruling that “Park suffered no grave injustice” because his substantive argument had no merit. In essence, it held that even if the exception applied, Park still lost. Park thus won a Pyhrric victory, effectively overcoming the procedural bar, only to lose on the merits.
Park also complained about the trial court’s imposition of indefinite supervised probation. The Court of Appeals had held that the probation term was not unlimited; it was in fact twenty years. In the Supreme Court, Park continued to maintain his view of the trial court’s original ruling, arguing again that an indefinite period of probation was erroneous. Procedurally, that argument contains a fatal flaw: On appeal in the Supreme Court, an appellant must assign error to the ruling of the Court of Appeals, not the trial court. Since Park did not challenge the Court of Appeals’ ruling, it became the law of the case, and Park was left without an argument.
These two orders, which are not available on the court’s web site, illustrate three essential appellate principles. First, pay particular attention to the importance of filing an accurate and timely transcript. This landmine exploded earlier this month in the notable appeal by the Wintergreen ski resort, costing it the opportunity to appeal an $8.3 million judgment. Second, take care to preserve issues for appeal in the trial court. I have described Rule 5:25 and its CAV counterpart, Rule 5A:18, as the twin Grim Reapers of the appellate rule book; they routinely slaughter more appeals than all of the other rules combined. And third, when you appeal on from the Court of Appeals to the Supreme Court, assign error to the CAV’s ruling, not merely to that of the trial court. (It’s acceptable to combine them, as in, “The Court of Appeals and the trial court erred in ruling that . . .”)
With the announcement of these two orders, the court has now decided seven of the 25 cases argued in the June session. The next opinion day is Friday, September 16, at which time the court will hand down opinions in the remaining 18 cases (unless still more are decided by order before then).