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AG’s office fights ’sea change’ in rehearing

Alan Cooper//July 13, 2009

AG’s office fights ’sea change’ in rehearing

Alan Cooper//July 13, 2009//

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The Virginia attorney general’s office has used almost apocalyptic language in a petition for rehearing in the Supreme Court of Virginia on what at first might appear to be a minor point in the reversal of a conviction for receiving stolen property.

“[T]he court’s ruling will work a sea change in appellate practice and effectively create an unprecedented rule of procedural default for appellees, and will have done so without having the issue briefed and argued,” according to the petition filed last week.

So just what did the court do in the case of Whitehead v. Commonwealth (VLW 009-6-061), decided June 4?

The court refused to consider alternative theories for upholding a conviction of receiving stolen property because they were raised for the first time on appeal.

The issue arose from property that Charlene Marie Whitehead acknowledged that she knew that her boyfriend had stolen and brought to their apartment. She was charged under Virginia Code §§ 18.2-108 and 18.2-104 with receiving stolen property or aiding in its concealment.

The prosecution contended that Whitehead was in “constructive receipt” of the property because she acknowledged that she and the couple’s daughter had benefited from the sale of the stolen goods.

The Virginia Court of Appeals relied on a 1919 New York case in affirming Whitehead’s conviction on that ground.

Writing for a unanimous court, Justice Donald W. Lemons said, “[W]e have never recognized that manner of receipt for the purposes of this offense in our decisions” and distinguished Virginia’s statute from that of New York.

The court then refused to consider the argument that Whitehead possessed the stolen property itself under the doctrine of constructive possession because the prosecution did not pursue that point in the trial court once the judge had accepted its theory of constructive receipt.

Lemons acknowledged that the Supreme Court often sustains the correct result reached for the wrong reason in “a proper case” and assigns the correct ground.

But, Lemons said, “[C]ases in which the party seeking affirmance failed to present the argument in the trial court, such that the trial court did not have an opportunity to rule on the argument, are not ‘proper cases’ for the application of the doctrine. This principle applies in criminal as well as civil cases.”

Nor did the prosecution rely at trial or on appeal to the Virginia Court of Appeals on a theory that Whitehead aided in the concealment of the stolen property, Lemons said.

The court of appeals therefore erred in using the “aiding” theory as a basis for affirming Whitehead’s conviction, Lemons concluded.

In its petition for rehearing, the AG’s office said the Supreme Court had used much too broad a brush in refusing to assign “the right result for the wrong reason.”

“In effect, the Court has created an unprecedented rule of procedural default for an appellee in both civil and criminal cases that will have sweeping effects on the practice of law in the Commonwealth…,” according to the petition signed by Assistant Attorney General Jennifer C. Williamson.

“It is well established that the burden is upon the appellant to demonstrate error in the record while the appellee may argue any evidence in support of affirming the trial court,” Williamson wrote. “The difference in treatment stems from the appropriate presumption that the trial court’s judgment is correct and should be affirm to prevent a squandering of judicial resources when the court’s ultimate decision is sound.”

The ruling “wrongly lumps together an appellee and an appellant and creates an unwarranted and cumbersome requirement for trial litigation in both civil and criminal cases that frequently will result in a needless reversal of valid judgments. Moreover, the Court’s decision is both incongruous and inequitable, i.e., an appellant, but not an appellee, may invoke the ‘ends of justice’ exception to Rule 5:25 and 5A:18, and a defendant, but not the Commonwealth, has an unfettered right of appeal.”

Monica T. Monday, an appellate specialist in Roanoke, said the case represents a head-long collision of two principles: that an argument must be raised in the trial court to be considered on appeal and that a ruling may be affirmed if the trial court reached the correct result for the wrong reason.

“It appears that the Court’s ruling narrows the availability of the ‘right result, wrong reason’ rule to only those arguments advanced by the prevailing litigant in the trial court,” Monday said.

“Some trial lawyers have probably viewed the ‘right result, wrong reason’ doctrine as an escape hatch when a lead argument fails to persuade an appellate court – but that is not so under Whitehead.

“For this reason, the case undoubtedly will be a concern for many trial lawyers. However, having said that, the Court has always required a litigant to raise every argument, position or theory in the trial court first to protect the record,” Monday said “Now the Court has said that the failure to do so will also preclude application of the ‘right result, wrong reason’ rule.”

Frank Friedman, also an appellate specialist in Roanoke, agreed that “it is very difficult to reconcile the competing doctrines.”

He added, “It’s critical that lawyers know what they have to do to preserve their appeal points. Lately, appellees, who clearly benefited under the ‘right for the wrong reason’ doctrine, seem to be facing a higher standard in many cases.”

Monday noted another important point for both trial and appellate attorneys: “One never knows whether one will be the appellant or the appellee, as the Commonwealth learned in this case.”

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