13.1 Appeals in Criminal Cases Generally

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

13.1 APPEALS IN CRIMINAL CASES GENERALLY

13.101 General Constitutional and Statutory Framework. Appellate jurisdiction in criminal cases is vested in the Supreme Court of Virginia and in other courts of appellate jurisdiction subordinate to the Supreme Court that the General Assembly is authorized to establish. ¹ The Court of Appeals of Virginia was established in 1985, ² and all appeals from the circuit courts in criminal or traffic cases, except those involving a sentence of death, are made to the Court of Appeals. ³

The statutory provisions granting appellate jurisdiction in criminal cases to the Court of Appeals are not mandatory. Even though the Virginia Code provides that an appeal (which is the same thing as a writ of error) must lie for the accused in a criminal case, there is no absolute right of appeal in a criminal case except in capital cases. Instead, the Court of Appeals, after reviewing the petition for appeal, has discretion whether to hear the case. ⁴ The Virginia Supreme Court has stated that "the decision to grant or refuse a petition for a writ of error is based on one equally applied criterion—the merits of the case." ⁵ Thus, when the Court of Appeals finds a substantial possibility of error, it should grant a petition for appeal and decide the case on the merits after briefing and argument before a panel of the court. ⁶

A single judge and, if demanded, a panel of judges of the Court of Appeals reviews every case for which a petition for appeal is filed to determine

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whether the case warrants full review. ⁷ Thus, although there is no appeal as a matter of right except in capital cases, the screening process is sufficient to ensure a full review of a meritorious case.

The Commonwealth may appeal in a criminal case as long as the appeal does not violate the Virginia or federal Constitution. ⁸

13.102 Client's Decision to Appeal. The attorney and the client must discuss the possibility of an appeal soon after the conviction. Because a notice of appeal must be filed ⁹ within 30 days after entry of the final order, the decision whether to appeal must be made within that time. ¹⁰ The attorney should determine what errors were made and to which of these errors proper objections were made. Then the attorney should outline for the client the procedure that must be followed, the chances of success, and the ramifications of any potential retrial. The client should be told of the right to petition the Court of Appeals; if the client is now indigent, counsel can petition the court to declare him or her indigent so that counsel will be compensated for the appeal by the Commonwealth. The defendant may, after further consultation with counsel, decide to withdraw the appeal. ¹¹

When trial counsel has failed to advise the client of the right to petition for appeal, the client's right to effective assistance of counsel has been violated. ¹² However, information about the appeal given by the trial court suffices. ¹³ The Virginia Supreme Court also held that the attorney's duty to outline potential appeals can be fulfilled by advice given before the trial. ¹⁴ The Fourth Circuit Court of Appeals held that a defendant who pleaded guilty need not be informed of the right to appeal. ¹⁵

A court-appointed attorney's responsibilities to the client do not end with the conviction but continue through the appeal, unless the attorney is

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relieved by other counsel. ¹⁶ Once an indigent defendant indicates that he or she wishes to appeal, the attorney must give that person the same quality of representation the attorney would provide for a non-indigent. Under the guideline established by Anders v. California, ¹⁷ when the client insists on appealing a conviction but counsel truly believes that the appeal is frivolous, counsel should advise the court that he or she wishes to withdraw but should continue to file whatever petitions or motions are necessary to perfect the appeal and should brief anything in the record that could arguably support the appeal. In Jones v. Barnes, ¹⁸ however, the Supreme Court held that court-appointed defense counsel does not have a constitutional obligation to raise on appeal every non-frivolous issue requested by the defendant if counsel, as a matter of professional judgment, decides not to present these points. The Court reiterated this position in Smith v. Robbins, ¹⁹ finding that the briefing provisions of Anders provided a mere "prophylactic framework" and that a state may adopt different procedures, as long as those procedures adequately safeguard a defendant's right to appellate counsel. The Court in Jones v. Barnes cautioned, however, that the accused still has the ultimate authority to make certain fundamental decisions about the case, including the decision to appeal. Moreover, counsel must take care to separate the constitutional issue resolved by Jones v. Barnes from his or her ethical and professional obligations. ²⁰

Rule 5A:12(h) implements Anders requirements in the Court of Appeals. If counsel for the appellant finds the appellant's appeal to be without merit, counsel must comply with the requirements of Anders and Akbar v. Commonwealth²¹ and is required to file (i) a petition for appeal that refers to anything in the record that might arguably support the appeal and

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that demonstrates to the court counsel's conscientious examination of the merits of the appeal; (ii) a motion for leave to withdraw as counsel; and (iii) a motion for an extension of time to allow the appellant to file a supplemental petition for appeal.

13.103 Waiver of Right to Appeal by Pleading Guilty. A voluntary and intelligent plea of guilty by an accused acts as a waiver of all defenses except that of lack of jurisdiction; thus, there can be no appeal after a guilty plea except on the question of jurisdiction. ²² However, a guilty plea does not waive claims of constitutional violations that occur after the plea. ²³ Furthermore, a court will examine, on appeal, whether the guilty plea was voluntarily and intelligently made. ²⁴ The general rules do not apply when the accused pleads guilty to a capital offense and is sentenced to death. ²⁵

With the court's approval and the Commonwealth's consent, a defendant may enter a conditional plea of guilty in a misdemeanor or felony case, reserving the right, on appeal from the judgment, to a review of the adverse determination of any specified pretrial motion. If the defendant prevails on appeal, he or she may withdraw that plea. ²⁶ If the court improperly accepts a defendant's conditional plea...