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.
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.
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
- 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.
- 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.
- 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.