PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims, JJ., 

and Russell and Lacy, S.JJ.

DONALD JOSEPH CONLEY

OPINION BY

v. Record No. 120139 SENIOR JUSTICE CHARLES S. RUSSELL

November 1, 2012

COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

This appeal presents the question whether an equally 

divided Court of Appeals, sitting en banc, may reverse a 

judgment previously entered by a panel of that Court.1 The 

question arises in the context of a petition for a writ of 

actual innocence brought within the original jurisdiction of the 

Court of Appeals.

Facts and Proceedings

In February 2004, Donald Joseph Conley was convicted in the 

General District Court of the City of Chesapeake of driving 

under the influence (DUI). He was convicted in the same court

of a second DUI offense in April of that year. In November of 

that year, he was convicted in the Circuit Court of the City of 

Chesapeake of a felony third offense, DUI after being twice 

convicted of the same offense within ten years. He was 

sentenced to five years' imprisonment, with three years 

suspended. His appeals were unsuccessful.

 

1 In the present case, the Court of Appeals en banc 

effectively reversed a panel's judgment by ordering that it be 

"withdrawn." 
2

In 2005, Conley filed in this Court a petition for a writ 

of habeas corpus with respect to his second (April 2004)

misdemeanor DUI conviction, one of the two predicate offenses 

underlying his felony conviction.2 He claimed that he had asked 

his attorney to appeal the April 2004 conviction to the circuit 

court but that his attorney had failed to do so. At the 

Commonwealth's request, this Court, in March 2006, granted him a 

belated appeal of the second DUI conviction. No further action 

was taken in that case until counsel was appointed to represent 

Conley in November 2009. In February 2010, the circuit court 

granted Conley's motion to dismiss the second DUI case for 

denial of Conley's right to a speedy trial.

In March 2010, Conley filed a petition in the Court of 

Appeals for a writ of actual innocence with respect to his 

felony conviction. That petition is the subject of this appeal. 

Conley contended that he was innocent of the felony because one 

of the requisite predicate misdemeanor convictions had been 

dismissed with prejudice because of a violation of his speedy 

trial rights.

The case was heard by a three-judge panel. On June 15,

2011, the panel, one judge dissenting, granted Conley's petition 

and remanded the case to the circuit court for resentencing on 

 

2 Conley did not file a petition for habeas corpus as to his 

felony conviction. 
3

the lesser-included offense of DUI, second conviction. The 

Commonwealth filed a petition for a rehearing en banc, which the 

Court granted, staying the panel decision.

On November 15, 2011, the Court of Appeals, with ten judges 

sitting en banc, heard arguments on the petition. On 

December 16, 2011, the Court entered an order stating: "Upon 

rehearing en banc, the petition for writ of actual innocence is 

dismissed without opinion by an equally-divided Court. 

Accordingly, the order previously entered by a panel of this 

Court on June 15, 2011 is withdrawn." The order identified the 

five judges voting to grant the writ and the five judges who had 

voted to refuse it. We awarded Conley an appeal.

Analysis

This appeal presents a pure question of law to which we 

apply a de novo standard of review. Courtney v. Commonwealth, 

281 Va. 363, 366, 706 S.E.2d 344, 345 (2011). In deciding 

petitions for writs of actual innocence, the Court of Appeals 

acts as a court of original jurisdiction. Haas v. Commonwealth, 

283 Va. 284, 292, 721 S.E.2d 479, 482 (2012). Therefore, there 

was no decision of another tribunal before the Court of Appeals 

for appellate review in the present case. Rather, the Court 

sitting en banc had before it for review only the decision of 

its own panel.
4

Code § 17.1-402(E) is dispositive of the question before 

us. It provides: 

The court may sit en banc with no fewer than 

eight judges. In all cases decided by the court 

en banc, the concurrence of at least a majority 

of the judges sitting shall be required to 

reverse a judgment, in whole or in part.

This language is plain and unambiguous. It applies to all cases 

decided by the Court of Appeals en banc, without any distinction 

between the Court's appellate or original jurisdiction. The 

panel's decision was a "judgment" within the terms of the 

statute because it disposed of all issues in the case and 

ordered the issuance of a writ of actual innocence. See, e.g., 

McLane v. Vereen, 278 Va. 65, 72, 677 S.E.2d 294, 298 (2009) 

(final judgment "disposes of the entire matter before the court, 

giving all the relief contemplated . . . ."). Pursuant to Code 

§ 17.1-402(E), that judgment could only have been withdrawn and 

thus reversed by a majority of the judges sitting in the Court 

en banc. The proceedings of the Court en banc, therefore, had 

no effect on the panel's decision.3

 

3 In addition to his assignment of error with respect to the 

lack of an en banc majority, Conley also assigns error to the 

Court of Appeals' failing, in consideration of the merits, to 

find him guilty of a misdemeanor second DUI in lieu of a felony 

third DUI conviction. Because his first assignment of error is 

dispositive, we do not reach the second.
5

Conclusion

For the reason stated, we will reverse and annul the 

judgment of the Court of Appeals en banc and remand the case to 

that Court with direction to vacate the stay and reinstate the 

judgment of the panel.

Reversed and remanded.