Commonwealth v. Spinola

COMMONWEALTH OF VIRGINIA v. THOMAS J. SPINOLA, S/K/A THOMAS P. SPINOLA

Record No. 0535-15-4

COURT OF APPEALS OF VIRGINIA

SEPTEMBER 8, 2015

UNPUBLISHED

Present: Judges Humphreys, Russell and AtLee

Argued by teleconference

MEMORANDUM OPINION^* BY JUDGE WESLEY G. RUSSELL, JR.

FROM THE CIRCUIT COURT OF STAFFORD COUNTY

Victoria A. B. Willis, Judge

Elizabeth C. Kiernan, Assistant Attorney General (Mark R. Herring, Attorney General, on briefs), for appellant.

Mark S. Gardner (Gardner & Haney, P.C., on brief), for appellee.

Pursuant to Code § 19.2-398, the Commonwealth appealed from the circuit court's March 26, 2015 order granting appellee's motion to suppress the evidence. Appellee moved to dismiss the appeal, arguing that the notice of filing transcript and the petition for appeal were untimely filed. For the reasons that follow, we agree with appellee and dismiss the Commonwealth's appeal.

BACKGROUND

Thomas J. Spinola, s/k/a Thomas P. Spinola ("appellee") was charged with possession with the intent to distribute methamphetamine in violation of Code § 18.2-248, conspiracy to violate the Drug Control Act in contravention of Code § 18.2-256, and transportation of a controlled substance into the Commonwealth in violation of Code § 18.2-248.01. The charges arose from the search of a vehicle that had been stopped for speeding and in which appellee hadbeen a passenger. In the course of the search, officers discovered the illicit substances giving rise to the charges.

Appellee moved to suppress the substances found as a result of the search of the vehicle.¹ The circuit court heard the motion to suppress on March 18, 2015, and, from the bench, announced it was granting the motion. After the circuit court's announcement, the Commonwealth stated its intention to appeal. The court reporter, at the request of the Commonwealth, prepared the original transcript of the suppression hearing. The court reporter then sent the transcript to the circuit court clerk's office for filing on March 23, 2015. The court reporter included a cover letter indicating that copies of the letter and transcript had been transmitted to counsel for the parties. The court reporter's letter indicated that the package included the transcript, which was "to be filed this day . . . in the above styled case . . . ." (Emphasis added). The original transcript was date-stamped and filed in the circuit court clerk's office on March 24, 2015. The Commonwealth acknowledged in its pleadings before us that it received a copy of the transcript from the court reporter on the same day, March 24, 2015.

On March 26, 2015, after both parties already had received copies of the transcript from the court reporter,² the circuit court entered its written order granting the motion to suppress the evidence. The Commonwealth filed its notice of appeal in the circuit court on March 30, 2015. On April 14, 2015, the Commonwealth filed both a copy of the suppression hearing transcript and a notice of filing transcript in the circuit court. There is no dispute that the copy of the transcript filed by the Commonwealth was a duplicate of the copy previously filed by the courtreporter. The Commonwealth mailed, by certified mail, its petition for appeal to this Court and to appellee on April 24, 2015.

On May 6, 2015, appellee filed in this Court a motion to dismiss the appeal, arguing that neither the notice of filing transcript nor the petition for appeal were timely filed. On May 11, 2015, the Commonwealth filed an opposition to the motion to dismiss. For the following reasons, we grant the motion and dismiss the Commonwealth's appeal.

ANALYSIS³

The motion to dismiss poses questions of statutory construction. When considering such questions, "our primary objective is 'to ascertain and give effect to legislative intent,' as expressed by the language used in the statute." Cuccinelli v. Rector & Visitors of the Univ. of Virginia, 283 Va. 420, 425, 722 S.E.2d 626, 629 (2012) (quoting Commonwealth v. Amerson, 281 Va. 414, 418, 706 S.E.2d 879, 882 (2011)) (further citation and internal quotation marks omitted). In doing so, we "give statutory language its plain meaning . . . ," Davenport v. Little-Bowser, 269 Va. 546, 555, 611 S.E.2d 366, 371 (2005) (citing Jackson v. Fidelity & Deposit Co., 269 Va. 303, 313, 608 S.E.2d 901, 904 (2005)), recognizing that we are to view the words of the statute in "'the context in which they are used,'" City of Virginia Beach v. Bd. of Supervisors, 246 Va. 233, 236, 435 S.E.2d 382, 384 (1993) (quoting Grant v. Commonwealth, 223 Va. 680, 684, 292 S.E.2d 348, 350 (1982)). Because the Commonwealth's statutory right to appeal is in derogation of the general prohibition against appeals by the Commonwealth, the statutory requirements "must be strictly construed against the state and limited in application to cases falling clearly within the language of the statute." Commonwealth v. Hawkins, 10 Va. App. 41, 44, 390 S.E.2d 3, 5 (1990) (citations omitted).

Code § 19.2-398(A)(2) grants the Commonwealth the right to appeal a circuit court's granting of a motion to suppress and exclusion of evidence that "was obtained in violation of the provisions of the Fourth . . . Amendment[] to the Constitution of the United States or Article I, Section . . . 10 . . . of the Constitution of Virginia prohibiting illegal searches and seizures . . . ."⁴

In addition to granting the Commonwealth the right to appeal an adverse ruling on a motion to suppress, the General Assembly specified by statute the manner in which the Commonwealth is required to perfect such an appeal. Code § 19.2-402(B) provides in pertinent part:

The provisions of this subsection apply only to pretrial appeals. The petition for a pretrial appeal shall be filed with the clerk of the Court of Appeals not more than 14 days after the notice of transcript or written statement of facts required by § 19.2-405 is filed or, if there are objections thereto, within 14 days after the judge signs the transcript or written statement of facts.

Thus, the due date for filing the petition for appeal is triggered by the filing of the notice of filing transcript in compliance with Code § 19.2-405, which provides:

The transcript or written statement of facts shall be filed with the clerk of the circuit court from which the appeal is being taken, no later than 25 days following entry of the order of the circuit court. Upon motion of the Commonwealth, the Court of Appeals may grant an extension of up to 45 days for filing the transcript or written statement of facts for good cause shown. If a transcript or written statement of facts is filed, the Commonwealth shall file with the clerk of the circuit court a notice, signed by the attorney for the Commonwealth, who is counsel for the appellant, identifying the transcript or written statement of facts and reciting its filing with the clerk. There shall be appended to the notice a certificate by the attorney for the Commonwealth that a copy of the notice has been mailed or delivered to opposing counsel. The notice of filing of the transcript or written statement of facts shall be filed within three days of the filing of the transcript or writtenstatement of facts or within 14 days of the order of the circuit court, whichever is later.

(Emphasis added).

Appellee contends that the Commonwealth's appeal must be dismissed because the hearing transcript that is the subject of the Commonwealth's appeal was filed on March 24, 2015, when the clerk of the circuit court accepted and date-stamped the transcript that had been provided by the court reporter for the explicitly stated purpose of filing. Appellee argues that the filing of the transcript on that date resulted in the notice of filing transcript being due on April 9, 2015, fourteen days after the order of the circuit court.⁵ Thus, according to appellee, the Commonwealth's notice of filing transcript, filed on April 14, 2015, and therefore, the subsequently filed petition for appeal, filed on April 24, 2015, were untimely.

The Commonwealth argues that the court reporter's transmission of the transcript to the circuit court clerk is of no moment because "the Commonwealth chose not to rely on a third party filing the transcript . . . ." The Commonwealth asserts that, pursuant to Code § 19.2-405, a transcript may be filed up to twenty-five days after a circuit court enters its order. Thus, according to the Commonwealth, the copy of the transcript and the simultaneously filed notice of filing transcript that the Commonwealth filed on April 14, 2015, and the subsequently filed petition for appeal were timely.

In resolving the motion, we first hold that the transcript was filed for the purposes of Code § 19.2-405 on March 24, 2015, when the clerk of the circuit court received anddate-stamped the copy transmitted by the court reporter.⁶ To hold otherwise would be to ignore the common understanding of "filed" in this context and our own precedent.

The transcript was provided to the clerk of the circuit court for the express purpose of being filed, and all parties were given notice that the transcript had been delivered to the clerk "to be filed this day . . . in the above styled case . . . ." (Emphasis added). The clerk accepted it and marked it filed. Furthermore, we previously have held that "'[a] document is considered filed when delivered to the clerk for filing.'" Waller v. Commonwealth, 27 Va. App. 71, 75, 497 S.E.2d 508, 510 (1998) (quoting Rhem v. State, 820 S.W.2d 946, 947 (Tex. Crim. App. 1991)). In short, there can be no serious question that the transcript was filed on March 24, 2015.⁷

By the express terms of the statute, once a transcript is filed, regardless of who files it, the deadline for the filing of the notice of filing transcript begins to run and will expire three days after the filing of the transcript or fourteen days after "the order of the circuit court, whichever is later." Code § 19.2-405. Accordingly, the notice of filing transcript...