13.3 Appeal from Circuit Court to Court of Appeals

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

13.3 APPEAL FROM CIRCUIT COURT TO COURT OF APPEALS

13.301 Preliminary Steps.

A. In General. Perfecting an appeal from the circuit court to the Court of Appeals is principally a matter of following the procedures set out in Part 5A of the Rules of the Supreme Court of Virginia. ⁶⁰ While taking the necessary steps may not ensure a successful appeal, failure to do so can irreparably harm even the most meritorious appeal and may result in ethics complaints being brought by a client or by the appellate court. ⁶¹

B. Preservation of Error. The attorney must try any case with the idea that it may be necessary to appeal. In essence, there are two trials ongoing that require counsel to protect the record. He or she must make timely objections, identifying the objections with reasonable certainty and stating the grounds therefore, file proper motions in accordance with Part 3A of the Rules of the Supreme Court of Virginia, and lay the proper foundations for defense evidence, or the court will not hear the issues on appeal. ⁶² Once a party has clearly stated an objection, further objection is not necessary to preserve the right to appeal. ⁶³

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Generally, when a party unsuccessfully objects to evidence as improper but introduces evidence of similar character on his or her own behalf, the party waives the earlier objection. However, an objection to previously elicited testimony is not waived by mere cross-examination of a witness or the introduction of rebuttal evidence. ⁶⁴

C. Proffers. "When testimony is rejected before it is delivered, an appellate court has no basis for adjudication unless the record reflects a proper proffer. A proper proffer may consist of a unilateral avowal of counsel, if unchallenged, or a mutual stipulation of the testimony expected." ⁶⁵

D. Tactical Decision Not to Introduce Evidence. A defendant's tactical decision not to present evidence of good character following a trial court's ruling in limine that, if he did, the prosecution would be able to present evidence negating his reputation for being a law-abiding citizen prevents an appellate court from ruling on the trial court's decision. ⁶⁶

E. Ends of Justice Exception. While a ruling of the trial court generally will not be considered on appeal unless an objection and the grounds therefore were stated at the time of the ruling, there is an exception for good cause shown or to enable the court to attain the ends of justice. ⁶⁷ The Court of Appeals has ruled consistently that the provisions of Rule 5A:18 will be strictly enforced; the exception is narrowly construed, is rarely granted by the Court of Appeals, and should not be relied on by the defense during the trial. As time goes by, it appears that the Court is becoming less forgiving of counsel's error. Successfully invoking the ends-of-justice exception to the contemporaneous objection rule requires a determination not only that there was error in the judgment but that application of the exception is necessary to avoid a grave injustice. ⁶⁸ The appellant must demonstrate that a miscarriage of justice actually occurred; it is not sufficient that the record show

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that injustice might have occurred. ⁶⁹ To make such a showing, the appellant must demonstrate more than that the Commonwealth failed to prove an element of the crime. The appellant must show that he or she was convicted for conduct that was not a criminal offense, or the record must prove that an element of the crime did not occur. ⁷⁰ As an example, the Court of Appeals applied the ends-of-justice exception to allow an appeal when the defendant was arraigned on a charge of unlawful wounding, pled to the charge, and was found guilty of the charge (a Class 6 felony) but was sentenced by the court for malicious wounding (a Class 3 felony). The court held that the record proved a manifest injustice had occurred. ⁷¹ Furthermore, the Virginia Supreme Court has ruled that the failure of the trial court to properly instruct the jury on a matter of law requested by the defendant and vital to the defendant's case is serious enough to warrant invoking the ends-of-justice exception. ⁷² The Court of Appeals will not, sua sponte, consider the ends-of-justice exception. ⁷³ Hence, counsel must raise this request in all appropriate cases, even if in the alternative (for example, "I preserved the error for appeal but even if the court holds that I did not, I plead the ends of justice exception").

F. Failure to Appeal All Grounds for Decision. When the trial court issues alternative grounds for a decision, the failure to appeal one ground waives any further review of the decision if the alternative holding, standing alone, is legally sufficient to support the trial court's decision. ⁷⁴

G. Motion to Strike. To preserve the issue of the sufficiency of evidence on appeal, a motion to strike is an appropriate method, but it is not the only way: a motion to set aside the verdict raises questions identical to

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those raised by a motion to strike. ⁷⁵ Likewise, in a bench trial, a challenge to the sufficiency of the evidence made in closing argument preserves the issue for appeal. ⁷⁶ A mere statement that the judgment is contrary to the law and evidence is not sufficient. ⁷⁷ When a defendant in a civil or criminal case proceeds to introduce evidence in his or her own behalf, after the trial court has overruled his or her motion to strike made at the conclusion of the introduction of the plaintiff's evidence in chief, the defendant waives the right to stand upon that motion. Thereafter, the defendant must renew the motion to strike at the conclusion of all the evidence, or in a bench trial, at the very least, the defendant must reassert the issues raised in the original motion to strike in his or her closing argument in order to preserve the issues for appeal. ⁷⁸

When the accused elects to forgo a motion to strike and proceed directly to closing argument, it is incumbent on the accused to make the trial court aware that he or she is challenging something other than the veracity of the evidence that supports the Commonwealth's theory. The sufficiency challenge must be clear enough for the trial court to discern its presence and to be able to distinguish it from an argument on the merits. Not every closing argument accomplishes this objective. An argument focused only on which witness is more worthy of belief fails to achieve this objective, and therefore the argument does not properly preserve a sufficiency challenge for appellate review. ⁷⁹

H. Motion to Postpone Execution of Sentence Pending Appeal. Once the defendant is convicted and sentenced, counsel should move to postpone execution of the sentence if the defendant wishes to

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appeal. ⁸⁰ If the defendant is sentenced to death or incarceration in the penitentiary, counsel should prepare a petition for appeal. ⁸¹ In other cases, postponement of the sentence is in the trial court's discretion. ⁸² The length of postponement in all cases is likewise discretionary. ⁸³ The trial court may set bail for the accused pending appeal, and the Court of Appeals may hear an appeal challenging either the lack of bail or its terms. ⁸⁴

I. Denial of Bail. If the court denies bail during the pendency of an appeal, the reasons for the denial must be stated on the record. If the decision to deny bail on appeal is overruled by the Court of Appeals or the Supreme Court, the appellate court will either set bail or remand the matter to the circuit court for further action regarding bail as the appellate court directs. ⁸⁵ Bail should be set in cases involving a misdemeanor. ⁸⁶

13.302 Filing the Notice of Appeal. A notice of appeal ⁸⁷ to the Court of Appeals must be filed within 30 days of the entry of the final judgment. ⁸⁸ The time period for filing the notice is mandatory, although it may be extended for 30 days if at least three judges concur in finding "that an extension for papers to be filed is warranted upon a showing of good cause

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sufficient to excuse the delay." ⁸⁹ The filing deadline is not extended by filing a motion for a new trial, a petition for rehearing, or a similar pleading unless the final judgment is modified, vacated, or suspended by the trial court pursuant to Rule 1:1. ⁹⁰ The time period also is not extended by the court taking these post-trial motions "under advisement." ⁹¹

The notice of appeal is filed with the clerk of the circuit court, with copies to opposing counsel and to the clerk of the Court of Appeals. ⁹² Copies must also be sent to any guardians ad litem involved in the case, although failure to do so is not cause for dismissal of the appeal. ⁹³ The copy of the notice of appeal sent to the Court of Appeals must be accompanied by a check or money order for $50 payable to the clerk of the Court of Appeals. ⁹⁴ The filing fee is not required for criminal cases in which the defendant is indigent. ⁹⁵ Due to potential jurisdictional issues, counsel should ensure that all post-trial motions are resolved before filing the notice of appeal, but there is no need to wait until the last day for filing.

13.303 Contents of Notice of Appeal. The notice of appeal should contain a statement of the order or judgment appealed from and must state whether any transcript or statement of facts, testimony, or other incidents of the case will be filed. ⁹⁶ When a defendant is convicted of two unrelated crimes, the notice of appeal must specify the identity of the case he or she intends to appeal, such as a designation of the crime or the statute under

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which the defendant was convicted. ⁹⁷ The notice of appeal must also correctly identify the appellee by jurisdiction in cases involving counties, cities, or towns and ensure proper service on that entity. ⁹⁸ The notice of appeal must include a certificate stating: (i) the names and addresses of all appellants and appellees; the names, addresses, and telephone and fax numbers of counsel (including any...