Chatman v. Commonwealth

In these three cases,1 we address whether the appellants failed to comply with the requirements of Rule 5A:12(c)(l) in their respective petitions for appeal, and if so, whether such failures require us to dismiss the appeals. We conclude that each appellant failed to comply with Rule 5A:12(c)(l). Moreover, in light of the Supreme Court’s recent published order in Davis v. Commonwealth, 282 Va. 339, 717 S.E.2d 796 (2011), [623] we also conclude that we consequently must dismiss the appeals for lack of jurisdiction. Roberto Tyrone Chatman, No. 0858-11-2 Roberto Tyrone Chatman appeals his convictions of aggravated malicious wounding, in violation of Code § 18.2-51.2(A), and abduction, in violation of Code § 18.2-47.2 Chatman argues that the trial court erred in various respects. We granted Chatman’s petition for appeal and directed the parties to address the following additional question: Where, as here, the only petition for appeal filed within the time period set out in Rule 5A: 12(a) does not contain an exact reference to the pages of the transcript, written statement of facts, or record where the alleged error was preserved in the trial court, as required by Rule 5A:12(c)(l), does this Court have active jurisdiction to consider the appeal in light of Davis v. Commonwealth, 282 Va. 339, 717 S.E.2d 796 (2011), and Rule 5A:12(c)(l)(ii)? Because we now conclude that we are without jurisdiction to consider Chatman’s appeal, we dismiss it. Rule 5A:12(a) states that “[w]hen an appeal to the Court of Appeals does not lie as a matter of right, a petition for appeal must be filed with the clerk of this Court not more than 40 days after the filing of the record with the Court of Appeals.” The trial court record in Chatman’s case was received in the clerk’s office of this Court on June 21, 2011. Thus, Chatman’s petition for appeal was originally due by July 31, 2011. However, Rule 5A:12(a) also provides that “[a]n extension of 30 days may be granted on motion in the discretion of this Court upon a showing of good cause sufficient to excuse the delay.” See Rule 5A:3(c)(2) (providing a motion for extension of time for filing a petition pursuant to Rule 5A: 12(a) is timely “if filed ... with the specified extension period”); see also Code § 17.1-408 (not specifying when a motion for extension for [624] filing a petition must be filed or granted). Chatman filed a motion for an extension of time on July 27, 2011, and this Court granted the motion on August 11, 2011, extending the deadline for the filing of Chatman’s petition to August 30, 2011. On August 29, 2011, Chatman filed his original petition for appeal. Rule 5A:12(c)(l) requires that “[a]n exact reference to the pages of the transcript, written statement of facts, or record where the alleged error has been preserved in the trial court ... shall be included with each assignment of error.” The assignments of error in Chatman’s original petition did not contain any such references. On September 6, 2011, the clerk’s office notified Chatman of this and other deficiencies in his petition and directed him to submit a replacement petition within 10 days. On September 16, 2011, Chatman submitted a replacement petition that again failed to contain page references to where he had preserved the alleged errors in the trial court. On September 20, 2011, this Court entered an order requiring Chatman to file a second replacement petition in compliance with Rule 5A:12(c)(l). Chatman then filed a second replacement petition. After our order directing Chatman to file a second replacement petition to correct the deficient assignments of error, the Supreme Court entered a published order in the case of Davis v. Commonwealth, 282 Va. 339, 717 S.E.2d 796 (2011).3 In Davis, the Supreme Court dismissed an appeal for failure to comply with Rule 5:17(c)(l)(ii). Rule 5:17 is the Supreme Court’s counterpart to this Court’s Rule 5A:12. Under Rule 5:17(c)(l)(ii), “When appeal is taken from a judgment of the Court of Appeals, only assignments of error relating to assignments of error presented in, and to actions taken by, the Court of Appeals may be included in the petition for appeal to [the Supreme] Court.” The assignment of error in Davis alleged error in the trial court rather than in this Court, thereby violating the rule’s directive. Under Rule 5:17, “An [625] assignment of error that does not address the findings or rulings in the ... tribunal from which an appeal is taken ... is not sufficient. If the assignments of error are insufficient, the petition for appeal shall be dismissed.” Rule 5:17(c)(l)(iii) (emphasis added). Accordingly, pursuant to the dictates of Rule 5:17, the Supreme Court dismissed the appeal in Davis, because the assignment of error “[did] not address any finding or ruling of the Court of Appeals.” Davis, 282 Va. at 340, 717 S.E.2d at 797. As the Supreme Court explained, “fb]y prescribing dismissal of the appeal, [Rule 5:17(c)(l)(iii) ] established] that the inclusion of sufficient assignments of error is a mandatory procedural requirement and that the failure to comply with this requirement deprives [the Supreme] Court of its active jurisdiction to consider the appeal.” Id. at 339, 717 S.E.2d at 796-97 (emphasis added) (citing Smith v. Commonwealth, 281 Va. 464, 467-68, 706 S.E.2d 889, 891-92 (2011); Jay v. Commonwealth, 275 Va. 510, 518-19, 659 S.E.2d 311, 315-16 (2008)). As we have stated above, Rule 5A:12(c)(l) requires that “[a]n exact reference to the pages of the transcript, written statement of facts, or record where the alleged error has been preserved in the trial court ... shall be included with each assignment of error.” With dismissal language mirroring that in Rule 5:17, Rule 5A:12 provides: “If the assignments of error are insufficient or otherwise fail to comply with the requirements of this Rule, the petition for appeal shall be dismissed.” Rule 5A:12(c)(l)(ii) (emphasis added). Because the Supreme Court has interpreted Rule 5:17’s language, “shall be dismissed,” as prescribing mandatory dismissal for lack of active jurisdiction, we are left with no alternative but to conclude that our counterpart Rule 5A:12’s identical language, “shall be dismissed,” also requires dismissal for lack of active jurisdiction.4 [626] Heretofore, it has often been this Court’s practice to permit amendments to non-conforming petitions for appeal after the filing deadline has passed. Indeed, the language of former Rule 5A:12(c) before the July 1, 2010 amendments contained no mention of dismissal for failure to comply with its requirements.5 However, with the amendment of Rule 5A: 12(c) to mandate dismissal of a petition “[i]f the assignments of error ... fail to comply with the requirements of this Rule,” Rule 5A:12(c)(l)(ii), coupled with the Supreme Court’s recent interpretation and application of such mandatory dismissal language in Davis, we acknowledge that our previous practice is no longer permissible. Hence, we acknowledge that we now must dismiss a petition for appeal containing assignments of error that fail to comply with the requirements of Rule 5A:12(c)(l). Here, the only petition Chatman timely filed under Rule 5A:12(a) was the initial petition filed on August 29, 2011.6 As [627] already noted, the assignments of error in this petition did not contain any references to where Chatman had preserved the alleged errors in the proceedings below. Thus, the assignments of error failed to comply with the requirements of Rule 5A:12(c)(l). Furthermore, because the initial petition was non-compliant, we cannot consider an amended petition filed beyond the deadline. Cf. Wellmore Coal Corp. v. Harman Mining Corp., 264 Va. 279, 283, 568 S.E.2d 671, 673 (2002) (per curiam) (holding that an amended notice of appeal filed beyond the jurisdictional 30-day period contained in Rule 5:9(a) was invalid where the original notice of appeal was defective). Therefore, as the Supreme Court has instructed us, Chatman’s failure to comply with the rule’s requirements “deprives this Court of its active jurisdiction to consider the appeal,” Davis, 282 Va. at 339, 717 S.E.2d at 796-97, and requires that we dismiss the appeal, see Rule 5A:12(c)(l)(ii).7 [628] Because Chatman failed to timely file a petition for appeal that complied with the requirements of Rule 5A:12(c)(l), we must vacate the order granting his petition and dismiss his appeal. Donte Lavell Brooks, No. 2708-10-1 Donte Lavell Brooks appeals his conviction of possession of cocaine, in violation of Code § 18.2-250. Brooks argues that the trial court erred in various respects. We granted Brooks’s petition for appeal and directed the parties to address the following additional question: [W]hether the petition for appeal should be dismissed under Rule 5A:12 on the basis (1) that appellant’s petition for appeal did not contain—on or before June 8, 2011, the deadline for filing appellant’s petition for appeal in this Court—any reference to “the pages of the transcript, written statement of facts, or record where the alleged error has been preserved in the trial court” from which the appeal is taken, or (2) that appellant’s June 27, 2011 replacement petition for appeal did not contain “[a]n exact reference to the pages of the transcript, written statement of facts, or record where the alleged error has been preserved in the trial court” from which the appeal is taken. See Rule 5A:12(c)(l); Davis v. Commonwealth, 282 Va. 339, 717 S.E.2d 796 (2011). We now conclude that we are without jurisdiction to consider Brooks’s appeal and must dismiss it on the second of these alternative grounds.8 [629] As we have already noted, Rule 5A:12(c)(l) requires that “[a]n exact reference to the pages of the transcript, written statement of facts, or record where the alleged error has been preserved in the trial court ... shall be included with each assignment of error.” Rule 5A:12(c)(l) (emphasis added). In Brooks’s replacement petition for appeal, he included two assignments of error. For his first assignment of error, that “the trial court erred when it did not suppress the evidence obtained from the search of the vehicle,” Brooks cited to the portion of the transcript containing the entire hearing on the motion to suppress as his reference to where the alleged error was preserved below. Likewise, Brooks cited the portion of the transcript containing the entire trial for his second assignment of error, that “the trial court erred when it found the circumstantial evidence sufficient to convict [him] of possession of the cocaine.” In order to ascertain how “exact” a petitioner’s reference needs to be to comply with Rule 5A:12(e)(l), we find it helpful to restate the reason behind requiring an “exact” reference in the first place.9 Under Rule 5A:18, “[n]o ruling of the trial court ... will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice.” “The laudatory purpose behind Rule 5A:18 ... is to require that objections be promptly brought to the attention of the trial court with sufficient specificity that the alleged error can be dealt with and timely addressed and corrected when necessary. The rules promote orderly and efficient justice and are to be strictly enforced except where the error has resulted in manifest injustice.” [630] Redman v. Commonwealth, 25 Va.App. 215, 220, 487 S.E.2d 269, 272 (1997) (omission in original) (quoting Brown v. Commonwealth, 8 Va.App. 126, 131, 380 S.E.2d 8, 10 (1989)). Furthermore, Rule 5A:18 “places the parties on notice that they must give the trial court the first opportunity to rule on disputed evidentiary and procedural questions. The purpose of this rule is to allow correction of an error if possible during the trial, thereby avoiding the necessity of mistrials and reversals.” Gardner v. Commonwealth, 3 Va.App. 418, 423, 350 S.E.2d 229, 232 (1986). The role of an appellate court is to review alleged errors by the court below, and the intent behind the requirement for an “exact reference to the pages of the transcript ... where the alleged error has been preserved in the trial court ... from which the appeal is taken,” Rule 5A:12(c)(l), is to efficiently put this Court on notice of where the party satisfied Rule 5A:18 without requiring that we engage in what would be akin to a scavenger hunt to find it. Furthermore, compliance with the rule enables this Court to quickly identify the argument of the petitioner at the trial level and the ultimate ruling made in the court below. Satisfying the requirement of Rule 5A:12(c)(l) to provide an exact reference in the record where the alleged error was preserved is not an onerous burden and can be met by simply citing the page(s) of the record where the objection or motion below was made and the grounds therefor stated. It is clear that Brooks did not do so in this case. By citing the entire transcript of the proceedings on the motion to suppress and the trial below, Brooks attempts to circumvent the obvious purpose behind the rule. While his broad reference necessarily encompassed his specific objections and the trial court’s rulings, it also included many pages of testimony that contained no part of any allegation by Brooks of potential error by the trial court or his supporting legal theory. Thus, instead of enabling this Court to readily and efficiently identify the points at which he stated his legal position to the trial court, Brooks would require us to search through the entire proceedings below to identify such points. Indeed, if such [631] broad references were sufficient, the rule would be superfluous. As we explained above in our discussion of Chatman’s appeal, the amended mandatory dismissal language of Rule 5A:12(e)(l), together with the Supreme Court’s recent directive in Davis, requires us to dismiss a petition for appeal that fails to comply with the requirements of Rule 5A:12(c)(l). Brooks’s replacement petition for appeal in this case failed to comply with a mandatory requirement of Rule 5A:12(c)(l). Thus, as the Supreme Court has directed, Brooks’s failure to comply with the rule’s requirements “deprives this Court of its active jurisdiction to consider the appeal,” Davis, 282 Va. at 889, 717 S.E.2d at 796-97, and requires that we dismiss the appeal, see Rule 5A:12(c)(l)(ii). As with Chatman’s appeal, because Brooks failed to file a petition for appeal that complied with the requirements of Rule 5A:12(c)(l), we must vacate the order granting his petition and dismiss his appeal. Steve Whitt, No. 0885-11-3 Steve Whitt appeals his two convictions for attempted capital murder of a law enforcement officer, in violation of Code § 18.2-31. Whitt’s single assignment of error reads as follows: “The circuit court judge committed error by not dismissing the convictions against the appellant based upon insufficient evidence as a matter of law.”10 The Commonwealth moved to dismiss Whitt’s petition for appeal for failure to include an adequate assignment of error. We granted the petition and directed the parties to address the following additional question: [632] Is an assignment of error stating “[t]he circuit court judge committed error by not dismissing the convictions against the appellant based upon insufficient evidence as a matter of law,” an insufficient assignment of error under Rule 5A:12(c)(l)(ii) and, if so, does this Court have active jurisdiction to consider the appeal in light of Davis v. Commonwealth, 282 Va. 339, 717 S.E.2d 796 (2011)? Because we now conclude that we are without jurisdiction to consider Whitt’s appeal, we dismiss it. The requirements for an acceptable assignment of error are not of recent vintage. It has long been established that “ ‘[t]he purpose of assignments of error is to point out the errors with reasonable certainty in order to direct [the] court and opposing counsel to the points on which appellant intends to ask a reversal of the judgment, and to limit discussion to these points.’” Yeatts v. Murray, 249 Va. 285, 290, 455 S.E.2d 18, 21 (1995) (quoting Harlow v. Commonwealth, 195 Va. 269, 271, 77 S.E.2d 851, 853 (1953)). Consequently, it is the duty of an appellant’s counsel “to ‘lay his finger on the error’ in his [assignments of error],” Carroll v. Commonwealth, 280 Va. 641, 649, 701 S.E.2d 414, 418 (2010) (quoting First Nat’l Bank of Richmond v. William R. Trigg Co., 106 Va. 327, 342, 56 S.E. 158, 163 (1907)), and not to invite an appellate court “to delve into the record and winnow the chaff from the wheat,” Loughran v. Kincheloe, 160 Va. 292, 298, 168 S.E. 362, 364 (1933). Simply alleging, as Whitt has done here in his assignment of error, that the evidence was insufficient to support his convictions as a matter of law fails to point out any particular error “with reasonable certainty.” Rather than laying his finger on the error he wishes us to address, Whitt’s counsel has essentially invited us “to delve into the record and winnow the chaff from the wheat.” An assignment of error that simply alleges insufficient evidence is broad enough to encompass numerous discrete and unrelated arguments based on the various elements of any given offense (e.g., lack of the requisite intent to commit the crime or misidentification of the perpetrator). It [633] would even permit an appellant to include an evidentiary argument. Rushing v. Commonwealth, 284 Va. 270, 277-78, 726 S.E.2d 333, 338 (2012) (holding that an argument regarding the admissibility of evidence may properly be made as the reason why the evidence is insufficient). But see John Crane, Inc. v. Hardick, 283 Va. 358, 376, 722 S.E.2d 610, 620 (2012) (recognizing that “whether evidence is admissible is a separate issue from whether that evidence is sufficient” and thus holding that an argument only attacking the sufficiency of the evidence does not adequately support an assignment of error challenging only the admissibility of evidence). Were we to grant a petition for appeal containing an assignment of error that only generally alleged insufficient evidence, an appellant, in his brief on the merits, could add completely new arguments not raised in his petition, as long as he had preserved such arguments below. Such maneuvers would require this Court to address arguments that it never intended to address when granting the petition. Cf. Hamilton Dev. Co. v. Broad Rock Club, Inc., 248 Va. 40, 43-44, 445 S.E.2d 140, 142-43 (1994) (refusing to consider an argument encompassed by the revised language of an assignment of error that the appellant had modified after his petition for appeal had been granted). Thus, Whitt’s assignment of error, which alleges only a general insufficiency of the evidence as a matter of law, fails to meet the long-established standard for assignments of error. Accordingly, his petition violated Rule 5A:12(c)(l)’s requirement that a petition “shall list, clearly and concisely and without extraneous argument, the specific errors in the rulings below upon which the party intends to rely.” Rule 5A:12(c)(l) (emphasis added); see Commonwealth Transp. Comm’r v. Target Corp., 274 Va. 341, 352-53, 650 S.E.2d 92, 98 (2007) (holding that an assignment of error stating, “The trial court erred in failing to find that the jury commissioners’ report is contrary to the evidence at trial,” violated Rule 5:17(c)). The Supreme Court has traditionally adjudged imprecise assignments of error to be in violation of the procedural [634] requirements for assignments of error. See, e.g., Harlow, 195 Va. at 272-73, 77 S.E.2d at 853-54 (collecting and discussing cases). What the Supreme Court has done recently in Davis is to clarify that insufficient assignments of error deprive an appellate court of its active jurisdiction over an appeal. As we have explained above in our discussion of Chatman’s appeal, the Supreme Court’s decision in Davis requires us to dismiss petitions for appeal that fail to comply with the requirements of Rule 5A:12(c)(l). Therefore, as with the other two appeals we have addressed in this order, because Whitt failed to timely file a petition for appeal that complied with the requirements of Rule 5A:12(e)(l), we must vacate the order granting his petition and dismiss his appeal. Footnotes [1] We consolidate these cases for purposes of decision only. [2] Chatman was also convicted of assault and battery of a family member, in violation of Code § 18.2-57.2, but he has not assigned error to anything pertinent to that conviction on appeal. [3] The Supreme Court denied Davis's petition for rehearing on January 20, 2012. [4] While we may at times refer to the procedural rules applicable to proceedings in this Court as "our Rules” or “the Rules of this Court,” we recognize the Supreme Court’s conclusion that the provisions of [626] Part 5A of the Rules of the Supreme Court are "precisely that—Rules of [the Supreme] Court.” LaCava v. Commonwealth, 283 Va. 465, 471, 722 S.E.2d 838, 840 (2012). Accordingly, we are bound by that Court’s interpretation of the Rules. See id. at 469-71, 722 S.E.2d at 840. [5] Prior to the 2010 amendments, Rule 5A: 12(c) simply required the petition for appeal to conform to the requirements for an appellant's opening brief as set forth in Rule 5A:20. Neither Rule 5A: 12(c) nor Rule 5:17(c) (nor Rule 5A:20, for that matter) prescribed dismissal for failure to conform to its requirements, except for the fact that Rule 5:17(c) prescribed dismissal for failure to include any assignments of error at all. However, in July 2010, the Rules were significantly amended and Rules 5:17 and 5A: 12 rewritten. The 2010 amendments were proposed by the Appellate Rules Advisory Committee established by then Chief Justice Hassell and chaired by Justice Lemons. One of the goals of the Committee was "to harmonize the rules in the Court of Appeals with the rules in the Supreme Court.” Kent Sinclair, Appellate Rules Revisions, The Va. State Bar Professional Guidelines, 1 (May 5, 2010), http://www.vsb.org/docs/SCV-appellate-rules-05-05-10.pdf. Accordingly, excepting a few minor differences not relevant here, Rule 5:17(c)(l) and Rule 5A:12(c)(l) now contain identical mandatory dismissal language, and we must interpret the language in Rule 5A: 12(c)(1) in the same way the Supreme Court has interpreted this language in Rule 5:17(c)(l). [6] Although Rule 5A: 12(a) provides for the granting of a thirty-day extension, this Court had already granted Chatman such an extension, [627] extending the filing deadline for his petition from July 31, 2011 to August 30, 2011. Thus, August 30, 2011 was the last day Chatman had on which to file a conforming petition before we lost active jurisdiction over his appeal. [7] We note that in Jay, the Supreme Court appeared to limit the remedy of dismissal to jurisdictional violations. 275 Va. at 517, 659 S.E.2d at 315 ("By dismissing rather than denying the appeals, the Court of Appeals rendered the requirements of Rule 5A:20(e) jurisdictional.” (emphasis in original)). Subsequently, in 2010, Rule 5:1A was added to the Rules of the Supreme Court, providing that "[the Supreme] Court may dismiss an appeal or impose such other penalty as it deems appropriate for non-compliance with these Rules.” Rule 5:lA(a) (emphasis added). The new rule also authorizes the Court, prior to dismissal, to allow a party in violation a chance to correct most defects. See id. Hence, this rule raises the question of whether the remedy of dismissal continues to be limited to jurisdictional violations. See McDowell v. Commonwealth, 282 Va. 341, 343, 718 S.E.2d 772, 774 (2011) (dismissing an appeal for appellant’s failure to properly preserve an issue in the trial court). However, in 2011, the Supreme Court reaffirmed its holding in Jay that "by dismissing the appeal rather than denying it, the Court of Appeals erroneously rendered [Rule 5A:20(e) ] jurisdictional.” Smith, 281 Va. at 468, 706 S.E.2d at 892. Moreover, the Court in Davis cited both Jay and Smith in support of its holding that the dismissal language of Rule 5:17(c)(l)(iii) implies that insufficient assignments of error "deprive[] [the] Court of its active jurisdiction to consider the appeal.” Davis, 282 Va. at 339, 717 S.E.2d at 796-97. In light of the Supreme Court's repeated affirmation of the idea [628] that dismissal implies lack of jurisdiction, we are obligated to adhere to this principle in our analysis. [8] For purposes of our analysis in Brooks’s appeal, we assume without deciding that his replacement petition for appeal is properly before us, as it was filed on the seventieth day after the record was received in the clerk's office of this Court. See Rule 5A:12(a) (providing that this Court may extend the deadline for filing a petition for appeal for an additional thirty days beyond the general forty-day limit). [9] We recognize that appellate courts must have some latitude in defining the term ''exact” in order to ensure that slightly overbroad or erroneous page references do not result in unwarranted dismissals. Regardless of how liberally one might construe the term, however, we find it difficult to imagine how it might include a reference to an entire hearing or trial transcript. [10] Whitt requested permission from this Court to file an amended petition for appeal with a modified assignment of error. However, he made this request on the seventy-first day after the record had been filed with this Court. Hence, his request was beyond the time period permitted for filing a petition for appeal. See Code § 17.1-408 (providing for a potential maximum of seventy days, if the Court grants an extension of time, for the filing of a petition for appeal); Rule 5A:12(a) (same). Thus, we consider only his original assignment of error contained in his petition for appeal that was timely filed.