It’s all oxycodone to the court of appeals

To say that Jimmy Roger Lane was caught with the goods would be an understatement.

In one pants pocket he had 62 tablets of oxycodone , 17 tablets of hydrocodone and two plastic bags with a total of $4,128 in cash. In the other, he had $181 in cash and 28 tablets of Endocet, a combination of oxycodone and acetaminophen. In his garage, police found a plastic bottle with a dropper lid that contained 7.8 milliliters of liquid oxycodone.

Lane didn’t contest that he was guilty of one count of possessing oxycodone with intent to distribute it, but he was convicted of three counts on the theory that he had different types of the drug in three different locations.

That was a bit much for the Virginia Court of Appeals on Tuesday. The relevant double jeopardy inquiry is whether the defendant had a different intent for each stash, the court said in Lane v. Commonwealth. There was no evidence on that point and, “[w]ithout such evidence, we could only speculate as to whether location, packaging or different physical appearance would prove three separate intents,” the court said.

The question remains as to how much good a remand for resentencing on one count rather than three will do Lane. He did not appeal his conviction of four counts of distributing oxycodone.

He lost on the point that might have exonerated him on all the possession with intent counts. He contended that the search warrant that led to his arrest was defective because the only assertion in the affidavit as to an informant’s reliability was that he had “given information in the past that has led to the seizure of illegal narcotics.”

The court of appeals found that the “good faith” exception to the Fourth Amendment applied, although its analysis listed factors that appeared to go more to the observations alleged by the informant than to his reliability.

‘Break in service’ unlikely for Humphreys

Granted, the General Assembly’s treatment of Court of Appeal Judge Robert J. Humphreys is shameful.

No one seems to suggest that he is unworthy of appointment to a second eight-year term, but he has fallen victim to political infighting that resulted in the failure of the legislature to fill about 30 vacancies and reappoint him and fellow CAV Judge Jean Harrison Clements.

Although technically still in session, the legislature can’t do anything about filling those vacancies until April 23 when it reconvenes. Humphreys’ term expires April 15, so he will be off the bench at least a week.

Assuming that the General Assembly comes to its senses and takes action on the pending judicial appointments, as it is expected to do by the end of May at the latest, there will be no effect on his retirement benefits.

Dire consequences for a “break in service” are largely a myth, according to Brian Goodman, legal affairs and compliance coordinator for the Virginia Retirement System. Humphreys will get credit for any month in which he is employed by the state. Even if he were to have a month with no service, he would lose only that month, and his benefits would continue to accrue with his reappointment, Goodman said.

Circuit judge read lower court transcript before hearing custody appeal

What part of de novo don’t you understand?

That was the question the Virginia Court of Appeals had for Colonial Heights Circuit Judge Timothy J. Hauler.

A mother appealed a juvenile and domestic relations district court’s award of custody of her minor child to its father. At the beginning of the custody hearing Hauler told the mother’s attorney, Neil Kuchinsky, that he had read the transcript of the juvenile court proceeding and the result would be the same unless he presented new evidence. And if it is the same, Hauler said, “it is going to cost you client an awful lot of money” in attorney’s fees.

Kuchinsky objected to Hauler’s having read the transcript and unsuccessfully asked him to recuse himself. Hauler noted that the transcript was in the record, “inexplicably” so, appellate Judge Sam W. Coleman III noted, but Kuchinsky said he had not had a previous opportunity to object to its inclusion.

Hauler also awarded custody to the father and assessed attorneys’ fees of $16,918.50 and $2,507.15 in costs, including an award of fees and costs that was higher than the amounts originally awarded in juvenile court.

The CAV panel reversed and remanded the case for trial before a different judge. “[T]he trial judge abdicated his responsibility to independently weigh the evidence, make his own credibility determinations, and decide in the exercise of his sound discretion in which parent custody should be vested so as to serve the best interest of the child,” Coleman wrote in Alexander v. Flowers. “Instead, as a punitive measure for pursuing her right to a trial de novo the court imposed a punitive award of attorney’s fees.”

Goodwyn, Millette elected

Supreme Court Justice S. Bernard Goodwyn and Court of Appeals Judge LeRoy F. Millette Jr. won’t have a break in service after all.

Their appointments by Gov. Timothy M. Kaine would have expired tonight in the absence of action by the General Assembly, and they became the pawns in an assertion of institutional clout by Republicans in the House of Delegates described in a post on Monday and in more detail today by Jeff E. Schapiro in the Richmond Times-Dispatch.

Just how much horse trading went on wasn’t clear immediately, but Goodwyn and Millette were elected this afternoon by a unanimous vote in both houses.

It all seems a little silly, especially when the Republicans acknowledged all along that Goodwyn and Millette were excellent choices for their respective positions.

Time running on Supreme Court, CAV nominees

Justice S. Bernard Goodwyn and Judge LeRoy F. Millette Jr. of the Virginia Court of Appeals could be out of a job Saturday.

Nobody expects that to happen, but their appointments by Gov. Timothy M. Kaine expire Friday in the absence of action by the General Assembly.

Del. David B. Albo, R-Fairfax, chairman of the House Courts of Justice Committee, said Goodwyn and Millette are excellent appointments, but the House has, in effect, placed a hold on electing them and also on reelecting court of appeals Judges Jean Harrison Clements on Robert J. Humphreys, whose terms expire later in the year.

Albo and Del. Jerry G. Kilgore, R-Scott, another powerful member of the courts committee and chairman of the House Commerce and Labor Committee, said the action is intended as a reminder to the Democratic governor and Senate they still have to deal with the House and Republicans on judicial appointments.

They suggested that House Republicans are looking toward having a substantial say in filling a vacancy on the State Corporation Commission created by the retirement of Theodore V. Morrison Jr. and an empty seat on the Workers’ Compensation Commission created by the departure of Lawrence D. Tarr.

The position of the Republicans may signal hardball in filling judicial vacancies in the lower courts as well. They were contentious enough when the Republicans controlled both houses and only figure to get worse with control split between the two houses.

The candidates historically have been chosen by a caucus of the party in control of each house of the legislature, with legislators from the area where the judge will serve typically having the final say.

Although it’s a little early for the horse-trading to start, Kilgore said, the governor and circuit judges may have more seats to fill than is usually the case. They pick lower court judges if the legislative session expires without a seat being filled.

Prince William judge appointed to court of appeals

Gov. Tim Kaine appointed Prince William Circuit Judge LeRoy F. Millette Jr. today to fill the Virginia Court of Appeals vacancy created by the retirement of Judge James W. Benton Jr.

Millette, who has a background as a law firm associate and partner, a sole practitioner and a state prosecutor, was named a general district judge in 1990 and elevated to the circuit court in 1993.

He is a graduate of the College of William and Mary and its law school.

Millette, 58, probably is best known for presiding over the capital murder trial of sniper John Muhammad.

“To me as a trial lawyer, temperament is the key, and Lee has always had that,” said John D. Whittington, a Prince William lawyer who tried cases against Millette when Millette was in private practice and has appeared before him after he was appointed to the bench. “He’s got the whole package.”

Appeals court to convene in Fredericksburg

The Virginia Court of Appeals usually hears writs in four different cities across the commonwealth. but it doesn't get to Frederickburg very often.

According to The Free Lance-Star, the intermediate court was last there about 10 years ago.

But the court will be in Fredericksburg tomorrow as part of the reopening of the newly renovated circuit courtroom. About 20 writ panels are scheduled.

Bar groups review state appeals court candidates

The judicial nominations committee of the Virginia State Bar has found five candidates highly qualified to fill the vacancy created by the retirement Court of Appeals Judge James W. Benton Jr.

They are:

● Chesterfield County Circuit Judge Michael C. Allen
● Frank K. Friedman, a partner in the Roanoke firm of Woods Rogers PLC
● Chesapeake Circuit Judge S. Bernard Goodwyn
● Prince William County Circuit Judge William D. Hamblen
● Prince William County Circuit Judge Leroy F. Millette Jr.
● Chief Deputy Attorney General William C. Mims

The committee earlier had found all but Friedman to be highly qualified to fill the vacancy created by the retirement of Elizabeth B. Lacy. Friedman did not offer himself as a candidate for the Supreme Court spot. The committee found L. Thomas Booker Jr., a military judge based in Norfolk, and Mary Jane Hall, a partner at Kaufman & Canoles PC in Norfolk, to be qualified.

The Virginia Women Attorneys Association highly recommended Friedman and Goodwyn and recommended Allen and Millette for the court of appeals seat. It found Booker, Hall, Hamblen, Mims and Sharon M.B. Pigeon, an assistant attorney general to be qualified.

The association had highly recommended Goodwyn and Richmond Circuit Judge Margaret P. Spencer for Lacy’s seat and recommended Allen and Court of Appeals Judges Walter S. Felton Jr. and Robert P. Frank.

The Old Dominion Bar Association found Felton, Goodwin, Kelsey and Spencer to be highly qualified for Lacy’s seat and urged Gov. Timothy M. Kaine to appoint Spencer to fill it. It found Allen, Booker, Frank, Hamblen, Millette, Mims and Arelia S. Langhorne, a sole practitioner from Lynchburg, to be qualified.

For the court of appeals vacancy, the ODBA found Goodwyn and Friedman to be highly qualified and Allen, Booker, Hamblen and Millette to be qualified.

Kaine will fill both seats, but he is expected to confer with legislative leaders before doing so because the General Assembly will have the final say on the appointments.

Beach prosecutor’s position vindicated

Virginia Beach Commonwealth’s Attorney Harvey L. Bryant III has personal and institutional reasons to be pleased with Tuesday’s ruling by the Virginia Court of Appeals that judges can defer findings of guilt only with the express approval of the General Assembly.

Bryant is the president of the Virginia Association of Commonwealth’s Attorneys. Gibson v. Commonwealth “substantiates the position we have taken all along,” he said.

From a personal standpoint, it vindicates his insistence that Virginia Beach judges not defer judgment in drunken driving cases, as some of them have done. That insistence got him in trouble with the judges, who filed a complaint with the Virginia State Bar contending that he undermined the integrity of the legal system by accusing them of illegal conduct.

Bryant responded that the complaint overstated his comments to a Republican breakfast gathering but acknowledged that he had told the group that he thought judges were exceeding their authority in deferring judgment without legislative authority to do so. He also admitted that he has kept a record of instances in which judges have done so and suggested that he would make that record available when they come up for reappointment. The bar complaint remains under investigation.

He noted that Gibson is still subject to possible review by the full court of appeals or by the Supreme Court of Virginia. “I don’t suppose this is the end of it, but I hope we’re getting close to the end of it,” he said.

See Monday’s VLW for a fuller account of the opinion and the issue.

Benton to retire from Court of Appeals

Judge James W. Benton Jr., the last of the original members of the Virginia Court of Appeals, will retire Oct. 1.

Benton (photo at right) turns 64 in September. He is also the state’s senior appellate judge.

A native of Norfolk and a graduate of Temple University and the University of Virginia law school, Benton was appointed to the court of appeals when it was created in 1985. He had been in private practice in Richmond before the appointment. He was and is the only black member of the court.

Benton generally is regarded as the most liberal member of the court and dissents far more often than any other judge, usually on behalf of criminal defendants. Despite his frequent disagreement with his colleagues, he is well respected by the other members of the court for his intelligence, work ethic and pleasant demeanor.

Because Benton’s retirement will occur when the General Assembly is not in session, Gov. Timothy M. Kaine will choose his successor. The legislature will fill the position next year, so Kaine is expected to confer with Republican legislators about the appointment.