Preview:

PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims, JJ.,
and Russell and Lacy, S.JJ.
DONALD JOSEPH CONLEY
OPINION BY
v.    Record No.  120139                                            SENIOR JUSTICE CHARLES S. RUSSELL
November  1,  2012
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
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.
1 In the present case, the Court of Appeals en banc
effectively reversed a panel's judgment by ordering that it be
"withdrawn."




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
2 Conley did not file a petition for habeas corpus as to his
felony conviction.
2




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.
3




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 is plain and unambiguous.    It applies to all cases
decided by the Court of Appeals en banc, without any distinction
between the Court's appellate or original jurisdiction.    The
panel's decision was a "judgment" within the terms of the
statute because it disposed of all issues in the case and
ordered the issuance of a writ of actual innocence.    See, e.g.,
McLane v. Vereen,  278 Va.  65,  72,  677 S.E.2d  294,  298  (2009)
(final judgment "disposes of the entire matter before the court,
giving all the relief contemplated  .  .  .                           .").    Pursuant to Code
§  17.1-402(E), that judgment could only have been withdrawn and
thus reversed by a majority of the judges sitting in the Court
en banc.    The proceedings of the Court en banc, therefore, had
no effect on the panel's decision.3
3 In addition to his assignment of error with respect to the
lack of an en banc majority, Conley also assigns error to the
Court of Appeals' failing, in consideration of the merits, to
find him guilty of a misdemeanor second DUI in lieu of a felony
third DUI conviction.    Because his first assignment of error is
dispositive, we do not reach the second.
4




Conclusion
For the reason stated, we will reverse and annul the
judgment of the Court of Appeals en banc and remand the case to
that Court with direction to vacate the stay and reinstate the
judgment of the panel.
Reversed and remanded.
5

Download 1120139.pdf

Virginia Law