Brittle v. Com.

• Decision Date: 11 August 2009
• Docket Number: Record No. 0824-08-1.
• Citation: 680 S.E.2d 335,54 Va. App. 505
• Parties: Jonathan BRITTLE v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

680 S.E.2d 335

54 Va. App. 505

Jonathan BRITTLE v. COMMONWEALTH of Virginia.

Record No. 0824-08-1.

Court of Appeals of Virginia, Richmond.

August 11, 2009.

S. Jane Chittom, Appellate Defender (Office of the Appellate Defender, on briefs), for appellant.

John W. Blanton, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: HUMPHREYS, PETTY and ALSTON, JJ.

PETTY, Judge.

On November 8, 2007, Jonathan Brittle was convicted of petit larceny, third offense in violation of Code §§ 18.2-103 and 18.2-104. On appeal, Brittle argues that two of the three prior conviction orders admitted by the Commonwealth are insufficient to prove that he had been convicted of those offenses and, therefore, the trial court erred in convicting him of petit larceny, third offense. Brittle also argues that the trial court erred in using the two prior convictions in determining his sentence. Because Brittle's questions presented are procedurally defaulted, we affirm his conviction.

I. BACKGROUND

On appeal, we review the evidence in the "light most favorable" to the Commonwealth, the prevailing party below Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003), and we grant to that party all fair inferences flowing therefrom. Coleman v. Commonwealth, 52 Va. App. 19, 21, 660 S.E.2d 687, 688 (2008).

On August 24, 2007, Brittle was caught stealing two packs of steaks valued at $28.64 from the Farm Fresh Supermarket in Portsmouth, Virginia. Officer Hendrik of the Portsmouth Police Department, who arrested Brittle at the store, discovered that Brittle had been convicted of petit larceny on at least two prior occasions. Thus, Brittle was charged with a felony, petit larceny, third offense.

At trial, the Commonwealth admitted, without objection by the defense, three certified copies of conviction orders from the General District Court for the City of Chesapeake. One conviction occurred in 2005, and the other two occurred in 1997. The latest conviction order was dated May 13, 2005 and charged Brittle with petit larceny second offense. The warrant stated that "[t]he accused has been convicted one time previously of larceny offenses or offenses deemed or punishable as larceny." The trial judge checked the box indicating that Brittle pleaded guilty and was found guilty as charged of second offense petit larceny for stealing merchandise from K-Mart on April 7, 2005. He was sentenced to twelve months in jail with six months suspended and one year of probation.

The two 1997 conviction orders were deficient for several reasons. On the September 4, 1997 conviction order, the checkmarks indicating Brittle's plea and the trial court's finding are unclear because the photocopy is skewed and incomplete. Moreover, the portion of the document where the trial judge's signature would normally appear was not copied. The order, however, does purport to sentence Brittle to ninety days in jail with eighty days suspended and a fine of two hundred dollars for stealing two women's handbags from K-Mart on August 3, 1997. On the August 26, 1997 conviction order, neither the box for Brittle's plea nor the trial court's finding are checked. Despite these omissions, the trial court sentenced Brittle to thirty days in jail with twenty-four suspended and a two hundred and fifty dollar fine for stealing fishing reels from Wal-Mart on July 20, 1997.

After the Commonwealth presented its evidence, Brittle moved to strike the evidence, but made no argument regarding why the evidence was insufficient or what element of the offense the Commonwealth failed to prove. The trial court overruled his motion. Brittle did not offer any evidence on his behalf and renewed his motion to strike, again without making any argument as to why the evidence was insufficient. The trial court, again, disagreed and found Brittle guilty as charged and set a date for sentencing. Brittle never raised the legal deficiencies in the two 1997 conviction orders at the trial court and did not object to their inclusion in the pre-sentence report.

II. ANALYSIS

Brittle argues that the trial court erred in relying on the two 1997 prior conviction orders because they did not establish that he was convicted of larceny or larceny-related crimes.¹ Essentially, he argues that the evidence was, therefore, insufficient to support his conviction for third offense, petit larceny. When considering the sufficiency of the evidence, we will only reverse when the trial court's judgment was plainly wrong or without evidence to support it. Code § 8.01-680. Brittle concedes that he failed to preserve these issues for appeal by contemporaneously objecting at the trial level, but he asks us to disregard his failure and consider the issues under the ends of justice exception to Rule 5A:18.

We note at the outset that our analysis of the issue in this case is not whether the trial court erred in admitting the orders in the first instance. Nor is the issue whether the evidence was sufficient to prove that Brittle had twice been convicted of petit larceny. It is clear that neither an unsigned order from a court not of record, Mwangi v. Commonwealth, 277 Va. 393, 672 S.E.2d 888 (2009); Moreau v. Fuller, 276 Va 127, 661 S.E.2d 841 (2008), nor an order that does not state a finding of guilt, McBride v. Commonwealth, 24 Va.App. 30, 480 S.E.2d 126 (1997), are sufficient to prove a prior conviction. However, because Brittle failed to object to the admissibility of the orders, and because he failed to make a motion to strike the evidence for lack of proof of prior convictions,² the trial court never had the opportunity to address the issues. Thus, our analysis is quite different from that in Mwangi, Moreau, and McBride. Simply put, the issue before us is whether to apply the ends of justice exception to Rule 5A:18 and excuse Brittle's failure to object.

Rule 5A:18 is clear that "[n]o ruling of the trial court ... will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling...." Indeed, "[i]n order to preserve an issue for appeal, `an objection must be timely made and the grounds stated with specificity.'" McDuffie v. Commonwealth, 49 Va.App. 170, 177, 638 S.E.2d 139, 142 (2006) (quoting Marlowe v. Commonwealth, 2 Va.App. 619, 621, 347 S.E.2d 167, 168 (1986)). If a party fails to timely and specifically object, he waives his argument on appeal. Arrington v. Commonwealth, 53 Va.App. 635, 674 S.E.2d 554 (2009).

However, Rule 5A:18 permits us to overlook the appellant's failure to preserve the issue and consider the merits of his argument for the first time on appeal if the ends of justice so demand.³ Nonetheless, our Rule 5A:18 jurisprudence confirms that "[t]he `ends of justice' exception ... is `narrow and is to be used sparingly.'" Pearce v. Commonwealth, 53 Va.App. 113, 123, 669 S.E.2d 384, 390 (2008) (quoting Bazemore v. Commonwealth, 42 Va.App. 203, 219, 590 S.E.2d 602, 609 (2004) (en banc)). This high standard is essential to buttress the principle that "a litigant has the responsibility to afford a court the opportunity to consider and correct a perceived error before such error is brought to the appellate court for review." Williams v. Gloucester Sheriff's Dep't, 266 Va. 409, 411, 587 S.E.2d 546, 548 (2003) (citing Reid v. Baumgardner, 217 Va. 769, 773, 232 S.E.2d 778, 781 (1977)).

Our Supreme Court has limited the "`[a]pplication of the ends of justice exception [to cases where] the judgment of the trial court was error and application of the exception is necessary to avoid a grave injustice or the denial of essential rights.'" Rowe v. Commonwealth, 277 Va. 495, 503, 675 S.E.2d 161, 165 (2009) (quoting Charles v. Commonwealth, 270 Va. 14, 17, 613 S.E.2d 432, 433 (2005)). The language used by our Supreme Court indicates that there are two distinct requirements that Brittle must meet before we can apply the ends of justice exception: (1) that the trial court erred, and (2) that a grave or manifest injustice will occur or the appellant will be denied essential rights.

The distinction between the two requirements is inherently logical because, for example, if every trial court error also constitutes a grave or manifest injustice or denial of essential rights, then the rule requiring a contemporaneous objection or a motion to strike is swallowed by this exception. See Redman v. Commonwealth, 25 Va.App. 215, 221, 487 S.E.2d 269, 272 (1997). Indeed, if that were the case, every issue would be subject to appellate review regardless of whether the issue was properly preserved. Therefore, lest the rule become meaningless, waiver is a necessary consequence of trial counsel's failure to specifically and timely object. To hold otherwise "would undermine the trial court's ability to correct errors in the trial court and thereby frustrate the ends of justice, not prevent a miscarriage of justice." Id. Moreover, such an expansion of the manifest injustice requirement "would ... encourage trial counsel to stand mute ... thereby knowingly inviting the trial judge to commit error without having a sufficient opportunity to rule upon the issue." Id.

The burden of establishing a manifest injustice is a heavy one, and it rests with the appellant. We have previously held that the

appellant must demonstrate more than that the Commonwealth failed to prove an element of the offense.... In order to show that a miscarriage of justice has occurred, ... the appellant must demonstrate that he or she was convicted for conduct that was not a criminal offense or the record must affirmatively prove that an element of the offense did not occur.

Id. at 221-22, 487 S.E.2d at 273. "This requires a defendant to affirmatively show [that] ... that the error [was] clear, substantial and material." Bazemore v. Commonwealth, 42 Va.App. 203, 219, 590 S.E.2d 602, 610 (2004) (internal citation and quotation marks omitted)....