                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Powell and Senior Judge Annunziata
Argued at Alexandria, Virginia


JAMES LUTHER BEVEL
                                                             MEMORANDUM OPINION ∗ BY
v.     Record No. 2373-09-4                                JUDGE ROSEMARIE ANNUNZIATA
                                                                SEPTEMBER 14, 2010
COMMONWEALTH OF VIRGINIA


                     FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
                                 Burke F. McCahill, Judge

                 Bonnie H. Hoffman, Deputy Public Defender, for appellant.

                 Virginia B. Theisen, Senior Assistant Attorney General (Kenneth T.
                 Cuccinelli, II, Attorney General, on brief), for appellee.


       The question of first impression to be decided on appeal is, when a defendant dies

pending direct appeal, whether a motion for abatement ab initio of a criminal conviction may be

denied upon a showing of good cause by the Commonwealth. For the reasons stated below, we

find that the trial court did not abuse its discretion in denying the motion. We affirm.

                                        I. BACKGROUND

       James Luther Bevel (appellant) was convicted by a jury of incest involving his daughter

in violation of Code § 18.2-366. The victim was a minor at the time of the offense. 1 The trial

court sentenced Bevel to fifteen years imprisonment, fined him $50,000, and imposed $2,740 in

court costs. After timely submitting his notice of appeal and filing the relevant transcripts to the

Court, but before submitting the petition for appeal required by Rule 5A:12, appellant died.


       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
           Appellant sexually abused his daughter from 1992-1994.
Following his death, appellant’s counsel filed a motion to dismiss the conviction in the trial

court. The trial court concluded it no longer had jurisdiction over the case, and denied the

motion. Counsel then filed with this Court a motion to abate the conviction ab initio. This Court

remanded the case to the trial court with directions to “hold a hearing and abate the prosecution

ab initio unless good cause is shown by the Commonwealth not to do so.” Bevel v.

Commonwealth, No. 2646-08-4 (Va. Ct. App. Aug. 26, 2008).

          At the hearing on remand, A.M., 2 appellant’s daughter and the victim of the crime,

presented testimony in opposition to the motion, as did her sister, C.O., who also claimed

appellant had sexually abused her.

          A.M. spoke of the relief and closure that appellant’s conviction brought as well as the

value she placed on the verdict’s confirmation of the wrongfulness of her father’s acts. She

stated,

                    to have this [conviction] thrown out like it never happened, it
                    undermines the effort. It undermines the effort to resolve the issue,
                    to bring the issue to society and forefront to discuss, to find a
                    solution. It . . . throws [the conviction] back like it never
                    happened. . . . I wish I could just abate my memories and abate the
                    whole thing, but the reality is it happened.

A.M. also related the importance of having appellant’s life accurately portrayed in history, an

outcome she feared abatement of his conviction would preclude. 3

          C.O. testified that to have a jury “affirm that these things did indeed happen and that it

wasn’t going to be tolerated,” was “incredibly validating” and “very powerful.” C.O. felt

abatement would “wipe[] away” her family’s efforts to seek justice.



          2
              We will use the initials of the sexual abuse victims in this opinion.
          3
          She also expressed concern about the effect abatement would have on future custody
hearings in another state involving her minor sister; that concern did not form part of the trial
court’s rationale for its decision.
                                               -2-
        At the conclusion of the evidence, the trial court, finding good cause to do so, denied

appellant’s motion to abate the conviction. In reaching its conclusion, the trial court declined to

accept appellant’s argument that it was inappropriate for the trial court to consider the victim’s

interests and those of the victim’s family in resolving the issue. The trial court also declined to

base its decision solely on the values inherent in the appellant’s right to pursue an appeal, a right

that death had curtailed.

        Acknowledging the interests of appellant’s family in abating proceedings that may have

resulted in an erroneous conviction and that may pose a financial burden on the appellant’s

estate, the trial court weighed against those interests a number of other factors, including the

impact on the victim were abatement ordered, and nature of the crime, which it found to be

particularly heinous because it involved the appellant’s unremorseful and repeated sexual abuse

of his own child. It rejected counsel’s argument that, since punishment was futile under the

circumstances, no purpose would be served by leaving the judgment of conviction intact except,

perhaps, to preserve the victim’s right to restitution.

        The trial court explained its perspective on the propriety of considering the impact on the

victim, noting Virginia’s strong public policy in support of the rights of victims articulated, in

part, by Code § 19.2-11.01. It also found the interests of the victim to be broader than an interest

in restitution. The trial court explained that, for the victim, the prosecution of the offense “was

not just a trial . . . [but] part of a long, . . . painful and emotional process that culminated in the

trial,” validating the victim’s story and affirming her belief that the appellant’s acts were wrong.

The trial court acknowledged,

                It did take . . . a great deal of courage for this young woman to
                come forward. She was under a lot of pressure from her other
                family and, . . . from supporters of Mr. Bevel and the outside world
                not to prosecute.



                                                  -3-
        The trial court also underscored the impact that abatement ab initio could have on society

and on society’s perceptions of its institutions. It referenced the respect to be accorded the

factual determinations of the jury, the “powerful symbol” that a guilty verdict represents for both

society and the victim, and the possible adverse effect on society’s “respect and confidence in

[its] institutions and . . . the rule of law” were the proceedings to be abated ab initio. The trial

court noted the “huge potential for sending the wrong message” about “what has really

transpired” were the motion for abatement to be granted.

        Finally, the trial court determined that the validity of a conviction is not to be measured

solely by the right to appellate review. The trial court weighed the right to appellate review

against what it described as the implied “fiction” underlying the appellant’s premise for

abatement ab initio that the appellant would have succeeded had the appeal been heard.

Buttressing its view that the right to appellate review should not, in itself, be determinative of the

issue, the trial court further reasoned that, upon conviction, the presumption of innocence no

longer applies and that the verdict is presumed to be regular and correct and is accorded finality

under Rule 1:1.

        The trial court, thus, found good cause to deny appellant’s motion for abatement ab

initio, and this appeal followed.

                                           II. ANALYSIS

        Appellant’s counsel claims the trial court abused its discretion in finding good cause to deny

the motion to abate appellant’s conviction ab initio. Specifically, counsel asserts: (1) death during

the pendency of an appeal necessitates abatement of the conviction ab initio; (2) if there is to be a

good cause exception to abating the conviction ab initio, the trial court misapplied the factors it

considered when it found good cause to deny the motion; (3) the trial court erred in considering

evidence regarding the potential impact abatement ab initio might have on the custody of

                                                  -4-
appellant’s minor child; and (4) the evidence was inappropriate and insufficient to prove there was

good cause to deny the motion. 4

       Abatement is “[t]he act of eliminating or nullifying” and “[t]he suspension or defeat of a

pending action for a reason unrelated to the merits of the claim.” Black’s Law Dictionary 3 (9th

ed. 2009). The abatement of a prosecution effectively encompasses dismissal of all stages of the

case, from indictment through the pending appeal.

       The trial court’s conclusion that good cause existed to deny the motion to abate is subject

to an abuse of discretion standard of review. See Stephens v. Commonwealth, 274 Va. 157, 162,

644 S.E.2d 276, 278 (2007) (a trial court’s denial of an application for a name change for lack of

good cause is subject to an abuse of discretion standard); Harris v. Commonwealth, 258 Va. 576,

583, 520 S.E.2d 825, 829 (1999) (pursuant to Code § 19.2-265.3, a trial court’s decision to grant

the Commonwealth’s motion for nolle prosequi based on a showing of good cause is a matter of

discretion, and is subject to an abuse of discretion standard on appeal).

       We first address the contention that death during the pendency of an appeal necessitates

abatement ab initio. This Court addresses issues of potential abatement on a case-by-case basis

and, in some circumstances, we have opted to dismiss cases as moot rather than abate the

convictions ab initio. See, e.g., Tolliver v. Commonwealth, No. 0471-94-3 (Va. Ct. App. Feb.


       4
          The opening brief poses the following issue for review: “Whether there should be a
‘good cause’ exception which would permit denying abatement ab initio of criminal convictions
in individual cases for [appellants] who die while their cases are pending direct appeal.” The
argument section of the brief, however, does not address whether there should be a good cause
exception and, instead, argues that abatement ab initio is the appropriate method to dispose of
criminal cases when the appellant dies before the appeal process is complete. Because the brief
fails to address whether there should be a good cause exception to abatement ab initio in his
brief, we deem this issue waived, and decline to address it on appeal. See Rule 5A:20(e)
(requiring appellants to brief the “principles of law, the argument and the authorities relating to
each question presented”). See also Wilson v. Commonwealth, 54 Va. App. 631, 638, 681
S.E.2d 74, 78 (2009) (“Pursuant to [Rule 5A:20], we have held that ‘[u]nsupported assertions of
error do not merit appellate consideration.’” (quoting Jones v. Commonwealth, 51 Va. App. 730,
734, 660 S.E.2d 343, 345 (2008))).
                                                 -5-
27, 1995). The Supreme Court of Virginia has done likewise. See, e.g., Barber v.

Commonwealth, Nos. 930409 & 930492 (Va. Nov. 9, 1993). Appellant cites no authority, and

we have found none, in support of the argument that abatement ab initio is required in the

circumstances under review.

        Appellant’s counsel next contends the trial court misapplied the factors it considered

when it found good cause to deny the motion. Noting the varied approaches taken and rationales

proffered by the courts that have addressed the issue of abatement ab initio, the trial court

identified the following factors as appropriate to consider in effecting the mandate of this Court:

1) the nature of the crime; 2) the appellant’s right to seek post-trial review; 3) the nature of the

appeal afforded; 4) the appellant’s obligation to pay fines, restitution, and costs; 5) the

anticipated costs to the state associated with allowing the appeal to go forward with a substituted

party; 6) the principle of finality reflected and implemented by Rule 1:1; 7) the impact on the

victim; 8) the impact on the appellant’s family; and 9) the presumption of correctness in which

the trial court’s conviction is clothed and the concomitant loss of the presumption of innocence.

The trial court also noted its concern that society’s interest in bringing criminals to justice and

the values reflected in that interest not be jeopardized. 5

        In determining the factors to consider, the trial court also reviewed the dispositions of

such motions by other courts that had addressed the question. See, e.g., Surland v. State,

895A.2d 1034 (Md. 2006); Alabama v. Wheat, 907 So.2d 461, 462 (Ala. 2005). The


        5
         The trial court was guided, in part, by its review of Timothy A. Razel: Note, Dying to
Get Away With It: How The Abatement Doctrine Thwarts Justice-And What Should Be Done
Instead, 75 Fordham L. Rev. 2193, 2224-26 (2007); Joseph Sauder, Comment, How a Criminal
Defendant’s Death Pending Direct Appeal Affects the Victim’s Right to Restitution Under the
Abatement Ab Initio Doctrine, 71 Temple L. Rev. 347 (1998); and John H. Derrick, Abatement
Effects of Accused’s Death Before Appellate Review of Federal Criminal Conviction, 80 A.L.R.
Fed. 446. Razel highlighted the fact that in the past fifteen years, eight states have moved away
from abating convictions ab initio, at least, in part, because of a growing concern over the
adverse effect abatement has upon the victims of the crimes.
                                                 -6-
dispositions were varied depending on the factors considered, and included ordering abatement

ab initio, denying such requests and leaving the conviction unabated, ordering abatement of the

proceedings with the exception of an order for restitution benefiting the victim, and ordering the

substitution of parties in order that the appeal go forward. 6 After reviewing the record, we

cannot conclude that the trial court abused its discretion in considering the factors listed above in

its determination that the Commonwealth established good cause to deny the motion for

abatement ab initio.

       We also conclude that, in weighing the evidence in light of the factors it determined

should be considered, the trial court did not abuse its discretion in finding that good cause

existed to deny the motion to abate appellant’s conviction ab initio. In evaluating the argument

for abatement resting on appellant’s right to appeal and his family’s interest in having a possibly

erroneous conviction nullified, the trial court considered the nature of the appeal under Virginia

law and the need to entertain what it characterized as the implied “fiction” of an erroneous

conviction. In light of the latter, it concluded that the correctness and finality with which a

judgment is clothed under Rule 1:1, the loss of the presumption of innocence upon conviction,

and the respect to be accorded to the jury’s fact finding and conclusions weighed in favor of

denying the motion to abate the proceedings ab initio. The trial court also considered and gave

weight to the heinous nature of the offense and the adverse impact that abatement of the

proceedings ab initio would have on the victim, A.M., who had reached closure and validation of

her story only after a “ long, . . . painful and emotional process,” to bring her father’s wrongful

conduct to light. Finally, it found granting the motion to abate the proceedings ab initio could




       6
          In Wheat, 907 So.2d at 462, the court simply noted in the record that the appeal was
filed by the defendant but not heard because of the defendant’s death.
                                               -7-
diminish society’s “confidence in [its] institutions” and its interest in bringing criminal offenders

to justice.

                                         III. CONCLUSION

        On this record, we find no abuse of discretion in the trial court’s identification of the

factors to be considered and the evidence it admitted in determining whether the Commonwealth

established good cause to deny the motion for abatement ab initio. We, further, find no abuse of

discretion in the trial court’s conclusion that the Commonwealth established good cause, and we

affirm the trial court’s ruling on the merits.

                                                                                      Affirmed.




                                                 -8-
