[Posted October 29, 2015] Today, for the first time since the Supreme Court of Virginia changed to rolling release dates for opinions, we get a batch of six such opinions from appeals argued in the September session. The litigants whose cases are decided today are the first beneficiaries of a policy that may accelerate the disposition of some appeals; the previous “normal” release dates for the last session’s appeals would have been next week. That means that these folks are getting their decisions a week earlier than they would have under the old policy.



The court takes up a wrongful-death judgment in favor of juvenile statutory beneficiaries in In re Woodley. The decedent was a four-year-old boy who was killed in a school-bus accident. The case went to trial against the school division and one or more bus drivers, and the jury returned specific verdicts in favor of the decedent’s three brothers. Two of those brothers were juveniles.

The brothers’ parents submitted to the trial court a proposed irrevocable trust agreement for the benefit of the juveniles. The plan called for an experienced trust officer of a reputable company to manage the assets until the boys reached adulthood, at which time the assets would be gradually distributed to them. The trust officer expected an annual rate of return of about 7% on the money.

The trial judge wasn’t satisfied. He rejected this plan and directed that the funds be held by the Clerk of Court in interest-bearing accounts until the boys reached the age of majority. The rate of return on funds held that way is just 0.1%.

The Supreme Court today unanimously reverses this decision. It notes that this isn’t a settlement, over which the statutes give the trial courts the right to review and approve such resolutions. This was instead a verdict that was incorporated into a judgment. In that instance, the wrongful-death statutes are specific: awards “shall be paid to the personal representative.” The justices today find that a judge cannot override that specific statute by directing the payment of an award to someone else, even the Clerk.


Habeas corpus

We’ve seen a fair number of cases in recent years that raise ineffective-assistance claims based on legal advice given to resident aliens. Specifically, you can be deported for committing certain serious offenses, and rather than plead guilty to those offenses, many aliens may wish to contest them, to avoid the deportation threat. That’s the scenario in Escamilla v. Superintendent.

Escamilla arrived here as a legal alien in 1999. Four years later, he was arrested and charged with grand larceny and three vehicle-tampering offenses. After being assured by his lawyer that a guilty plea would have no immigration consequences, he agreed to plead guilty to reduced charges and serve a short jail term, with parts of the sentences suspended for three years. All of those suspended terms expired in 2006.

Late in 2013, the feds arrived: The Immigration and Customs Enforcement folks picked him up for deportation proceedings. Alas, the lawyer’s advice was incorrect, because the larceny charge qualifies as one of those serious charges. Escamilla accordingly filed a habeas petition in state court, contending that he received ineffective assistance of counsel back in 2003.

The trial judge dismissed the petition, finding it to be time-barred. The court also ruled that it didn’t have jurisdiction over the case, since Escamilla wasn’t in state custody when he filed his petition.

The justices today affirm that ruling, primarily on the jurisdictional ground. The court notes that habeas is a remedy for persons who complain that they are improperly detained. Escamilla hadn’t been detained by Virginia since 2003. That being said, modern habeas-corpus jurisprudence extends that where a person has not fully served his sentence. In Escamilla’s case, the Commonwealth still had power over him on these charges until 2006, since he was on probation.

That still doesn’t get us to 2013. Escamilla unquestionably was in custody when he filed his petition, but it wasn’t state custody. Today’s opinion notes that state courts can’t review the legality of the federal government’s detention of a person. (That pesky Supremacy Clause.) Accordingly a person in Escamilla’s situation, who has fully served his sentence, only to learn of the immigration consequences later, can’t use state habeas to challenge the original criminal proceeding.

The second habeas case of the day shares many features with the first. The appellant in Fuentes v. Director also pleaded guilty to a larceny charge – she had been caught red-handed after shoplifting, and admitted her guilt to the store’s employee and to a police officer. Only after the trial court accepted her plea and sentenced her did she get a tap on the shoulder from the feds.

In this case, the trial court held an evidentiary hearing. There, Fuentes testifies, as did her defense lawyer. The lawyer told the judge that he had repeatedly informed Fuentes that “he discussed the risk of deportation with her each time they met because that was her principal concern.” He explained to her that a guilty plea would produce “the likelihood of deportation.” The trial court found this testimony to be credible, and refused the petition.

Still, Fuentes appealed, contending that the lawyer had advised her incorrectly. He hadn’t known until the evidentiary hearing that her status was that of a resident alien instead of an illegal alien. The justices find that this part won’t fly because she had told her trial lawyer before pleading that she “had no papers.” It was reasonable for the lawyer to accept this representation.

Fuentes also argued that the lawyer had understated the risk by using the word likelihood. She contended that the offense of which he was charged would automatically make her subject to deportation. But as Justice Mims, the author of today’s unanimous opinion, correctly notes, automatic eligibility for deportation doesn’t equate to automatic deportation. The Attorney General still has discretion whether to order a given alien’s removal.

Because the court finds that the lawyer’s advice didn’t fall below the standard of care, it affirms without reaching the prejudice prong of the Strickland analysis. Reading between the lines, the opinion telegraphs that if the court had reached that prong, the appellant would have lost even more fully.

Criminal law

Bowman v. Commonwealth involves a conviction of construction fraud against a contractor who accepted a $2100 deposit against a $4200 swimming-pool job, and then didn’t deliver. The owner called him and received some excuses and promises; when those didn’t pan out, he called the police.

The gendarmes advised the owner to send the demand letter that’s required in the statute. The owner did that, but it was returned unopened. The owner sent a follow-up letter to a different address. This one found the mark, and the parties spoke by phone. The owner told the contractor to just deliver the part he’d ordered – a pool liner – and he’d get another contractor to install it. Despite even more promises, the contractor never delivered the liner and never refunded the money. That led to this criminal trial.

Justice Kelsey lays out the trial-court proceedings, and at one point, my jaw dropped in astonishment. The prosecution offered the original envelope, still unopened, into evidence, but no one ever opened it to see what the letter actually said. (The owner couldn’t recall what it said.) Nor did the second letter make its way into evidence.

That matters – in fact, it’s case-dispositive – because this criminal statute requires proof that the defendant “fails to return such advance within fifteen days of a request to do so sent by certified mail …” That statute unambiguously requires proof that the owner mailed a request for return of the money in the certified letter.

The problem is that at trial, the owner testified that he really just wanted his pool liner, so he could have another contractor finish the work. The law doesn’t allow an alternative demand – in this case, return of the deposit or provision of the liner – so without proof of what either letter actually said, there’s no proof, beyond a reasonable doubt, that this condition was met here. The court accordingly reverses the conviction and enters final judgment for the contractor.

The appellee in Commonwealth v. Davis needs to make plans to buy a really, really nice Christmas gift for his court reporter. That’s because the reporter won Davis’s freedom.

This case stems from a fatal shooting in Surry County. And it was a particularly violent crime: “the shooter fired ten or more gunshots into an occupied parked car,” killing the occupant. Davis was arrested and charged with three felonies – murder, malicious shooting, and a firearm charge – plus the misdemeanor of reckless handling of a firearm.

The matter proceeded to a hearing in general district court. As is customary, the GDC judge heard the matters all at once, as a preliminary hearing for the felonies and as a trial on the merits for the misdemeanor. But the evidence at that hearing was particularly weak on one key point: the identification of Davis as the shooter. After receiving the evidence, and lawyers’ arguments that focused primarily on the sufficiency of the ID, the judge made the following rulings on the record:

On the issue of probable cause, clearly the Commonwealth has met its burden as to whether a felony was committed or not.

On the issue of whether or not you’ve shown it reasonable to believe Mr. Davis was the one that fired the weapon, I find that you have not met that burden, and I find no probable cause.

On the misdemeanor charge as to whether or not you’ve proven the case beyond a reasonable doubt, I would find that you have not. I’m going to find him not guilty of that charge.

The court accordingly dismissed the misdemeanor count and refused to certify the felony counts. That didn’t stop the prosecutor. Although the misdemeanor count was now finally concluded, the Commonwealth secured direct indictments of Davis on two felonies. (My criminal-law readers know well that the refusal by a GDC judge to certify felony charges doesn’t trigger Double Jeopardy, because you can’t be convicted in a preliminary hearing.)

Davis unsuccessfully sought a dismissal based on the outcome of the misdemeanor charge. A jury found him guilty of murder and attempted murder, but a panel of the Court of Appeals reversed, holding that the acquittal on the misdemeanor charge foreclosed subsequent felony prosecution. A divided en banc CAV upheld the panel decision.

The Supreme Court granted a writ, and by a vote of 6-1, the justices affirm the CAV’s dismissal of the charges. The key to the court’s ruling is the GDC judge’s express rejection, on the record, of the Commonwealth’s proof that Davis was the shooter. If the judge had simply made a vanilla ruling of “not guilty,” then it might still be an open question whether the proof on that point had failed. But in context, the justices find today, it’s clear that the GDC judge acquitted Davis of the misdemeanor because the Commonwealth had failed to prove he fired a gun. That finding, once made, cannot be relitigated in another criminal prosecution.

Justice McClanahan files a short dissent that incorporates the reasoning of the CAV dissent at the en banc stage.

I’ve preached on many occasions to trial lawyers that they absolutely must have a court reporter take down everything that happens in a case. In this appeal, the difference between having a reporter and not having one was sixty years in prison.

Workers’ Compensation

When you read McKellar v. Northrop Grumman Shipbuilding, you’ll come away thinking that the justices felt like adding some exclamation points after the phrase, “Reversed and remanded.” But this being the genteel world of appellate practice and procedure, the opinion ends with a simple period.

McKellar worked as a welder for 42 years at Northrop Grumman. On April 1, 2010, he gave the company a month’s advance notice of his intention to retire. But before the calendar could turn to May, he fell on the job and injured himself seriously. The shipyard’s clinic placed him on restricted duty for the rest of the month.

McKellar’s injuries lingered past his retirement date, so he saw an orthopedic surgeon. After examining him, the good doctor pronounced him totally disabled, placing him on “no-work status.”

McKellar accordingly filed a claim for Workers’ Comp benefits; he sought medical benefits and temporary-total disability compensation. Reading between the lines, the company responded with something like, “What are you, nuts? You’re not disabled; you’re retired.”

After a hearing, a deputy commissioner awarded McKellar both medical benefits and disability, citing a 1992 Industrial Commission decision holding that you aren’t barred from Comp benefits merely because you retire after you’re injured. But the full commission disagreed, at least in part. While McKellar was still entitled to medical benefits, the commission ruled, 2-1, that his “wage loss would have occurred regardless of his compensable injury.” The Court of Appeals agreed with the full commission.

But the justices have the last word, and the shipbuilder isn’t going to like it. The Supreme Court unanimously reverses, holding that the CAV’s decision was “plainly erroneous.” That’s tough talk by appellate standards, and reflects a wholesale rejection of the ruling below instead of a nuanced disagreement.

The court rules today that there are different standards for evaluating total and partial disability claims. A worker who’s partially disabled can – indeed, usually must – find other work, including light duty. His Comp claim is measured by subtracting his present income (or income-earning capacity, if he’s not working) from his previous income.

Totally incapacitated workers are a different breed; at least, their claims are analyzed differently. Those workers don’t have the ability to offset their income loss, and for those who retire, they can’t supplement their retirement income by things like part-time work. For them, benefits are measured by their loss of income-earning capacity.

Justice McClanahan files a concurring opinion that’s just as favorable to the employee, but would use a simpler means of getting to the same destination. The court today remands the case and directs reinstatement of the deputy commissioner’s original award.