Insanity finding not appealed properly

By Alan Cooper, Virginia Lawyers Weekly – 5/17/2010

What do you do on appeal after your criminal trial has been converted to a civil proceeding?

The Supreme Count of Virginia left that question open today in an unpublished order dismissing an appeal because the assignment of error challenged a holding in a criminal aspect of the case, Martinez v. Commonwealth, Record No. 092111.

The prosecution and the defense agreed that Erik Steve Martinez was insane when he punched the victim once in the head. The victim’s skull was fractured and he bled from his ear after hitting the ground.

The issue was whether the underlying offense was misdemeanor assault and battery, as the defense contended, or aggravated malicious wounding, as the prosecution argued. The judge in Loudoun County split the difference and found Martinez not guilty of felony unlawful wounding by reason of insanity.

The felony-misdemeanor distinction was important even in the civil commitment process that followed because the commitment is, in essence, open ended for felonies and limited to one year for misdemeanors.

Martinez appealed his commitment order to the Virginia Court of Appeals, which transferred it to the Supreme Court because it was civil, not criminal, and therefore in the Supreme Court’s bailiwick.

But the assignment of error asserted that that one punch with a bare fist was insufficient to establish unlawful wounding. That assignment went to the order in the criminal case, so that Martinez didn’t assign error to civil proceeding from which he appealed, the court held.

So what could Martinez’s attorney have done? Appellate specialist Steve Emmert of Virginia Beach had a couple of suggestions. He could have appealed the criminal order, but that would have been problematic because he was appealing a finding of not guilty.
Or he might have rephrased the assignment of error to say, “The trial court erroneously ordered appellant to be confined for an indeterminate period, instead of for a period not to exceed one year, because the evidence in the criminal proceeding was insufficient to to establish the felony of unlawful wounding.”