Punting: Artis v. Commonwealth

I am breaking down last month's cases from the Courts Appellate Virginian and I trip over Artis v. Commonwealth, JAN23, VaApp no. 1407-21-1.  There are two issues in the case. The first is about abatement and Judge Dominique A. Callins handles that one with a well reasoned and if anything too thorough explanation. Then she dealt with a second issue which boiled down to "if proof of a prior conviction makes a crime aggravated (carrying a greater punishment), does the proof have to be proven in front of the jury or can it simply be introduced to the judge at sentencing?"

In the fact pattern, Judge Callins states:

At sentencing before the trial judge, the Commonwealth introduced for the first time, without objection, evidence showing that Artis had a prior conviction[]. Over objection from defense counsel, the trial judge imposed an enhanced sentence.

Okay, if you practice criminal law in Virginia you know how such a prior conviction is proven at trial. The prosecution introduces a certified copy of the conviction. This proves the conviction. A prior conviction can also come to light as part of a pre-sentence report, although that would not have occurred in this case.

The appellant claimed that the introduction of the prior conviction had to be done during the trial on guilt or innocence. Judge Callins disagrees, stating that constitutional precedent does not require that. In a lengthy footnote (no. 3: worth the read), the Judge explains that this is a General Assembly decision (I agree) and stops just short of stating openly that they ought to get off their bums and make the decision.

Then Judge Callins punts. She talks about a case precedent requiring proof, pointing out the case doesn't say when (this is when she elucidates with footnote 3). Instead of deciding the question before her, the Judge states "it is clear that the predicate conviction upon which the trial court sought to impose the enhanced punishment was neither alleged nor proven."

The "alleged" language seems to be desultory as it wasn't a topic addressed. The not proven really has no basis in the decision either, because "evidence showing that Artis had a prior conviction" doesn't tell us what the evidence was at all. After reading this opinion, I have no idea what the Court held to be insufficient evidence. I realize this case deals with a statute now eliminated by the General Assembly, but proving a prior conviction is something done in any number of charges. It's important to know what is not sufficient to carry the day in the Court of Appeals.

Overall, I must say this is the first time I've found a case really interesting from one of the new wave of judges. The legal reasoning was solid and well supported. The factual reasoning may have been as well; I just can't tell from the facts as they are laid out in the opinion. I think it may be worthwhile to keep an eye out for Judge Callins' opinions.¹

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¹  If for no other reason than because she uses "proven" rather than the despised and ugly "proved." Heck, if she is so righteous with God that she also uses the Oxford comma I'm probably going to start pushing for her to go to the Supreme Court.