Commonwealth v. Dubois

COMMONWEALTH OF VIRGINIA v. GUY DOUGLAS DUBOIS, JR.

Record No. 0944-15-4

COURT OF APPEALS OF VIRGINIA

NOVEMBER 10, 2015

UNPUBLISHED

Present: Judges Petty, Beales and Senior Judge Frank

Argued by teleconference

MEMORANDUM OPINION^* BY JUDGE WILLIAM G. PETTY

FROM THE CIRCUIT COURT OF STAFFORD COUNTY

Victoria A.B. Willis, Judge

Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General, on briefs), for appellant.

Ronald Hur, Senior Assistant Public Defender, for appellee.

Pursuant to Code § 19.2-398, the Commonwealth appeals the decision of the trial court granting Guy Douglas Dubois, Jr.'s motion to suppress evidence. On appeal, the Commonwealth argues that the trial court erred in finding that the encounter between Dubois and First Sergeant Grella was not consensual and Dubois's consent to a search of his person was not voluntary. For the following reasons, we vacate the order granting this appeal as improvidently granted and dismiss the petition for appeal for lack of jurisdiction to consider it.

I.

Because the parties are fully conversant with the record in this case and this memorandum opinion carries no precedential value, we recite only those facts and incidents of the proceedings as are necessary to the parties' understanding of the disposition of this appeal.¹

Dubois was arrested and indicted for knowingly and intentionally possessing a Schedule I or II controlled substance, in violation of Code § 18.2-250. Dubois filed a motion to suppress the evidence recovered in the search of his person and his car, alleging that it was obtained as the result of an illegal search and seizure. On May 18, 2015, the trial court held a hearing on the motion to suppress. On May 21, 2015, the court issued a letter opinion granting the motion to suppress. The Commonwealth filed a notice of appeal with the trial court on May 26, 2015. On May 29, 2015, the trial court entered an order granting Dubois's motion to suppress. On June 2, 2015, the Commonwealth filed a second notice of appeal with the trial court and mailed a copy to this Court.

The Commonwealth timely filed its petition for appeal to this Court. Dubois filed a brief in opposition to the petition, arguing that the petition should be dismissed because the Commonwealth's notices of appeal were fatally deficient. On July 28, 2015, this Court granted the Commonwealth's petition for appeal. In our grant order, we reserved decision on the adequacy of the notice of appeal and directed both parties to brief the issues of whether the Commonwealth properly noted its appeal and whether the appeal is properly before this Court.

II.

Thus, at the outset, we address appellee's challenge to this appeal on the grounds that both of the Commonwealth's notices of appeal were fatally defective because they failed tocomply with the requirements of Rule 5A:6 and Code § 19.2-400. Specifically, Dubois contends that the June 2 notice of appeal is deficient because it was not timely filed and because it was not signed by the attorney for the Commonwealth. And, Dubois argues, the May 26 notice of appeal is insufficient because it does not adequately identify the case being appealed and no copy was sent to this Court.

In order for a notice of appeal to confer active jurisdiction on this Court it must only be timely filed and identify the order being appealed. Roberson v. Commonwealth, 279 Va. 396, 407, 689 S.E.2d 706, 712-13 (2010). Although there are a number of rules and relevant statutes governing notices of appeal, we have said that:

"[N]ot every requirement of the rule prescribing when and how a notice of appeal is to be prepared and filed implicates the court's initial acquisition of jurisdiction. Thus, we have never required that the notice of appeal be precise, accurate, and correct in every detail before the appellate court can acquire jurisdiction over the case in which the notice is filed."

Evans v. Commonwealth, 61 Va. App. 339, 344-45, 735 S.E.2d 252, 254 (2012) (quoting Ghameshlouy v. Commonwealth, 279 Va. 379, 391, 689 S.E.2d 698, 704 (2010)). "[T]wo aspects of a notice of appeal are mandatory substantive requirements: a notice of appeal must be timely filed, and it must 'adequately identif[y] the case to be appealed.'" Id. at 345, 735 S.E.2d at 254-55 (second alteration in original) (quoting Ghameshlouy, 279 Va. at 407, 689 S.E.2d at 712-13). And "[a]ny defect in the notice of appeal that does not touch on its timeliness or the identity of the case to be appealed is procedural only." Roberson, 279 Va. at 407, 689 S.E.2d at 713. An error that is procedural only does not deprive this Court of active jurisdiction nor mandate dismissal of the appeal. Evans, 61 Va. App. at 345, 735 S.E.2d at 254-55. "As a general rule, insubstantial defects in a timely filed appeal 'should not be fatal where no genuine doubt exists about who is appealing, from what judgment, to which appellate court.'" Id. at 344,735 S.E.2d at 254 (quoting Christian v. Va. Dep't of Soc. Servs., 45 Va. App. 310, 315, 610 S.E.2d 870, 872 (2005)).

However, significant procedural requirements should not be ignored. "[A] violation of a non-jurisdictional, though mandatory requirement of the Rules governing the processing of appeals in this Court" can "constitute[] a waiver of [the appellant's] question presented [now assignment of error] and supporting argument." Smith v. Commonwealth, 56 Va. App. 351, 353-54, 693 S.E.2d 765, 766 (2010), aff'd, 281 Va. 464, 706 S.E.2d 889 (2011); see Johnson v. Commonwealth, 1 Va. App. 510, 513, 339 S.E.2d 919, 921 (1986).

We start our analysis with the notice of appeal filed on June 2, 2015 with the circuit court, a copy of which was sent to this Court pursuant to Rule 5A:6. Dubois does not challenge that the June 2 notice of appeal, on its face, adequately identifies the case being appealed. However, Dubois argues that the June 2 notice of appeal was not timely filed because it was filed more than seven days after the court's May 21 letter opinion granting the motion to suppress. On the other hand, the Commonwealth contends that the mandatory period for filing the notice of appeal runs from the trial court's entry of the order memorializing its May 21 ruling. We agree with the Commonwealth.

We begin with the distinction between the rendition of a judgment and the entry of an order by the court. "'The rendition of a judgment duly pronounced is the judicial act of the court, and the entry or recording of the instrument memorializing the judgment "does not constitute an integral part of, and should not be confused with, the judgment itself."'" Taylor v. Commonwealth, 58 Va. App. 435, 438 n.1, 710 S.E.2d 518, 520 n.1 (2011) (quoting Jefferson v. Commonwealth, 269 Va. 136, 139, 607 S.E.2d 107, 109 (2005)). "'A judgment is the determination by a court of the rights of the parties, as those rights presently exist, upon matters submitted to it in an action or proceeding. A written order or decree endorsed by the judge is butevidence of what the court has decided.'" Rollins v. Bazile, 205 Va. 613, 617, 139 S.E.2d 114, 117 (1964) (quoting Haskins v. Haskins, 185 Va. 1001, 1012, 41 S.E.2d 25, 31 (1947)). However, "[t]his point does not contradict the oft-repeated maxim that a court speaks only through its orders, a proposition which 'deals with evidence of judicial action, that is, a declaration of historical fact.'" Taylor, 58 Va. App. at 438 n.1, 710 S.E.2d at 520 n.1 (quoting Jefferson, 269 Va. at 139-40, 607 S.E.2d at 109-10).

In the present case, the letter opinion by the trial court constituted a valid judicial act of the court. "[T]he evidence of the written order entered [on May 29, 2015] (the court speaking through its order) shows substantively that the valid judicial act . . . was performed . . . ." Jefferson, 269 Va. at 140, 607 S.E.2d at 110.

While the rendition of judgment constituted the relevant judicial act, we conclude that it is the date of the entry of the order by the circuit court, not the circuit court's rendition of a judgment, that matters for purposes of timely filing a notice of appeal. Code § 19.2-400 governs the procedure for appeals to this Court by the Commonwealth. In relevant part, Code § 19.2-400 reads: "No appeal shall be allowed the Commonwealth pursuant to subsection A of § 19.2-398 unless within seven days after entry of the order of the circuit court from which the appeal is taken . . . the Commonwealth files a notice of appeal with the clerk of the trial court." (Emphasis added). And, pursuant to Rule 5A:6(a), "[a] notice of appeal filed after the court announces a decision or ruling — but before the entry of such judgment or order — is treated as filed on the date of and after the entry." Thus, both Code § 19.2-400 and Rule 5A:6(a) make clear that it is the date of the court's order recording the judgment of the court, not the date of the trial court's opinion or ruling, that is the start of the Commonwealth's seven-day period for filing the notice of appeal. Under Code § 19.2-400, the Commonwealth had seven days following the entry of the court's May 29 order in which to file a notice of appeal. The Commonwealth's June 2 noticeof appeal fell within this time period. Because the June 2 notice of appeal was timely filed and clearly identified the order being appealed, it was sufficient to confer jurisdiction on this Court. Roberson, 279 Va. at 407, 689 S.E.2d at 712-13.

While sufficient to confer jurisdiction, we nonetheless find that the June 2 notice of appeal was defective because the copy that was filed in the trial court was not signed by the attorney for the Commonwealth.² Code § 8.01-271.1 requires that "every pleading, written motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name . . . ." The Supreme Court applied this code section to criminal pleadings in Livingston v. Virginia State Bar, 286 Va. 1, 15, 744 S.E.2d 220, 227 (2013) (discussing whether an...