Va. man imprisoned for 9 years over beer and sandwich theft can pursue malpractice suit, court says

By: - October 17, 2023 5:15 pm

The Virginia Court of Appeals building in downtown Richmond. (Ned Oliver/Virginia Mercury)

The Virginia Court of Appeals is allowing a legal malpractice suit to go forward in a case brought by a Rockingham County man who served almost nine years in prison for his involvement in the 2012 theft of sandwiches and two cases of beer from a grocery store in Harrisonburg. 

The ruling, handed down Tuesday, sends the case back to Rockingham Circuit Court for further arguments about whether Mark O’Hara Wright is entitled to damages from defense attorney Andrew Graves. 

In 2021, the Richmond-based U.S. 4th Circuit Court of Appeals ordered Wright’s early release, concluding that “had Wright’s trial counsel been adequately informed, there is a reasonable probability that the outcome of his trial would have been different.” That decision overturned an earlier determination by the Supreme Court of Virginia.

According to the federal court’s account of the theft, Wright, his brother Robert Wright and Robert Wright’s 15-year-old stepson on March 25, 2012, took sandwiches and two cases of beer from Martin’s Grocery in Harrisonburg and left without paying. Security guard Garrett Atkins then followed them to their minivan and took one of the cases of beer from Robert Wright’s hands.

“At that point, Robert’s stepson stepped out of the minivan — with Wright on the opposite side of the van, out of Atkins’s view — and ‘took a fighting stance,’ telling Atkins, ‘I’m going to f— you up,” the ruling continued. “Robert then grabbed the beer back from Atkins, and Wright, Robert, and Robert’s stepson left in the minivan, taking with them the sandwiches and beer.” 

Atkins testified at trial that he never spoke to Mark Wright on the day of the theft and that the “abnormal” events made him “uncomfortable.” 

Wright was charged with petit larceny, contributing to the delinquency of a minor and, most significantly, robbery because his brother physically took the case of beer from Atkins in the parking lot. The robbery charge carried a sentence of five years to life in prison. 

After evidence was presented during the trial, prosecutors instructed the jury that it could convict Wright on the robbery charge or the lesser offense of grand larceny from the person — a crime that carries a sentence of zero to 20 years’ imprisonment. 

State law allows a defendant to be convicted of a crime that they haven’t been charged with as long as the crime is a less serious offense than the original charge and there is evidence to support the lesser charge. Virginia courts have ruled that though robbery and grand larceny from the person are similar crimes that both involve stealing, they are not interchangeable. Robbery requires an element of violence or intimidation. Grand larceny from the person does not but requires prosecutors to prove the stolen goods were worth at least $5.

As the U.S. 4th Circuit Court of Appeals later noted, the grand larceny charge “is not a lesser included offense of robbery under Virginia law. Nor was there any doubt on that point at the time of Wright’s trial.” 

The jury subsequently acquitted Wright of robbery but found him guilty of the grand larceny charge and recommended a 10-year sentence, which a judge accepted. 

Altogether, Wright was sentenced to more than 22 years in prison. (Half of that sentence was on charges related to the arrest of him and his brother, when bear deterrent was deployed against a sheriff’s deputy. The Supreme Court of Virginia later found there was insufficient evidence to show that Mark Wright had even been in the room at the time the bear deterrent was used, and a Rockingham County judge ultimately dismissed the charges.)

In 2017, Wright petitioned the Supreme Court of Virginia to review his case, arguing his attorney, Graves, had failed to assist him effectively. The state high court turned down his petition. It concluded that because Graves had testified that he “would not have objected to the instruction whether he did or did not know” the relevant law since it gave the jury the option of convicting his client on a less serious offense, the attorney had been operating on “strategy coupled with a lack of knowledge.” 

The 4th Circuit rejected that conclusion. 

“Under the correct and clearly established standard, trial counsel’s performance fell below prevailing professional norms when he failed, without justification, to inform himself of state law critical to his client’s case,” the court wrote. 

Furthermore, the three-judge panel ruled that Graves’ lack of objection to the jury instruction likely had a significant impact on the outcome of the trial. 

“It also is highly likely that a jury instructed only on robbery would have acquitted Wright of that charge: The actual jury did acquit Wright of robbery, finding that the Commonwealth had failed to prove the elements of that crime beyond a reasonable doubt,” the court wrote. “And had the jury been instructed on petit larceny, it might or might not have convicted Wright of that crime – but either way, Wright would have served no more than one year for the offense, as opposed to his ten-year sentence on grand larceny from the person.”

Following his release, Wright sued Graves for legal malpractice, a case the Virginia Court of Appeals is now allowing to go forward. 

Much of the appeals court’s ruling Tuesday centers on state law requiring individuals who bring criminal malpractice claims against their attorney to show they were actually innocent of the crime. Virginia, the opinion by Judge Stuart A. Raphael notes, “is among the majority of jurisdictions that impose an actual-innocence requirement.” 

In this case, Wright has repeatedly “pleaded that he was factually innocent of the crime for which he was convicted: grand larceny from the person,” the appeals court wrote. 

In a separate concurring opinion, Judge Lisa Lorish wrote that the case raises the question of “whether his case merits an exception to the general rule that a criminal-malpractice plaintiff must prove actual innocence.”

Graves’ attorneys did not respond to a request for comment. 


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Sarah Vogelsong
Sarah Vogelsong

Sarah is Editor-in-Chief of the Mercury and previously its environment and energy reporter. She has worked for multiple Virginia and regional publications, including Chesapeake Bay Journal, The Progress-Index and The Caroline Progress. Her reporting has won awards from groups such as the Society of Environmental Journalists and Virginia Press Association, and she is an alumna of the Columbia Energy Journalism Initiative and Metcalf Institute Science Immersion Workshop for Journalists.