VIRGINIA:
In the Court of Appeals of Virginia on Tuesday the 12th day of August, 2008.
Darrell Andrew Copeland, Petitioner,
against Record No. 1547-08-1
Commonwealth of Virginia, Respondent.
Upon a Petition for a Writ of Actual Innocence
Before Judges Kelsey, Petty and Senior Judge Bumgardner
The Circuit Court for the City of Chesapeake convicted Darrell Andrew Copeland of possessing
a firearm after having been convicted of a felony, a violation of Code § 18.2-308.2(A). See Conviction
Order, Case No. CR07-949 (May 2, 2007); Sentencing Order, Case No. CR07-949 (August 7, 2007). At
the time of trial, the putative firearm was in the possession of the Virginia Department of Forensic
Science. After Copeland’s conviction became final, DFS issued a certificate of analysis which, both
Copeland and the Commonwealth agree, made factual findings that excluded the item tested from the
statutory definition of “firearm” under Code § 18.2-308.2(A). See Morris v. Commonwealth, 269 Va.
127, 131, 607 S.E.2d 110, 112 (2005) (defining “firearm” under Code § 18.2-308.2 to include only
weapons “designed, made, and intended to expel a projectile by means of an explosion”). 1
Based upon the after-discovered DFS certificate of analysis, Copeland filed a petition for actual
innocence under Code § 19.2-327.10, et seq. To succeed, Copeland must prove by clear and convincing
evidence that, among other things, the after-discovered information was “previously unknown or
unavailable to the petitioner or his trial attorney of record at the time the conviction became final in the
circuit court,” Code § 19.2-327.11(A)(iv), and that neither he nor his trial counsel could have discovered
1
See also Kingsbur v. Commonwealth, 267 Va. 348, 351, 593 S.E.2d 208, 209-10 (2004);
Armstrong v. Commonwealth, 263 Va. 573, 583-84, 562 S.E.2d 139, 145 (2002).
this information “by the exercise of diligence,” Code § 19.2-327.11(A)(vi). 2 After conducting his own
evaluation of the facts, the Attorney General concedes Copeland has met his burden of proof and
affirmatively joins in Copeland’s request for relief.
We have no obligation to accept concessions of error, see United States v. Hairston, 522 F.3d
336, 340 (4th Cir. 2008) (recognizing “the government’s concession of error is not binding on this
court”), and, to be sure, we would never do so if the issue were a pure question of law, Logan v.
Commonwealth, 47 Va. App. 168, 172, 622 S.E.2d 771, 773 (2005) (en banc). “Our fidelity to the
uniform application of law precludes us from accepting concessions of law made on appeal. Because
the law applies to all alike, it cannot be subordinated to the private opinions of litigants.” Id. 3 Such
hesitation is particularly appropriate here given the need to ensure that the writ of actual innocence does
not evolve into an omnibus substitute for the carefully crafted procedures of the habeas corpus writ,
Code § 8.01-654, et seq., or impinge upon the Governor’s exclusive power over executive clemency,
Code § 53.1-229, et seq.
Having independently examined the record presented to us, we conclude the unique
circumstances of this case make it prudent to accept the Attorney General’s concession without “further
development of the facts” under Code § 19.2-327.12. Accordingly, we grant the requested writ of actual
innocence and vacate Copeland’s conviction for possessing a firearm after having been convicted of a
2
See generally Carpitcher v. Commonwealth, 273 Va. 335, 641 S.E.2d 486 (2007); In re
Johnson, 47 Va. App. 503, 624 S.E.2d 696 (2006), aff’d, Johnson v. Commonwealth, 273 Va. 315, 641
S.E.2d 480 (2007).
3
We analogize the Attorney General’s position in this case to a confession of error sometimes
submitted on direct appellate review. In such cases, as here, the “public trust reposed in the law
enforcement officers of the Government requires that they be quick to confess error when, in their
opinion, a miscarriage of justice may result from their remaining silent.” Young v. United States, 315
U.S. 257, 258 (1942). Even so, “such a confession does not relieve this Court of the performance of the
judicial function. The considered judgment of the law enforcement officers that reversible error has been
committed is entitled to great weight, but our judicial obligations compel us to examine independently
the errors confessed.” Id. at 258-59; see also Gibson v. United States, 329 U.S. 338, 344 n.9 (1946).
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felony in violation of Code § 18.2-308.2(A). We further remand this matter to the circuit court with
instructions to enter an order of expungement pursuant to Code § 19.2-327.13. 4
Writ granted, conviction vacated,
and case remanded.
A Copy,
Teste:
original order signed by the Clerk of the
Court of Appeals of Virginia at the direction
of the Court
Clerk
4
We direct the Clerk to publish this order in the Reports of the Court of Appeals of Virginia.
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