New Court of Appeals Opinion on Questions Presented

Posted on September 13, 2009 by Jay O'Keeffe

The Court of Appeals of Virginia welcomes us back from summer vacation with a discussion of questions presented that will keep appellate specialists up at night in Carroll v. Commonwealth.

Facts

In 2007, Carroll was charged with raping his stepdaughter twenty-four years earlier. Carroll had initially been charged in 1983, but the case was nolle prossed--only to be reopened later, as the result of a separate rape allegation involving Carroll's sister. In 1984, the government destroyed specimens and other evidence obtained from a physical examination of the victim.

Despite the Commonwealth's evidentiary difficulties, Carroll entered an Alford plea. This allowed him to maintain his innocence while acknowledging that the Commonwealth had enough evidence to convict him. 

Carroll entered into a plea agreement with the Commonwealth, under which he did not admit that he committed the rape and, to the contrary, expressly claimed his innocence. The plea agreement provided that Carroll would satisfy the conditions of his probation, which included that he maintain good behavior, have no contact with the victim, and pay court costs. If he did so, his sentence would be continued while he was on probation, and upon satisfying probation, the government would ask the court to vacate his conviction and accept instead a guilty plea of assault and battery. The agreement included an integration clause: "I understand that the judge will not enforce any agreement not written down here." The plea agreement made no mention of sex-offender treatment.

The trial court accepted Carroll's plea and continued the case for 5 years. One of the conditions of the trial court's order was that Carroll would comply with all rules and requirements set by his probation officer.

Carroll's probation officer mandated that he attend sex-offender treatment, which required him to accept responsibility for his actions. Carroll refused, and was discharged from the program. The trial court issued a bench warrant. At the resulting hearing, Carroll argued that he had not violated his probation because the trial court had accepted his Alford plea. The trial court disagreed. It found that Carroll had violated his probation and convicted him of rape. It sentenced him to 5 years in prison, all suspended.

Holding

Carroll appealed. Here is how he framed the relevant question presented:

Whether the trial court erred in finding Appellant in violation of probation based solely on Appellant's refusal to admit to rape during sex offender therapy given the fact that the Commonwealth agreed to and the court accepted an Alford plea?

Remember that, under Rule 5A:12, the Court of Appeals will notice only questions presented in the petition for appeal. Still, this question presented should be worded broadly enough to allow consideration of Carroll's plea agreement, right? After all, it goes so far as to say "the Commonwealth agreed to . . . an Alford plea."

Apparently not. The majority, comprising Judges Haley and Humphreys, immediately invokes Rule 5A:12. It argues that, while Carroll's question presented cites his Alford plea, it does not cite his plea agreement. The Alford plea and the plea agreement are not inextricably intertwined. The plea agreement, therefore, is not before the appellate court.

The majority frames Carroll's argument as a claim that his Alford plea, alone and by its nature, contains an implicit promise that he will never be required to admit his guilt. Recognizing that this is a question of first impression in Virginia, the majority rejects Carroll's position, finding that a defendant who has entered an Alford plea is not an innocent person for purposes of criminal sentencing and probation.Carroll's Alford plea, standing alone, does not give him an enforceable right to maintain his innocence during sex-offender treatment.

Judge Alston dissents. He sees a fundamental inconsistency between Carroll's claim of innocence in making a plea agreement under Alford,  and the government's later requirement that he admit to the same charge during sex-offender treatment. Further, he notes that the plea agreement between Carroll and the Commonwealth contained no requirement that Carroll admit to the crime. Judge Alston points out that the majority's position effectively requires Carroll to do one of the following things under pain of government sanction:

  • take a position in sex-offender treatment that is legally inconsistent with his plea;
  • lie either during sex-offender treatment or during his Boykin colloquy; or
  • forfeit his right to an Alford plea.

Interestingly, the majority and dissent seem to differ about whether Carroll ever raised the plea agreement argument in the trial court in the first place. Compare Slip Op. 4 ("[h]e did not argue that the court could not find him in violation because of the terms of any plea agreement") with id. at 23 ("[h]e contended that the trial court could not find that he violated his probation because the trial court accepted his Alford plea under the plea agreement....Further, appellant claimed that requiring him to admit to the crime would be 'a breach of the plea agreement....'"). This strikes me as a key--and potentially dispositive--issue in the case.

Lessons from Carroll

  1. QP/AEs are the Crux of Your Appeal. We've said it before,and we'll say it again: the questions presented/assignments of error are the single most important part of your petition for appeal. They should be the first thing you draft and the last thing you tweak. It's an exaggeration to say that everything else in the petition is window dressing--but not much of an exaggeration. In Carroll, the dissent got the better of the legal argument, but that offers no comfort to the appellant, who is now stuck with a rape conviction. The whole problem could have been avoided by tweaking the question presented.
  2. Your Appeal Starts in the Trial Court. You need to conduct your strategy in trial court with an eye toward any possible appeal. This means thinking through the key issues and arguments for appeal before trial, and knowing which ones you want to preserve. This is crucial, because the first appellate deadline--the contemporaneous objection rule--comes in trial court. If you miss this deadline, it really doesn't matter what how clever an argument you construct on appeal.
  3. Good Discussion of Alford Pleas. Readers who do criminal law/appeals may find the opinion's in-depth treatment of Alford instructive.

Finally, did anyone else catch Above the Law's brilliant piece on General Kagan's pantsuits? It's probably the best piece of legal writing from Bizarro World since Justice O'Connor's opinion in Walker v. Prince George's County.

Walker, in case you missed it, is a perfectly surreal decision from the Fourth Circuit earlier this summer. Justice O'Connor, writing for a panel that included Judge Wilkinson and District Judge Anderson, opened with these immortal words: "This is a case about a wolf named Dutchess." Then it got weird.

Happy court week, and best of luck to everyone arguing in Richmond.
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Career-Limiting Mistake #37: The "Satirical" Question Presented

Posted on August 17, 2009 by Jay O'Keeffe

Apologies for the delay since my last post. I was tied up in trial for part of last week, and recovering for the rest of it. I was so busy, in fact, that I almost missed this post from the Volokh Conspiracy about Newman v. Commonwealth, 2009 Va. App. LEXIS 360, 2009 WL 2431289 (Va. Ct. App. Aug. 11, 2009).

Newman deals with a "satirical" question presented. It's as bad as it sounds. The actual question presented reads: 

Is it a violation of the Establishment Clause of the First Amendment to the Constitution of the United States when the manufacturer of the equipment used to test breath in driving under the influence cases refuses to divulge to any state or Federal agency, to any court, to any defendant, to any prosecutor or to any trier of fact the information programmed into the equipment and which controls the operation of and the results obtained from the equipment[?] Is it a further violation of law that the Commonwealth requires the courts, the prosecution, the defense and the triers of fact to take on faith alone that the information programmed into these machines is correct?

Crickets. The appellant had to defend this QP before a panel consisting of Chief Judge Felton and Judges Frank and Petty. One gathers that the argument did not go well:

At oral argument, appellant's counsel informed the Court that appellant's "question presented" concerning the Establishment Clause of the First Amendment to the United States Constitution was "satirical" in nature. Rule 3.1 of the Rules of Pro-fessional Conduct states, "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law."

For good measure, the Court explains that because "appellant's 'questions presented,' enumerated 1 through 5 in her opening brief and listed immediately below, fail to allege any trial court error, we will not consider them on appeal. See Rules 5A:12(c), 5A:20."

And we're still in the introduction. At least the opinion was unpublished.

A few lessons that we can draw from Newman:

  1. The question presented/assignment of error is the most important part of your brief. Treat it that way. You should spend more time on this than any other part of the brief, because it can win or lose the whole appeal. And your QP/AE absolutely must explain what the trial court did wrong. I've found two approaches helpful in making sure that it does so. One is to set up your QP/AE as a short (< 75 word) syllogism, with a major premise (legal rule), minor premise (key facts), and a conclusion. Another is to write your QP/AE as the topic sentence of the opinion that you would like to receive: "The trial court erred by x because y."
  2. Lawyers are not funny. Really. We're not even close. On the O'Keeffe scale of things that are terribly unfunny, lawyers fall somewhere between toxic mold and Norbit. And appeals are particularly serious. Newman, after all, was a criminal case, and one the defendant had lost below. Humor has no place whatsoever in an appellate brief or argument. Whenever I try to make this point, someone invariably brings up the story that Ted Olson said something funny in oral argument once. Two points in response. First, he's Ted Olson. Second, here's the joke he supposedly told: One of the justices prodded him to answer a question, saying something like, "It's an easy question, counselor." To which he responded: "I know, Your Honor. It's the answer that's difficult." There it is: the high-water mark of appellate humor.

Finally, although it's a little off-topic, I had a chance to grab a beer this weekend with my law-school classmate, the (urban) legendary Tom Cotton. Tom--Mr. Cotton to those of us in Section 1--was back from tours in Iraq and Afghanistan, and is finishing up his time on active duty. Congratulations, Tom, and thank you for your service. 

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