[Posted December 10, 2015] We’re allllllmost finished with the appeals from the September session, as today the Supreme Court hands down an opinion in one of the two remaining unresolved appeals argued twelve weeks ago.

Habeas corpus

There are some interesting appellate lessons in Director v. Kozich. It’s a habeas proceeding brought by a prisoner who pleaded guilty to larceny and false-pretenses, but whose primary argument at sentencing was a plea for leniency due to his substance abuse.

If it sounds counterintuitive to you to respond to a criminal charge by claiming that you’re guilty of a different, unrelated charge, you aren’t alone. But Kozich’s lawyer presented at sentencing a letter from the mental-health manager of a local substance abuse facility, recommending that Kozich be treated instead of incarcerated.

Alas, Kozich had amassed a sizeable frequent-flyer-miles balance in the criminal-justice system, with more than a dozen prior felonies and even more misdemeanors. The judge noted on the record that:

putting you in programs doesn’t work because even when you’re given the opportunity of the programs, even when you’re given the opportunity of probation, you can’t help yourself. And so it’s come to the point where I have to protect the public from you.

She then gave him three consecutive two-year prison terms, no part of which was suspended. But then an unusual thing happened: the judge gave Kozich leave to file a motion to reconsider, naming a specific treatment program (the defense sentencing submission hadn’t identified one).

That should have been a major clue that the judge would consider such a motion favorably. But Kozich’s lawyer didn’t file anything, and 2 ½ weeks later, the court entered a sentencing order.

Three months after the sentencing order, the lawyer filed the invited motion. By then, Kozich had been transferred to a state prison, so Code §19.2-303 didn’t come into play. The court ruled then that it couldn’t consider the motion because it had lost jurisdiction over the case.

That brought on this habeas proceeding, presumably filed by a different lawyer, alleging that Kozich received ineffective assistance. The new attorney argued that Kozich’s trial counsel had been ineffective in two ways: by failing to identify a specific treatment program at sentencing, and by failing to file a timely motion to reconsider.

At the habeas hearing, the sentencing judge once again took a seat at the bench and considered the case anew. She rejected the first argument, holding that the failure to identify a specific program didn’t fall below the minimum standard of professional competence. But she granted relief on the second issue:

[T]he judge stated that the written sentencing orders were not truly final orders. It was “within my mind,” the judge revealed, “that I [was] not finally sentencing [Kozich].” If she does not “invite” more from a party, she explained, “it’s the end, period,” and, in her mind, the order is actually final. Here, she intended only to “impose a sentence here today” with the resulting effect of “continuing” the case as “an open sentencing.”

Now, I don’t handle criminal defense, so perhaps it’s unsurprising that I had never heard of something called “open sentencing” before today.  Maybe it’s an informal term of art in criminal courts. The problem is that what the trial judge called “an open sentencing” is what you and I would call “a final order.”

But we’re getting ahead of ourselves. The habeas judge ruled that the failure to file a timely motion constituted ineffective assistance. She said that if the motion had been filed in time, she would have granted it, based on her perception that heroin addicts are more likely to respond to treatment than are persons addicted to other drugs. She vacated the sentencing order and entered a new one, cutting the active prison time in half and directing placement in a private facility.

There’s an interesting footnote that describes the Commonwealth’s understandable objection to this last aspect of the sentencing, since state law doesn’t allow prison sentences to be served in privately operated, unsecured facilities. But the judge never ruled on that, so the justices don’t, either.

On appeal, a divided Supreme Court affirms the grant of habeas relief, though its distaste for doing so almost bleeds through the page. (Here I’m calling on my fallible skills at reading between the lines, but I strongly suspect I’m right.) It rejects the habeas judge’s approach that sentencing was still “open,” noting quite correctly that entry of a sentencing order triggers finality no matter what the judge’s subjective intention was.

I’ll hesitate to add, thank goodness. If a judge could enter what looks like a final order, but revisit it based on his unexpressed state of mind, Rule 1:1 would be shredded to an unrecognizable bloody pulp.

But this holding isn’t the end of the case; the court still has to evaluate the ineffective-assistance claim. Here, Kozich’s habeas lawyer may have made a strategic mistake, since he sought relief only under the Sixth Amendment (the right to counsel, and by extension to effective assistance) without adding a Due Process Clause claim.

That matters because the Sixth Amendment only applies in a criminal prosecution, not thereafter. A long line of caselaw holds that post-sentencing motions aren’t within the Sixth. You can’t assert that you had ineffective assistance for a phase of the proceedings where you don’t receive a constitutional guaranty of that right. For example, the Sixth doesn’t guarantee that your lawyer will pursue a discretionary appeal of your conviction. Accordingly, the Supreme Court holds today that the lawyer’s failure to file a motion before Kozich left for prison doesn’t state a Sixth Amendment claim.

But wait; I told you that the court affirms the grant of habeas relief. How can we get there after that ruling? The answer lies in that slim 2½-week period between rendition of judgment and entry of judgment. In that period, today’s majority (written by Justice Kelsey) holds, it was objectively unreasonable for the trial lawyer not to have filed something in response to the judge’s engraved invitation. The court holds in effect that during this time, the prosecution was still ongoing – it was still a “critical stage” of the case – so Sixth Amendment protection still applied.

Justice Powell dissents, joined by Justice McClanahan. The dissent would hold that the court’s rendition of judgment, when it orally announced the sentence, ended the “critical stage” portions of the prosecution. If you don’t have a Sixth Amendment right to counsel to seek reduction of the sentence, that should end the inquiry. The dissent perceives that the majority has created a new extension of the right to counsel: “Whether filed the day before or the day after entry of final judgment, a motion to reconsider sentence is not a critical stage of the proceedings.”

I’ll add a couple of additional points. The Supreme Court considered only the Commonwealth’s appeal of the habeas judge’s ruling on the second claim for relief. Remember, the judge had ruled against Kozich on his first claim, asserting that his lawyer should have identified a specific program at the sentencing hearing. Kozich didn’t appeal that ruling, presumably thinking that there was no need to do so because he’d won on the second point.

Today’s outcome means that there were no consequences of that decision, because Kozich gets a new day in court. But from an appellate perspective, if you’re in that position, you need to assign cross-error if your argument has any possible merit. That’s true where the lower court rules against you on the alternate theory, and even when it declines to address it, finding it unnecessary. (That was the painful lesson of VMRC v. Clark a few years ago.)

The majority also mentions a significant but unresolved issue: whether the trial judge should also have adjudicated the habeas petition. Remember, one of the key components of her habeas ruling was what she held privately in her mind at the sentencing hearing. Doesn’t that make her a witness (one who’s immune to cross-examination) in the habeas case?

Here’s what the majority has to say about this practice:

We question, but do not pass judgment on, the propriety of a habeas court’s reliance on subjective intentions of this kind for purposes of establishing prejudice. The Commonwealth waived the issue below and did not challenge this aspect of the trial court’s ruling on appeal.

It adds in a footnote, “Because the Commonwealth, as appellant, took this position [i.e., did not object] in the habeas court and did not attempt to repudiate it on appeal, we leave for another day the question whether this practice should be encouraged or discouraged.”

The justices don’t come out and say that a sentencing judge should never take up a subsequent habeas claim, and I think it would read too much into today’s opinion to conclude that the court feels that way. The issue here is that the judge brought something beyond the trial-court record into play. If the Commonwealth had objected, I believe fully that it would have prevailed on that issue on appeal.

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I noted at the beginning of this analysis that this case took twelve weeks to decide. The litigants might feel that they’re bearing the burden of the court’s new rolling release dates, since they got the decision five weeks after the normal release date under the old policy.

There’s another way to look at this. Under the old procedure, if a decision wasn’t ready for release on the next opinion day, it was pushed back to the following opinion day. In this case, that would be the end of the January session, a month from now. In that sense, these folks got their ruling a month sooner than they might have if the court hadn’t changed its procedures.