880 S.E.2d 9
Va. Ct. App.2022Background:
- Patrick Edward Cornell was convicted by a jury of aggravated sexual battery for touching the vagina of his girlfriend’s nine‑year‑old daughter (K.P.).
- K.P. testified she woke to find Cornell touching her under her underwear; she later reported the abuse after initially telling her mother, who did not believe her.
- At trial Cornell denied the conduct; the jury convicted and the court sentenced him to 10 years, with much suspended, and probation.
- At sentencing counsel sought a continuance, saying he received the presentence report late; the court denied the continuance and refused to remove an emotional‑injury enhancement on the guidelines.
- On appeal counsel raised five assignments of error, briefed three on the merits, and submitted two as frivolous under Anders v. California, moving to withdraw only as to those two issues.
Issues:
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Cornell) | Held |
|---|---|---|---|
| Whether counsel may file a partial (hybrid) Anders brief and withdraw only as to some issues | Partial Anders briefs are improper; Anders requires that counsel conclude the entire appeal is frivolous before seeking withdrawal | Counsel may identify some issues as frivolous under Anders while arguing others on the merits and withdraw as to the frivolous ones | Partial Anders briefs are not permitted; court declined to consider Anders‑submitted issues and denied withdrawal as to them |
| Sufficiency of the evidence (intent to sexually gratify/molest) | Evidence (victim testimony and reasonable inferences) suffices to prove intent to molest/arouse/gratify | There was insufficient proof that Cornell intended sexual gratification when touching K.P. | Evidence sufficient; jury could infer intent from testimony and reject defendant’s denials; conviction affirmed |
| Victim credibility and invocation of the ends‑of‑justice exception to preserve an unpreserved challenge | Credibility matters but was for the jury; no manifest injustice shown to excuse preservation failure | K.P.’s testimony was unworthy of belief (mother’s contradictory testimony and reputation for lying); courts should apply ends‑of‑justice exception | Ends‑of‑justice exception not applied; appellant failed to show manifest injustice and K.P.’s testimony was not inherently incredible |
| Denial of continuance at sentencing (prejudice from late receipt of presentence report) | Trial court acted within discretion; judge considered the issue and proceeded because witnesses were present; no prejudice shown | Denial was an abuse of discretion and prejudiced Cornell because counsel had insufficient time to prepare challenges to the report | No abuse of discretion and no prejudice shown; denial affirmed |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (establishes procedure when counsel finds an appeal wholly frivolous and seeks to withdraw)
- Brown v. Warden of Va. State Penitentiary, 238 Va. 551 (1989) (Virginia court’s articulation of Anders procedure for appeals)
- Akbar v. Commonwealth, 7 Va. App. 611 (1989) (counsel may withdraw only after asserting all arguments that might arguably support the appeal)
- Jones v. Barnes, 463 U.S. 745 (1983) (no constitutional duty for counsel to raise every nonfrivolous issue)
- Smith v. Robbins, 528 U.S. 259 (2000) (right to appointed appellate counsel does not include the right to counsel for frivolous appeals)