No Guilty Plea Withdrawal After Colloquy

Habeas Petition, Direct Appeal Can Co-Exist

By Deborah Elkins
Published: April 23, 2013
Tags: Criminal, Justice Cynthia D. Kinser, Supreme Court of Virginia

A petition for a writ of habeas corpus and a direct appeal of larceny convictions can proceed simultaneously in the Supreme Court of Virginia, and that court dismisses this petition alleging ineffective assistance of counsel as petitioner has not shown that, but for his counsel’s alleged errors, the outcome of his trial would have been [...]

Firearms Statute Allows Proof of Multiple Priors

By Deborah Elkins
Published: April 23, 2013
Tags: Criminal, Justice William C. Mims, Supreme Court of Virginia

Although a Virginia statute prohibits firearm possession by a person “previously convicted of a violent felony,” the trial court did not err in allowing proof of five prior convictions to prove the possession offense, and the Supreme Court of Virginia affirms defendant’s conviction under Va. Code § 18.2-308.2(A). Where the existence of one or more [...]

Inadequate Assignment Dismissed

By Deborah Elkins
Published: April 22, 2013
Tags: Criminal, Judge Randolph A. Beales, Virginia Court of Appeals

The Court of Appeals affirms defendant’s bench trial convictions for construction fraud under Va. Code § 18.2-200.1; defendant’s argument about statutory elements is waived under Rule 5A:18 for lack of presentation to the trial court; defendant’s sufficiency objection is inadequate under Rule 5A:12(c)(1)(ii) and must be dismissed absent a request for leave to amend, although [...]

Circumstantial Evidence Proves Counterfeiting

By Deborah Elkins
Published: April 22, 2013
Tags: Criminal, Judge William G. Petty, Virginia Court of Appeals

The Court of Appeals affirms defendant’s conviction for possessing 20 counterfeit bills with intent to use them to pay gambling trip expenses; the evidence as a whole shows knowledge and intent—the bills were obviously fraudulent; their quantity, segregation, defendant’s lack of employment and travel destination all support intent to pass the counterfeit money as true. [...]

Objection to Ex Parte Communication Waived

By Deborah Elkins
Published: April 22, 2013
Tags: Criminal, Judge Walter S. Felton Jr., Virginia Court of Appeals

Defendant is not entitled to reversal of his jury trial conviction for malicious wounding after he failed to timely object to the trial court’s sua sponte written responses to jury questions with no counsel present, the Court of Appeals says; Rule 5A:18 requires a timely objection and we will not sua sponte apply the good [...]

Attempted Murder Not Abduction

By Deborah Elkins
Published: April 22, 2013
Tags: Criminal, Judge Walter S. Felton Jr., Virginia Court of Appeals

Evidence sufficient to prove defendant attempted to murder his wife with a shotgun is not sufficient to prove he abducted four other family members present, the Court of Appeals says; no evidence shows defendant detained them with intent to deprive them of their liberty; their fear about what might happen did not prevent them from [...]

Observed Violations Allow Stop

By Deborah Elkins
Published: April 22, 2013
Tags: Criminal, Judge Walter S. Felton Jr., Virginia Court of Appeals

On commonwealth’s appeal, the Court of Appeals reverses suppression of marijuana and cocaine found on defendant’s person incident to his arrest after he fled from police; the numerous traffic violations the pursuing officer observed provide probable cause regardless of his original erroneous suspicion defendant was a murder suspect at large. One afternoon in February, a [...]

Restitution Amount Remanded

By Deborah Elkins
Published: April 22, 2013
Tags: Criminal, Judge William G. Petty, Virginia Court of Appeals

Defendant convicted of embezzling trust fund payroll taxes cannot be required to repay both the embezzled funds and the unpaid tax liability, the Court of Appeals says; the trial court’s $1.4 million restitution order must be reversed and remanded to determine how the victim impact statement was calculated and how the embezzlement caused the losses. [...]

Police Entry at ‘Home Study’ Visit Illegal

By Deborah Elkins
Published: April 22, 2013
Tags: Judge D. Arthur Kelsey, Search & Seizure, Virginia Court of Appeals

Police called as backup when a social worker planned to visit defendant’s home to conduct a custody-related home study did not have probable cause to enter defendant’s home and the marijuana and guns found in plain view in the home should have been suppressed, the Court of Appeals says, as it reverses defendant’s conviction for [...]