Appeals court backs dismissal

Shawn Nicely

Shawn Nicely

A three-judge panel of the Virginia Court of Appeals has upheld Shenandoah County Circuit Judge Dennis L. Hupp’s dismissal of a case in which a Mount Jackson man was accused of fatally shooting a woman inside a house while he was target practicing several hundred feet away.

Shawn Jason Nicely had been charged with involuntary manslaughter and reckless handling of a firearm resulting in serious bodily injury. Authorities accused him of firing a 30.06 rifle from a spot at 37 Charlotte Lane, Mount Jackson, into a home at 259 Charlotte Lane. A round struck and killed Gina Shoemaker, 46, of Edinburg.

Hupp granted a motion to dismiss the case in late April on grounds that Commonwealth’s Attorney Amanda McDonald Wiseley had violated Nicely’s right to a speedy trial under state law. The shooting happened on Nov. 23, 2014.

The law requires prosecutors and judges to try an accused felon who is not in jail within nine months of indictment or, barring a waiver by the defendant, the case will be dismissed.

Wiseley filed a written argument blaming “numerous hearings on the defendant’s motions” for repeated delays that caused the trial to be scheduled beyond the nine-month limit. Wiseley also cited problems scheduling key witnesses for the prosecution as factors that led to the trial being postponed several times.

A three-judge panel from the Court of Appeals agreed in a seven-page decision with Hupp’s finding that defense attorney Robert L. Vaughn Jr. never agreed to relinquish Nicely’s right to a speedy trial during any of the hearings that involved scheduling the trial.

“If the Commonwealth does not try the accused within the period of time specified in the statute the burden is on the Commonwealth to explain and excuse the delay,” the Court of Appeals said.

The ruling also cited a decision to postpone the trial after a date had been set in October 2015.

The appellate judges added: “Neither the Commonwealth nor the trial court attempted to find a date later in October, November or December of 2015.”

Vaughn said Monday the appellate court’s decision clears Nicely unequivocally of any further prosecution linked to Shoemaker’s death.

“I was always of the view that we should appeal on that motion,” Vaughn said. “I think we had a very strong case that was corroborated by the Court of Appeals.”

Vaughn added that he was “very happy for Mr. Nicely” and that “justice has been done.”

Wiseley was out of the office and unavailable for comment.

Contact staff writer Joe Beck at 540-465-5137 ext. 142, or jbeck@nvdaily.com

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