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No more second chances for CAV assignments of error

It’s official: the Court of Appeals will dismiss your petition for appeal if you fail to follow the rules for assignments of error.

As we reported in March, the court had asked lawyers to address whether a 2011 Supreme Court order signaled the need for dismissal when assignments of error fell short of the required level of detail. Now, with two published orders, a Court of Appeals panel provides an answer: “Yes, the penalty is dismissal.”

Tuesday’s ruling in Chatman v. Com. announced the end of the court’s prior practice of allowing amendments to non-conforming AOEs after the filing deadline.

The panel held that – under 2010 rule changes – failure to properly set forth assignments of error in a petition deprives the court of jurisdiction and requires dismissal. The previous practice “is no longer permissible,” the court said.

The ruling in the Chatman order means dismissal for three criminal defendants hoping for appellate relief. Roberto Chatman’s assignments of error failed to include any page references to where he objected to trial court decisions.

Donte Brooks did include page references to his preservation of errors, but they were expansive – he cited to the entire hearing on a motion to suppress and to the entire trial transcript on a sufficiency claim. The majority found such broad citations would require something “akin to a scavenger hunt” for the court to locate the purported error.

Steve Whitt’s assignment of error claimed his conviction was “based upon insufficient evidence as a matter of law.” Without more, the court held, Whitt’s lawyer essentially invited the court to “delve into the record and winnow the chaff from the wheat.”

Judge Larry G. Elder dissented on the need for jurisdictional dismissal for “minor” petition deficiencies. “I believe a more lenient interpretation of the Rules better serves public policy,” he wrote. He favored giving appellants a chance to fix their briefs, thereby avoiding additional requests for delayed appeals.

Elder did not dissent in a separate published order kicking a fourth criminal appeal on similar grounds. In that case, where the defendant assigned error on a different legal basis from that argued at trial, the same court panel dismissed the appeal, finding it was “powerless to do otherwise.”

By Peter Vieth

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