ANALYSIS OF JUNE 17, 2021 SUPREME COURT OPINION
(Posted June 17, 2021) Some appellate decisions are hair-on-fire occurrences. “Alert the major media!” Today’s ruling in Nicholson v. Commonwealth will trigger a more modest response: “Alert the appellate geeks!”
This is an appeal of a conviction for driving on a suspended license, fifth offense. (Side note from a former prosecutor: At what point does a frequent flier like that get the message?) Nicholson received a summons for the offense in Albemarle County, and the GDC and then circuit court both got ‘er on the charge. In circuit, various orders referred to the proceeding as “Commonwealth v. Nicholson,” and when she noted an appeal to the CAV, she did so with that as the style of the case.
Alas; the proper prosecuting authority looks to have been the county, although the local Commonwealth’s Attorney evidently handled the case at trial. The sentencing order – for those civil lawyers among you, that’s the final order in any criminal prosecution – listed the case as “Albemarle v. Nicholson.”
The Court of Appeals noted the discrepancy and remanded the case to circuit court to determine what the proper prosecuting entity was. “The County,” came back the answer, though the circuit court’s nunc pro tunc order also modified the reference to the law violated, noting both the state Code and its parallel in the County Code.
Now what? Back upstairs, the Court of Appeals directed supplemental briefing on the issue. Nicholson and the Commonwealth filed briefs, but this time the County filed one, too, acknowledging that it had received notice of the appeal and consenting to Nicholson’s request for leave to amend. (I commend the County Attorneys for doing the right thing.) Nicholson’s prospects brightened accordingly.
No dice, the CAV ruled. It dismissed the appeal by finding that the notice of appeal was “fatally defective” for misidentifying the offense being appealed. Today the justices unanimously reverse and send the appeal back to the CAV for a decision on the merits. Prior caselaw indicates that a notice of appeal doesn’t have to be perfect; just sufficient. The Supreme Court rules that this notice did its job despite the inconsistency in the identity of the appellee.
There’s a significant paragraph on page 6 of this short opinion from the efficient pen of Justice McCullough. In Roberson v. Commonwealth from 2009, the Supreme Court had belittled – maybe that’s too strong a word, but you get the message – the importance of the trial court’s docket number in identifying the judgment that’s being appealed. The court reconsiders that and holds today that that number can be an important factor in identifying the exact case that’s being appealed. As Justice McCullough points out in a footnote, it’s still important for counsel to list the correct docket number.
Today’s opinion cites two seminal decisions on this issue, Roberson and Ghameshlouy v. Commonwealth decided the following year. This opinion may join them as the decisionmaking triad on questions like this.