14.1 APPEALS IN CRIMINAL CASES GENERALLY

• Jurisdiction: Virginia
• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2025 Ed.)

14.1 APPEALS IN CRIMINAL CASES GENERALLY

14.101 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. ³⁵¹³ The Court of Appeals of Virginia was established in 1985, ³⁵¹⁴ and all appeals from the circuit courts in criminal or traffic cases are made to the Court of Appeals. ³⁵¹⁵

Before 2022, the statutory provisions granting appellate jurisdiction in criminal cases to the Court of Appeals did not require an appeal of right. ³⁵¹⁶ Formerly, the Virginia Code provided that, while an appeal (which is the same thing as a writ of error) must lie for the accused in a criminal case, there was no appeal of right in a criminal case except in capital cases. Instead, the Court of Appeals, after reviewing the petition for appeal, had discretion whether to grant further review. ³⁵¹⁷ 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." ³⁵¹⁸

Now all is different. There are appeals of right in every criminal and traffic case. Since the death penalty was abolished in Virginia, there are no criminal cases that come directly to the Supreme Court of Virginia. Even violent sexual predator cases are now appeals of right to the Court of Appeals. All criminal appeals can (and must in court-appointed cases) be appealed by notice of appeal to the Court of Appeals and petition to the Supreme Court of Virginia. ³⁵¹⁹

The new appeal of right does not change the necessity for the limitations on Commonwealth's appeals in a criminal case as long as that appeal does not violate the Virginia or federal Constitution. ³⁵²⁰

14.102 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 ³⁵²¹ within 30 days after entry of the final order except as otherwise provided by statute, the decision whether to appeal must be made within that time. ³⁵²² The attorney should determine what errors were made and to which of these errors proper objections were made, thus preserving the error for appeal. Then the attorney should outline for the client the procedure that must be followed, the chances of success, any potential costs, and the ramifications of any potential retrial. ³⁵²³ The client should be told of the right to appeal to the Court of Appeals; if a client is indigent, counsel can petition the court to declare the client indigent so that counsel will be compensated by the Commonwealth for work on the appeal. The defendant may, after further consultation with counsel, decide to withdraw the appeal. ³⁵²⁴

When trial counsel has failed to advise the client of the right to appeal, the client's right to effective assistance of counsel has been violated. ³⁵²⁵ However, information about the appeal given by the trial court suffices. ³⁵²⁶ The Virginia Supreme Court also held that the attorney's duty to outline potential appeals can be fulfilled by advice given before the trial. ³⁵²⁷ The Fourth Circuit Court of Appeals held that a defendant who pled guilty need not be informed of the right to appeal, but a recent United States Supreme Court case at the very least casts grave doubts on that holding. ³⁵²⁸

A court-appointed attorney's responsibilities to the client do not end with the conviction but continue through the appeal, unless the attorney is relieved by other counsel. ³⁵²⁹ 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, ³⁵³⁰ 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 protect the client's rights and perfect the appeal and should also brief anything in the record that could arguably support the appeal. In Jones v. Barnes, ³⁵³¹ 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, ³⁵³² 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. ³⁵³³

Rule 5A:20(i) implements the 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 both Anders and Akbar v. Commonwealth ³⁵³⁴ and is required to file (i) an opening brief that refers to anything in the record that might arguably support the appeal and 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 brief for appeal. The appellant must be served with the Anders brief and motions as if he or she is a party. If a paper record is sent to the Court of Appeals, an appendix is still required, although a motion can be made to the Court of Appeals to dispense with the appendix.

14.103 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, the general rule is that no appeal will lie after a guilty plea except on the question of jurisdiction. ³⁵³⁵ However, a guilty plea does not waive claims of constitutional violations that occur after the plea. ³⁵³⁶ Furthermore, a court will examine, on appeal, whether the guilty plea was voluntarily and intelligently made. ³⁵³⁷ The general rules do not apply when the accused pleads guilty to a federal capital offense and is sentenced to death. ³⁵³⁸ The author's opinion is that if the client desires to appeal, even if there is a plea agreement (and even if a clause of that plea agreement is an agreement not to appeal) or guilty plea, it is ineffective assistance of counsel not to at least file the notice of appeal. ³⁵³⁹

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. ³⁵⁴⁰ If the court improperly accepts a defendant's conditional plea without the Commonwealth's agreement, there can be no appeal. ³⁵⁴¹

14.104 Appointment of Counsel and Expenses of Appeal.

The United States Supreme Court has held that the Sixth and Fourteenth Amendments require states to appoint counsel for the first review given as a matter of right. ³⁵⁴² When the appeal is entirely discretionary, however, no counsel need be appointed. ³⁵⁴³ These decisions arguably require Virginia to appoint counsel to prepare opening briefs and, if desired, reply briefs. Regardless of the constitutional standard, the Virginia Code provides for the appointment of counsel for indigents at all stages of the prosecution, including appeal. ³⁵⁴⁴ Moreover, an indigent who has been convicted of a felony can submit an affidavit to the clerk of the Supreme Court or the Court of Appeals that he or she is unable to pay for the costs of the record and have the costs borne by the state. ³⁵⁴⁵ Counsel's fees in an amount not less than $300, expenses, and costs in preparing the appeal will be paid in amounts deemed "reasonable." ³⁵⁴⁶

Another consideration is the infrastructure and competence needed to litigate appeals. The lawyer's office and staff must be available to pursue the appeal in a timely manner. ³⁵⁴⁷ The lawyer must be either competent to handle an appeal or willing to associate another attorney who is competent to handle appeals. ³⁵⁴⁸

If the court affirms the trial court's decision, all fees and other expenses are taxed against the defendant as costs. ³⁵⁴⁹ Thus, an indigent provided with free counsel can end his or her legal battle with a substantial debt to the Commonwealth. A state law that provides for recoupment of costs from an indigent defendant has been upheld by the United States Supreme Court. ³⁵⁵⁰ In that case, however, the state court had construed the statute to mean that a person who had no chance of losing his or her indigent status was not required to pay costs, even conditionally. The Virginia Supreme Court has upheld the same method of imposing costs on an indigent who loses on appeal, believing that the general state exemptions were sufficient to protect from any "chill in exercising their right to appeal." ³⁵⁵¹

14.105 Retrial Following Appeal.

A. Charge and Sentence.

The Court of Appeals has the power to affirm the trial court's judgment, to reverse it in whole or in part and enter the judgment that should have been entered below, or to remand the case for a new trial. ³⁵⁵² In certain circumstances, the case will be remanded for a new sentencing proceeding only. ³⁵⁵³ If the challenge is based on erroneously admitted...