Haywood v. Commonwealth

Benton, X,

dissenting.

The record reflects that petitioner’s counsel mailed the petition to this Court’s clerk’s office by “priority mail” on November 29, 1991. The United States Postal Service erroneously forwarded the petition for appeal to the United States Court of Appeals for the Fourth Circuit. As it customarily does when this Court’s mail is misdirected to its offices, the United States Court of Appeals stamped the envelope “NOT FOR UNITED STATES COURT OF APPEALS FOURTH CIRCUIT” and returned it to the postal service. The postal service then delivered the petition to this Court’s clerk’s office on December 3, one day past the date it was due.

For the precise reasons that I stated in Long v. Commonwealth, 7 Va. App. 503, 507-09, 375 S.E.2d 368, 369-71 (1988) (Benton, J., dissenting), I would grant an extension of one day, issue an appropriate sanction for counsel’s failure to comply with the rules, and proceed to review the petition for appeal.

This Court’s refusal to exercise its ability to extend the filing time so as to allow a merits review of this case only perpetuates the inefficiency and delay that embroils the criminal justice system. In order to secure a merits review of his conviction, this petitioner now must either seek reversal by an appeal to the Supreme Court or file a habeas corpus petition in the circuit court. If a habeas corpus petition is filed, the Commonwealth will file the predictable response that petitioner was impermissibly denied a right to petition for review. Undoubtedly, the circuit court will conclude (as has happened in countless other cases dismissed for similar reasons) that petitioner has been denied his right to petition for appeal. It will then order the Commonwealth to petition this Court “to allow petitioner to belatedly appeal the . . . conviction, or to retry the petitioner if the Commonwealth be so advised.” This Court routinely grants such petitions and eventually conducts a delayed merits review. This scenario, of course, assumes that a petitioner is informed or understands that his review has been terminated for procedural reasons. Significantly, at no point in this process is the derelict party, the attorney who neglected her obligation to her client, called upon to account for the neglect or otherwise sanctioned with a view toward eliminating negligent practice.

Id. at 508-09, 375 S.E.2d at 370-71.

Petitioner was convicted March 20, 1989. That his petition for appeal has not yet been considered by this Court is intolerable. I dissent.