Cornell v. Commonwealth

• Decision Date: 22 November 2022
• Docket Number: Record No. 1381-21-2
• Parties: Patrick Edward CORNELL v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

76 Va.App. 17

880 S.E.2d 9

Patrick Edward CORNELL

v.COMMONWEALTH of Virginia

Record No. 1381-21-2

Court of Appeals of Virginia, Richmond.

November 22, 2022

(M.G. Henkle ; Henkle Law Firm, on brief), for appellant. Appellant submitting on brief.

William K. Hamilton, Assistant Attorney General (Jason S. Miyares, Attorney General, on briefs), for appellee.

Present: Chief Judge Decker, Judge O'Brien and Senior Judge Haley

OPINION BY JUDGE MARY GRACE O'BRIEN

This case requires us to determine whether an appellant's counsel may file an appellate brief that substantively addresses certain assignments of error but submits others for our consideration under Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

A jury convicted Patrick Edward Cornell ("appellant") of aggravated sexual battery, in violation of Code § 18.2-67.3. On appeal, his attorney raises five assignments of error, but states that two of them are appealed "pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)." Counsel identifies the issues in those two assignments of error, makes the necessary representation under Anders , and moves to withdraw as to those assignments of error only.¹ He addresses the other three assignments of error on their merits.

BACKGROUND

We state the facts in the light most favorable to the prevailing party, the Commonwealth. See Zebbs v. Commonwealth , 66 Va. App. 368, 373-74, 785 S.E.2d 493 (2016). In 2019, appellant lived with his girlfriend, whose nine-year-old daughter ("K.P.")² visited every other weekend. K.P. had her own room and slept on the top bunk of a bunk bed.

One night in early 2019,³ K.P. woke to find appellant standing next to her bed. Appellant put his hand under her underwear and touched her vagina "in a circular motion" for what "felt like a long time," and then left the room. K.P. felt "a little bit of pain ... [o]n [her] vagina" after he touched her. Appellant returned and asked if she was "okay, because [she] was crying," and K.P. told him, "[N]o just go."

K.P. woke her mother, who was asleep in the living room, and told her that appellant had touched her vagina and she was afraid he might touch her again if she went back to sleep in her room. K.P.’s mother "checked" K.P.’s vagina, spoke to appellant and smelled his fingers, and then told K.P. to hug appellant and go back to bed, apparently not believing the child.

On October 14, 2020, K.P. reported the abuse to her older stepsister, father, and stepmother. K.P.’s father took her to the police station the next day, where she spoke with an investigator who described her as "polite[,] cooperative[, and] very forthcoming." K.P. explained that she had not reported the incident earlier because her mother did not believe her and she was afraid no one else would believe her either.

At trial, K.P.’s mother testified that when K.P. told her what happened, she "calmed her [daughter] down," took her into the bathroom, and discovered that K.P. had a "nasty" urinary tract infection

. K.P.’s mother stated that K.P. gets these infections frequently and, when she does, she suffers night terrors during which she sits up in bed and talks.

According to K.P.’s mother, appellant told her that he found K.P. sitting up in bed with her eyes closed and he laid her back down, covered her up, and left the room. K.P.’s mother testified that "at one point" she smelled appellant's hands, but she did not elaborate on that testimony.

K.P.’s mother also stated that K.P. tells "little fibs" and has a reputation of "not being very truthful," but she was unaware of her daughter lying about "big things." On rebuttal, K.P.’s counselor testified that K.P. was "usually honest with [her and] also the people in [K.P.’s] life" and is generally known to be truthful. K.P.’s father corroborated this testimony and testified that K.P. is "mostly truthful" with him.

Appellant testified and denied touching K.P., stating that he "would never do something like that." He did not recall the night that K.P. and her mother described in their testimony.

The court denied appellant's motion to strike, and the jury found him guilty of aggravated sexual battery.

At the sentencing hearing, appellant orally moved for a continuance. His counsel explained that he did not receive the presentence report until the preceding week due to slow mail service and, because of his trial schedule, he had only "quickly" reviewed the report with appellant earlier that day. The prosecutor objected because witnesses were present for the hearing. The court denied appellant's motion.

The prosecutor advised the court of a discrepancy between the events described in the presentence report and the evidence presented at trial. She explained that the narrative in the report might be inaccurate because the probation officer who wrote it had not been present at trial. The judge, who had presided over the trial, acknowledged the clarification, and appellant did not object to the introduction of the report. Appellant also moved to amend the sentencing guidelines by removing the enhancement for K.P.’s emotional injury; however, the court denied his motion. The court sentenced appellant to ten years’ imprisonment with all but three years and four months suspended, and three years of supervised probation.

ANALYSIS

I. "Partial" Anders Brief

Appellant's counsel notes five assignments of error in his opening brief and presents argument for three of them: (1) that the Commonwealth failed to prove his intent was to sexually gratify himself when touching K.P.; (2) that the evidence was insufficient based on K.P.’s lack of credibility; and (3) that the court erred in denying his motion to continue sentencing. Counsel also assigns two other errors: (1) that the Commonwealth failed to establish the time frame of the offense; and (2) that the court erred by including the emotional-injury enhancement on the sentencing guidelines. For these assignments of error, he asks this Court to review the record pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and moves to withdraw. No Virginia court has specifically addressed whether an appellant's counsel may file a "hybrid" or "partial" Anders brief on behalf of his client, asserting that some assignments of error are legally meritorious while others are frivolous.⁴

In 1967, the United States Supreme Court established a procedure for an attorney who concludes that his client's appeal of a criminal conviction completely lacks legal merit in Anders v. California :

[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished [to] the indigent and time allowed him to raise any points that he chooses; the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous.

386 U.S. at 744, 87 S.Ct. at 1400 (emphases added).

The Virginia Supreme Court used similarly comprehensive language when addressing an indigent defendant's right to an Anders procedure for a case appealed from the Court of Appeals:

Consistent with Anders , therefore, we hold that when an indigent's counsel conscientiously determines that an appeal to this Court would be wholly frivolous, he must so advise this Court and request permission to withdraw. Simultaneously with such request[,] ... counsel shall file a petition for appeal identifying anything in the record that arguably might support the appeal .... If, after a full examination of the record, we conclude that the appeal is wholly frivolous, we will affirm the decision of the Court of Appeals. On the other hand, if we determine that the appeal is not wholly frivolous, we will permit [a defendant's] present counsel to withdraw, appoint other counsel to represent him in his appeal , and allow time for new counsel to file an amended petition for appeal.

Brown v. Warden of Va. State Penitentiary , 238 Va. 551, 555-56, 385 S.E.2d 587 (1989) (emphases added).

Likewise, in Akbar v. Commonwealth , 7 Va. App. 611, 612, 376 S.E.2d 545 (1989), this Court referred to counsel's motion to withdraw because of "his assessment that the appeal is frivolous." (Emphasis added). We held that "[counsel] may [withdraw] only after asserting as an advocate in his client's behalf all arguments ‘that might arguably support the appeal. ’ " Id. (emphasis added) (quoting Anders , 386 U.S. at 744, 87 S.Ct. at 1400 ); see also Rule 5A:20(i) (stating that the Anders procedure applies when "counsel for appellant finds the client's appeal to be without merit" (emphasis added)).⁵

The procedure set out in Anders , 386 U.S. at 744, 87 S.Ct. at 1400, reiterated in Brown , 238 Va. at 555-56, 385 S.E.2d 587, and Akbar , 7 Va. App. at 612, 376 S.E.2d 545, contemplates a situation in which counsel files an appeal asserting that the alleged errors are, in their entirety, "wholly frivolous." This precedent does not support permitting counsel to present both frivolous and nonfrivolous issues in the same brief and then seek to withdraw as to those frivolous issues to allow pro se briefing. "[A] court need not permit " ‘hybrid" representation.’ " Hammer v. Commonwealth , 74 Va. App. 225, 242, 867 S.E.2d 505 (2022) (quoting Muhammad v. Commonwealth , 269 Va. 451, 503, 619 S.E.2d 16 (2005) ).

Indeed, requiring appellate counsel to present only nonfrivolous assignments of error or conclude that the appeal is wholly frivolous is consistent with the purpose of the Anders procedure. The Anders procedure seeks to reconcile the tension between an attorney's obligation to preserve the client's right to an appeal and an attorney's duty "not [to] bring or defend a [frivolous] proceeding." Va. Rules of Pro. Conduct r. 3.1⁶ ; see also Anders , 386 U.S....