Ghameshlouy v. Com.

689 S.E.2d 698

Eric Amir GHAMESHLOUY¹ v. COMMONWEALTH of Virginia.

Record No. 091120.

Supreme Court of Virginia.

February 25, 2010.

Justin W. Esworthy, Assistant Public Defender, for appellant.

Eugene Murphy, Senior Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.

Natalie Mann, Assistant City Attorney (Mark D. Stiles, City Attorney; Christopher S. Boynton, Deputy City Attorney, on brief), for the City of Virginia Beach.

Present: All the Justices.

OPINION BY Justice LAWRENCE L. KOONTZ, JR.

In this appeal, we consider whether the Court of Appeals correctly determined that an appeal of a conviction under a local ordinance should be dismissed because the defendant failed specifically to name the locality as a party to the appeal in his notice of appeal. The defendant acknowledges that there was a defect in the notice of appeal, but contends that the locality waived its objection to this defect because an attorney representing the locality had made an appearance and responded on the merits of the appeal in the Court of Appeals. With one judge dissenting, a panel of the Court determined that the deficiency in the notice of appeal deprived the Court of "jurisdiction" over the case and, thus, could not be waived by the subsequent appearance of the locality.

BACKGROUND

Because the Court of Appeals did not address the merits of the challenge to the conviction under the local ordinance, we are concerned here only with the procedural status of the appeal. Accordingly, we will confine our consideration to the procedural history of the case, addressing only those aspects of the merits necessary to place the proceedings in proper context.

On February 24, 2007, officers of the City of Virginia Beach Police Department responded to a report of a domestic altercation at a local motel. In the course of their investigation, the police entered a motel room occupied by Eric Amir Ghameshlouy and a female. When asked by police to identify himself, Ghameshlouy gave evasive and conflicting answers concerning both his name and age. The officers frisked Ghameshlouy and found two identification cards that showed his true name and date of birth. The officers advised Ghameshlouy that he was being arrested for giving false identity information to police, subsequently charging him by warrant with a violation of Virginia Beach City Code § 23-7.1 (hereinafter, "VBCC § 23-7.1"), which provides:

It shall be unlawful and a Class 1 misdemeanor for any person at a public place or place open to the public to refuse to identify himself by name and address at the request of a uniformed police officer or of a properly identified police officer not in uniform, or to provide false information in response to such a request, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety requires such identification.

In a search incident to this arrest, police discovered a bag containing a white powder, later identified as cocaine, on Ghameshlouy's person. Consequently, Ghameshlouy also was charged by a felony warrant with possession of cocaine in violation of Code § 18.2-250 and was subsequently indicted for that offense.

Ghameshlouy was tried on the VBCC § 23-7.1 violation in the City of Virginia Beach General District Court on April 6, 2007. He was convicted and sentenced to 180 days in jail with 170 days suspended on condition of 2 years probation. Ghameshlouy noted his appeal from this conviction to the circuit court.

On April 30, 2007, the Circuit Court of the City of Virginia Beach conducted a hearing on a motion to suppress the cocaine discovered on Ghameshlouy's person during the search incident to his arrest. In briefing his motion to suppress, Ghameshlouy contended that the officers' warrantless entry into the motel room was unlawful because they had no probable cause to believe that a crime was being committed in the room and lacked a sufficient basis for believing that they could enter the room under a "community caretaker" function, since there was no evidence that the female had been the victim of a domestic assault. Ghameshlouy further argued that even if the officer's entry into the motel room was lawful, his arrest under VBCC § 23-7.1 was improper because a motel room was not "a public place or place open to the public." The circuit court denied the motion to suppress.

On July 24, 2007, in a proceeding before the circuit court, Thomas M. Murphy, a Deputy Commonwealth's Attorney in the Office of the Commonwealth's Attorney for the City of Virginia Beach, was acknowledged by the court as "present for the Commonwealth." It is not disputed, however, that Murphy was also representing the City in prosecuting the appeal of the local ordinance violation. See Code § 15.2-1627(B). Murphy informed the court that a conditional plea agreement had been reached covering the possession of cocaine charge and other state charges arising from a separate, unrelated incident, as well as a probation violation. Although the agreement originally also covered the VBCC § 23-7.1 offense, this language had been struck from the agreement prior to its presentation to the court. The plea agreement was styled "Commonwealth of Virginia v. Eric Amir Ghameshlouy."

After accepting the plea to the state charges, the circuit court conducted a bench trial on the VBCC § 23-7.1 charge on stipulated evidence. The sole issue before the court was whether the motel room constituted "a public place or place open to the public" for purposes of applying the ordinance. Finding that a motel room was a public place because "[a]nyone can go there and rent a room if they would like," the circuit court found Ghameshlouy guilty of failing to identify himself to police and sentenced him to 12 months in jail with all time suspended. An order of conviction for violation of VBCC § 23-7.1, styled "CITY v. ERIC AMIR GHAMESHLOUY," was entered on July 30, 2007. A separate order of conviction on the state offenses, styled "COMMONWEALTH OF VIRGINIA v. ERIC AMIR GHAMESHLOUY" was entered on August 1, 2007.

On July 31, 2007, Ghameshlouy filed a notice of appeal in the record of the VBCC § 23-7.1 case, listing in its caption the circuit court docket number for that case as well as those assigned to each of the state law offenses for which he had entered guilty pleas. However, the caption named only the Commonwealth of Virginia as the prosecuting authority, and also named only the Commonwealth as the appellee in the Rule 5A:6(d) certificate at the end of the notice of appeal. In the body of the notice of appeal, in addition to identifying his conviction for possession of cocaine by conditional plea agreement after the denial of his motion to suppress, Ghameshlouy further indicated his intention to appeal the "final judgment of the Circuit Court of the City of Virginia Beach, rendered . . . on July 24, 2007" in which Ghameshlouy was convicted of "the charge of refusing to provide identification to a police officer, a violation of [the] Virginia Beach municipal code." (Emphasis added.) However, the notice of appeal did not reference the July 30, 2007 order of conviction concerning the VBCC § 23-7.1 offense.²

In his petition for appeal in the Court of Appeals, Ghameshlouy acknowledged that the conviction for failure to identify was under the local ordinance. Nonetheless, the Rule 5A:12(c) certificate at the conclusion of the petition states that "the appellee is the Commonwealth of Virginia." Murphy, the Deputy Commonwealth's Attorney, filed a brief in opposition to Ghameshlouy's petition for appeal. Murphy indicated in the certificate at the conclusion of the brief in opposition that he was appearing as "counsel for the Commonwealth of Virginia." He did not raise the issue of the City not having been joined as a party to the appeal with respect to the VBCC § 23-7.1 conviction, but instead addressed the merits of the appeal.

Although both the petition for appeal and the brief in opposition were styled in accord with the caption of the notice of appeal denoting the Commonwealth as the sole appellee, following a review by a judge of the Court, the Court of Appeals entered a per curiam order refusing the petition for appeal in which the "appellees" were denoted in the caption of the order as "Commonwealth of Virginia and City of Virginia Beach." The record does not disclose the reason this change in the style of the case was made.³

Ghameshlouy requested a review of his petition by a three-judge panel, which in an order dated June 10, 2008 refused the appeal as to the suppression issue related to the state cocaine conviction, but granted an appeal on the challenge to the VBCC § 23-7.1 conviction. This order also styled the appellees as "Commonwealth of Virginia and City of Virginia Beach" and was served on both the Virginia Beach Commonwealth's Attorney and the Office of the Attorney General.

On June 18, 2008, Ghameshlouy filed his opening brief in the Court of Appeals, reasserting his contention that a motel room is not "a public place or a place open to the public." Despite the modification of the style of the case by the Court of Appeals in its orders, in the caption of his brief and in the certificate at its end Ghameshlouy continued to identify the "Commonwealth of Virginia" as the appellee and further averred that service had been made upon the Assistant Attorney General representing the Commonwealth.⁴

On August 6, 2008, the Office of the Attorney General, on behalf of the Commonwealth, filed a motion in the Court of Appeals to amend the caption of the appeal in which it averred that "[t]he proper appellee is now the City of Virginia Beach and the Commonwealth's Attorney from that jurisdiction has agreed to become co-counsel in this matter." Noting that "upon an appeal to the Supreme Court the appellant could again challenge his [cocaine possession] conviction under the state statute," the Attorney General...