Conley v. Commonwealth

• Decision Date: 01 November 2012
• Docket Number: Record No. 120139.
• Citation: 733 S.E.2d 927
• Parties: Donald Joseph CONLEY v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

733 S.E.2d 927

Donald Joseph CONLEY

v.COMMONWEALTH of Virginia.

Record No. 120139.

Supreme Court of Virginia.

Nov. 1, 2012.

Andrew G. Wiggin, Chesapeake, for appellant.

Eugene Murphy, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: KINSER, C.J., LEMONS, GOODWYN, MILLETTE, and MIMS, JJ., and RUSSELL and LACY, S.JJ.

Opinion by Senior Justice CHARLES S. RUSSELL.

This appeal presents the question whether an equally divided Court of Appeals, sitting en banc, may reverse a judgment previously entered by a panel of that Court.¹ The question arises in the context of a petition for a writ of actual innocence brought within the original jurisdiction of the Court of Appeals.

Facts and Proceedings

In February 2004, Donald Joseph Conley was convicted in the General District Court of the City of Chesapeake of driving under the influence (DUI). He was convicted in the same court of a second DUI offense in April of that year. In November of that year, he was convicted in the Circuit Court of the City of Chesapeake of a felony third offense, DUI after being twice convicted of the same offense within ten years. He was sentenced to five years' imprisonment, with three years suspended. His appeals were unsuccessful.

In 2005, Conley filed in this Court a petition for a writ of habeas corpus with respect to his second (April 2004) misdemeanor DUI conviction, one of the two predicate offenses underlying his felony conviction.² He claimed that he had asked his attorney to appeal the April 2004 conviction to the circuit court but that his attorney had failed to do so. At the Commonwealth's request, this Court, in March 2006, granted him a belated appeal of the second DUI conviction. No further action was taken in that case until counsel was appointed to represent Conley in November 2009. In February 2010, the circuit court granted Conley's motion to dismiss the second DUI case for denial of Conley's right to a speedy trial.

In March 2010, Conley filed a petition in the Court of Appeals for a writ of actual innocence with respect to his felony conviction. That petition is the subject of this appeal. Conley contended that he was innocent of the felony because one of the requisite predicate misdemeanor convictions had been dismissed with prejudice because of a violation of his speedy trial rights.

The case was heard by a three-judge panel. On June 15, 2011, the panel, one judge dissenting, granted Conley's petition and remanded the case to the circuit court for resentencing on the lesser-included offense of DUI, second conviction. The Commonwealth filed a petition for a rehearing en banc, which the Court granted, staying the panel decision.

On November 15, 2011, the Court of Appeals, with ten judges sitting en banc, heard arguments on the petition. On December 16, 2011, the Court entered an order stating: “Upon rehearing en banc, the petition for writ of actual innocence is dismissed without opinion by an equally-divided Court. Accordingly, the order previously entered by a panel of this Court on June 15, 2011 is withdrawn.” The order identified the five judges voting to grant the writ and the five judges who had voted to refuse it. We awarded Conley an appeal.

Analysis

This appeal presents a pure question of law to which we apply a de novo standard of review. Courtney v. Commonwealth, 281 Va. 363, 366, 706 S.E.2d 344, 345 (2011). In deciding petitions for writs of actual innocence, the Court of Appeals acts as a court of original jurisdiction. Haas v. Commonwealth, 283 Va. 284, 292, 721 S.E.2d 479, 482 (2012). Therefore, there was no decision of another tribunal before the Court of Appeals for appellate review in the present case. Rather, the Court sitting en banc had before it for review only the decision of its own panel.

Code § 17.1–402(E) is dispositive of the question before us. It provides:

The court may sit en banc with no fewer than eight judges. In all cases decided by the court en banc, the concurrence of at least a majority of the judges sitting shall be required to reverse a judgment, in whole or in part.

This language...