2016 Va. Cir. LEXIS 69
Chesapeake Cir. Ct.2016Background
- Phillip James Ostrander was indicted by a grand jury in December 2005 on solicitation to commit murder and attempted capital murder-for-hire; indictments signed by the grand jury foreman and listing a detective as witness.
- Ostrander pleaded guilty to solicitation, moved to dismiss the attempted capital murder-for-hire charge as barred by double jeopardy, then pleaded not guilty and was tried; jury convicted him of attempted capital murder-for-hire and fixed a 30-year term.
- Court accepted the guilty plea to solicitation, suspended a 10-year sentence on conditions, and imposed the jury’s 30-year sentence; convictions were affirmed on appeal and post-conviction federal habeas relief was denied.
- In 2016 Ostrander filed a Motion to Vacate Judgment arguing the convictions were void ab initio because the grand jury indictments were never properly presented in open court and recorded, claiming lack of subject-matter jurisdiction.
- The Commonwealth relied on Virginia precedent limiting defects in indictment recording to direct appeal (not collateral attack), and the court considered Hanson v. Smyth and subsequent cases holding indictment formalities are statutory and waivable.
- The court denied the Motion to Vacate, denied reconsideration and recusal, and admonished counsel for imprecise language in filings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to record grand-jury indictments in the court’s order book renders convictions void for lack of jurisdiction | Ostrander: jurisdictional defect — indictments were not presented in open court/recorded, so convictions are void ab initio | Court/Commonwealth: record defect is statutory, not jurisdictional; such defects must be raised on direct appeal and were waived | Court held: defect does not deprive subject-matter jurisdiction; collateral attack barred under Hanson and Va. Code § 19.2-227 |
| Whether a collateral attack (Motion to Vacate) is available to challenge indictment-recording defects | Ostrander: seeks collateral relief under Va. Code § 17.1-513 claiming void judgment | Commonwealth: collateral attack unavailable; remedy was direct appeal and defendant failed to timely appeal | Held: collateral attack denied; issues waived because not raised on direct appeal |
| Whether precedent in Cawood and Simmons requires vacatur where indictment was not recorded | Ostrander: relies on Cawood and Simmons that indictments must be recorded or indictment invalid | Commonwealth: Cawood limited by Hanson; those older rules apply to direct appeals only | Held: Cawood/Simmons limited; Hanson governs — failure to record does not nullify judgment in collateral attack |
| Whether judge should recuse based on timing of ruling and counsel’s criticisms | Ostrander: moved for recusal after ruling as untimely/biased | Court/Commonwealth: no legal basis shown; judicial duty to decide promptly | Held: recusal denied; motion for reconsideration denied |
Key Cases Cited
- Cawood v. Commonwealth, 4 Va. (2 Va. Cas.) 527 (1826) (early holding that indictment must be presented in open court and recorded)
- Simmons v. Commonwealth, 89 Va. 156 (1892) (reaffirmed rule that indictment presentation and recording are required for validity on direct appeal)
- Hanson v. Smyth, 183 Va. 384 (1944) (limited Cawood to direct appeals and held indictment-recording defects are statutory and not grounds for collateral attack)
- Cunningham v. Hayes, 204 Va. 851 (1964) (confirming no constitutional requirement that felonies be prosecuted only by indictment; requirement is statutory and waivable)
- Epps v. Commonwealth, 66 Va. App. 393 (2016) (Court of Appeals applied Hanson to hold indictment can be waived and is not jurisdictional)