Bevel v. Commonwealth
| Decision Date | 04 November 2011 |
| Docket Number | 102323.,Record Nos. 102246 |
| Citation | 717 S.E.2d 789,282 Va. 468 |
| Parties | James Luther BEVEL v. COMMONWEALTH of Virginia. |
| Court | Virginia Supreme Court |
OPINION TEXT STARTS HERE
Bonnie H. Hoffman, Deputy Public Defender, for appellant.
Virginia B. Theisen, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Present: KINSER, C.J., LEMONS, GOODWYN, MILLETTE, MIMS, and McCLANAHAN, JJ., and KOONTZ, S.J.
Opinion by Senior Justice LAWRENCE L. KOONTZ, JR.
In these appeals, we consider what effect the death of a convicted criminal defendant has on a pending appeal and the underlying criminal prosecution. Our consideration of these issues invokes the determination of the extent of the application of the so-called “abatement doctrine” in such instances under the law of Virginia. We have not addressed this issue previously in a reported opinion.
Because the issues raised by these appeals concern only the proceedings that followed the defendant's death, a brief summary of the underlying criminal conviction of the defendant will suffice. On May 21, 2007, James Luther Bevel was indicted by the Grand Jury in the Circuit Court of Loudoun County for violating Code § 18.2–366 by having sexual relations with his daughter who was at the time between the ages of 13 and 18. The felony indictment was founded on an allegation made by Bevel's adult daughter that her father had sexual relations with her repeatedly during a two-year period between 1992 and 1994 while they were living in Loudoun County. At trial, the victim testified that these acts of sexual abuse began when she was 6 years old and living in another state. Bevel was convicted in a jury trial on April 10, 2008. The circuit court entered a final sentencing order on October 27, 2008, imposing the jury's verdict of 15 years imprisonment and a fine of $50,000.
The following facts reflect the procedural history of the subsequent appeals in this case. On November 4, 2008, Bevel's counsel, from the Office of the Public Defender, noted an appeal of Bevel's conviction. On December 8, 2008, counsel filed a notice of filing of transcripts, thus completing the record of the trial for transmission to the Court of Appeals as required by Rule 5A:8(b). The record was duly received by the Court of Appeals, and the appeal was assigned Record Number 2646–08–4 (hereafter, “the merits appeal”).
On December 29, 2008, Bevel's counsel filed a “notice of death” in the circuit court and the Court of Appeals averring that Bevel had died on December 19, 2008. Simultaneously, counsel filed a motion to withdraw as counsel in the Court of Appeals, asserting that as a result of Bevel's death she was unable to proceed with the representation as she “no longer [had] a client with whom to consult or from whom to take direction regarding this appeal.” Within none of these pleadings did counsel request that the prosecution abate. On January 23, 2009, the Court of Appeals denied the motion to withdraw as counsel.
Thereafter, Bevel's counsel filed a “motion to dismiss” in the circuit court. Within the motion, counsel noted that Code § 8.01–20 allowed, in the discretion of the court, for the abatement of a civil case in which a party had died while the case was pending appeal. Conceding that there were no reported appellate cases in Virginia addressing the abatement or dismissal of a criminal prosecution in such circumstances, counsel noted that in a prior unreported decision the circuit court had ruled that when a defendant dies while his appeal is pending, “[the] conviction must be dismissed.” Counsel further averred that abatement ab initio of criminal convictions when the defendant dies while the conviction is pending appeal is the rule in a majority of other jurisdictions that have considered the question. By an order dated February 26, 2009, the circuit court denied the motion to dismiss.
On March 25, 2009, Bevel's counsel filed a “motion to abate conviction ab initio ” in the Court of Appeals. Reciting the same argument for abatement of the entire case as that contained in the motion to dismiss filed in the circuit court, counsel further noted that continuation of the appeal was “inappropriate as counsel for the deceased cannot fulfill ... her ethical obligations, to wit: counsel cannot communicate with her client and therefore lacks authority either to proceed with the appeal or to withdraw the appeal.” She further maintained that the Commonwealth would suffer no prejudice from the abatement of the conviction “as it can neither retry the accused if his appeal succeeds nor impose punishment upon the accused if his appeal fails.” The Commonwealth did not file a response to this motion to abate.
On March 27, 2009, the Court of Appeals entered an order suspending the time for filing the necessary petition for appeal in the merits appeal.1 On August 26, 2009, the Court entered an order remanding the case to the circuit court “with instructions to hold a hearing and to abate the prosecution ab initio, unless good cause is shown by the Commonwealth not to do so.”
The circuit court complied with the mandate of the Court of Appeals' order by conducting a hearing on September 10, 2009. In support of its contention that the conviction should not abate, the Commonwealth presented testimony from the victim and one of her sisters who also claimed that Bevel had sexually abused her. Both women stated, among other reasons, that they opposed having the conviction abate because acknowledgement by the court of their father's guilt provided them with a sense of closure and validation.
On September 30, 2009, the circuit court entered an order denying the motion to abate Bevel's conviction, finding that the Commonwealth had an interest in maintaining the conviction for the benefit of the victim and as a “powerful symbol” that a guilty verdict represents. The court further concluded that following conviction the presumption of innocence no longer applied and, thus, abatement should not be favored in such cases. For these reasons, the court ruled that the Commonwealth had established good cause for not abating the conviction.
Bevel's counsel noted an appeal from the judgment of the circuit court finding that there was good cause not to abate the conviction. The Court of Appeals treated the appeal as if it were from a separate proceeding and assigned it Record Number 2373–09–4 (). After receiving briefs and hearing oral argument, the Court issued an unpublished opinion affirming the judgment of the circuit court. Bevel v. Commonwealth, Record No. 2373–09–4, 2010 WL 3540067 (September 14, 2010).
The Court of Appeals first reviewed similar cases in that Court and in the Supreme Court, noting that prior dispositions of criminal appeals when the defendant had died were inconsistent, with the appellate court in which the appeal was pending sometimes abating the conviction and other times simply dismissing the appeal and leaving the conviction intact. Id., slip op. at 5–6. Thus, the Court concluded that there was no clear authority in Virginia for routinely abating a criminal conviction ab initio when the defendant dies while pursuing an appeal. Id., slip op. at 6.
The Court then considered whether the circuit court had correctly determined the factors to consider in determining whether there was good cause not to abate the conviction and whether it properly applied the facts from the hearing in determining that Bevel's conviction should not abate. The Court held that these matters were committed to the circuit court's discretion and found no abuse of that discretion. Id., slip op. at 7. Accordingly, the Court affirmed the judgment of the circuit court refusing to abate Bevel's conviction. Id., slip op. at 8.
On October 14, 2010, the Court of Appeals issued a rule to show cause in the merits appeal, which required Bevel's counsel to show why that appeal should not be dismissed as moot in light of the Court's judgment in the good cause appeal. In her response to the show cause, Bevel's counsel maintained that dismissal of the merits appeal would be premature, as a petition for rehearing en banc was pending in the good cause appeal, and, failing that, she intended to appeal the judgment to this Court. Counsel also contended that the dismissal of the merits appeal would render the appeal of the abatement issue equally moot, and deny the Court of Appeals sitting en banc and this Court jurisdiction to consider whether abatement had been properly denied. Notably, although counsel referenced an assertion made by the Commonwealth in the circuit court “that Mr. Bevel's death should not necessarily act as a bar to hearing the [appeal from the underlying conviction] on its merits,” she did not retreat from the position first stated in her motion to withdraw as counsel that she could not ethically pursue the appeal, nor did she contend that the appeal could go forward in its current posture without an appellant or with the substitution of a personal representative of Bevel's estate or other party. Rather, counsel only requested that the merits appeal remain suspended while she pursued the appeal of the abatement issue.
After the petition for rehearing en banc on the good cause issue was denied, Bevel's counsel noted an appeal of that judgment to this Court on November 1, 2010. On November 16, 2010, the Court of Appeals entered an order in the merits appeal dismissing the appeal as moot. Counsel noted an appeal from this judgment as well. By orders dated May 5, 2011, we awarded appeals from the Court of Appeals' judgments in the good cause appeal (our Record Number 102246) and the merits appeal (our Record Number 102323), consolidating the appeals for briefing and argument.
While we have not previously addressed in a reported opinion what effect the death of a criminal defendant has on a conviction or an appeal that is pending at the time of the...
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