Waters v. Commonwealth

DOMINIQUE NYREE WATERS v. COMMONWEALTH OF VIRGINIA

Record No. 1092-17-3

COURT OF APPEALS OF VIRGINIA

JULY 3, 2018

UNPUBLISHED

Present: Judges Humphreys, Chafin and Senior Judge Clements

Argued at Lexington, Virginia

MEMORANDUM OPINION^* BY JUDGE JEAN HARRISON CLEMENTS

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE

Joseph W. Milam, Jr., Judge

M. Lee Smallwood, II, Deputy Public Defender, for appellant.

Christopher P. Schandevel, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Dominique Nyree Waters, appellant, was convicted following a jury trial of robbery and use of a firearm during the commission of a felony. On appeal, appellant contends that the trial court erred by 1) finding that he failed to perfect a timely appeal from the decision of the juvenile and domestic relations district court to transfer his case to the circuit court, 2) failing to "quash the indictments in this case when those indictments had been obtained prior to the entry of an order authorizing the Commonwealth to obtain indictments against" him, and 3) failing to "quash the indictments in this case when those indictments were sought from and returned by a grand jury whose members were not statutorily permitted to serve as grand jurors due to their prior service on a grand jury that had been discharged." Finding no error in the trial court's decision, we affirm appellant's convictions.

BACKGROUND

We recite only those facts necessary to resolve the issues presented on appeal. On February 6, 2017, the Danville Juvenile and Domestic Relations District Court (the JDR court) held a transfer hearing concerning the felony charges against appellant. After hearing the evidence and argument, the JDR court transferred appellant's case to the circuit court pursuant to Code § 16.1-269.1(A). The JDR court file was transmitted to the circuit court on February 7, 2017. On March 8, 2017, the parties appeared before the trial court on appellant's attempted appeal of the transfer. The trial court observed that the paperwork received from the JDR court did not include a notice of appeal of the transfer order. Appellant's counsel explained that "as is practice in the juvenile court," he "announced [appellant's] appeal of [the transfer] decision" in open court. After the JDR judge "acknowledged" the intent to appeal, counsel "considered the . . . matter to have been appealed." Although not made a part of the record, appellant produced, and the trial court viewed, a notice of appeal signed by appellant's counsel on March 7, 2017. The document had "a date of appeal of 2-6-2017."

The clerk of the JDR court testified that she prepared the notice of appeal on March 7, 2017. She confirmed that "the general practice" is for the clerk in the JDR courtroom to prepare the notice of appeal and that the defendant or defendant's counsel then signs it. She reasoned that, in this case, "[t]he clerk just failed to process the paperwork." Although it was dated February 6, 2017, the notice of appeal was not prepared, signed, or filed until March 7, 2017.

The trial court found that it lacked jurisdiction to hear the appeal because the notice of appeal was not timely filed. The trial court explained:

Section 16.1-269.4 states that if the juvenile court transfers the case pursuant to subsection A of 16.1-269.1, the juvenile may within ten days of the juvenile court's final decision file a notice of appeal to the appropriate circuit court. That was not done here. It may have certainly been the intention of the defendant. It may very well have been the understanding of the Commonwealth.

And it certainly sounds like that was the understanding of the [c]ourt . . . . In this case, the notice of appeal, by the testimony today, was prepared one month after the hearing, not within ten days..

The trial court further noted that the JDR court speaks through its orders. The trial court recognized that the JDR court could not make a nunc pro tunc finding or "create something or decide something as a clerical error and . . . create a document that was not created initially." The trial court subsequently found that pursuant to Code § 16.1-269.6, there was substantial compliance with Code § 16.1-269.1, and it directed the clerk to prepare an order allowing the Commonwealth to seek indictments.

ANALYSIS

I.

Appellant contends his oral notice was sufficient to perfect his appeal of the transfer order because the JDR court acknowledged his desire to appeal. He asserts that a written notice of appeal was prepared and that it was backdated to February 6, 2017, although he concedes that it was not prepared or signed until March 7, 2017.

Code § 16.1-269.4 states:

If the juvenile court transfers the case pursuant to subsection A of § 16.1-269.1, the juvenile may, within ten days after the juvenile court's final decision, file a notice of appeal of the decision to the appropriate circuit court. A copy of the notice shall be furnished at the same time to the attorney for the Commonwealth.

Rule 8:20, which governs appeals from the juvenile and domestic relations district courts, provides as follows: "All appeals shall be noted in writing. An appeal is noted only upon timely receipt in the clerk's office of the writing. An appeal may be noted by a party or by the attorney for such party."

Here, appellant did not comply with the requirement that a written notice of appeal had to be filed within ten days of the JDR court's decision. "It is fundamental that the appealing party has theburden of perfecting his appeal." Sharma v. Sharma, 46 Va. App. 584, 590, 620 S.E.2d 553, 556 (2005) (quoting Commonwealth v. Walker, 253 Va. 319, 322, 485 S.E.2d 134, 136 (1997)).

Appellant, acknowledging that Rule 8:20 "seems to suggest that the notice must be filed in writing by the juvenile or his counsel," argues that "[t]here is a conflict in the Rules" because Rule 3A:19 "indicates that the accused or his counsel shall advise the judge or clerk within ten days after conviction, of his intention to appeal." He asserts that under Rule 3A:19 it was permissible merely to orally advise the JDR court of his desire to appeal the transfer decision.

Appellant's reliance on Rule 3A:19 and its alleged conflict with Rule 8:20 is misplaced. Rule 3A:19 addresses only appeals from "convictions" and specifically provides that the Rules in Section 3A do not "govern . . . proceedings concerning a child in a juvenile and domestic relations district court . . . ." Appellant, a juvenile, did not attempt to appeal from a JDR court conviction order, and Rule 3A:19 did not govern his attempt to appeal the transfer decision.

Rule 8:20 specifically requires that appeals from the juvenile and domestic relations district courts be noted in writing, and Code § 16.1-269.4 requires appeals from JDR court transfer orders be filed within ten days of the order. Appellant concedes that no written notice of appeal was filed with the clerk within the prescribed time period. He asserts that "the form utilized in district courts for appeal . . . is entirely controlled by the clerk of those district courts and cannot be completed by counsel or anyone other than a clerk." However, as noted by the JDR court clerk, the notice, once prepared, is then signed by "[e]ither the attorney or the defendant." Appellant's counsel concedes that he did not sign the notice until March 7, 2017. In Virginia, "one who takes the shortcut of asking the clerk's employees to examine the record for him relies on the response at his peril." School Bd. v. Caudill Rowlett Scott, Inc., 237 Va. 550, 556, 379 S.E.2d 319, 322 (1989); see also Bendele v. Commonwealth, 29 Va. App. 395, 399, 512 S.E.2d 827, 829 (1999). Here, appellant failed to assure that the necessary form wascompleted and signed within the required time period. Accordingly, the trial court did not err in finding that appellant failed to perfect an appeal of the transfer order.

II.

At the conclusion of the March 8, 2017 hearing, the trial court advised the Commonwealth that it could seek indictments against appellant. The order memorializing the court's ruling was not entered until April 6, 2017. Nevertheless, the Commonwealth obtained indictments on March 14, 2017. Appellant argues that the trial court erred by failing to "quash the indictments in this case when those indictments had been obtained prior to the entry of an order authorizing the Commonwealth to obtain indictments against" him.

Code § 16.1-269.6(B), which creates a procedure for either the juvenile or the Commonwealth to appeal a transfer decision, requires the circuit court:

(i) if either the juvenile or the attorney for the Commonwealth has appealed the transfer decision, to examine all such papers, reports and orders and conduct a hearing to take further evidence on the issue of transfer, to determine if there has been substantial compliance with subsection A of § 16.1-269.1, but without redetermining whether the juvenile court had sufficient evidence to find probable cause; and (ii) enter an order either remanding the case to the juvenile court or advising the attorney for the Commonwealth that he may seek an indictment.

We have previously held that "[b]y its own terms, this provision only applies when either party appeals a transfer decision." Lampkins v. Commonwealth, 44 Va. App. 709, 718, 607 S.E.2d 722, 727 (2005) (emphasis omitted). As noted above, appellant failed to perfect his appeal of the transfer decision. Accordingly, the provision does not apply in this case.

In a June 26, 2009 opinion, the Attorney General of Virginia opined that "a circuit court is not required to enter an enabling order where the transfer decision of the juvenile court has not been appealed" and that "a Commonwealth's attorney may seek an indictment after the periodfor an appeal has expired, provided no appeal has been noted." 2009 Op. Va. Att'y Gen. 53 (Jun. 26, 2009).

"While an Opinion of the Attorney General is not binding on this Court, it is ...