Brooks v. Commonwealth

• Decision Date: 26 March 2013
• Docket Number: Record No. 2708–10–1.
• Parties: Donte Lavell BROOKS v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

61 Va.App. 576

739 S.E.2d 224

Donte Lavell BROOKS

v.COMMONWEALTH of Virginia.

Record No. 2708–10–1.

Court of Appeals of Virginia,

Richmond.

March 26, 2013.

From the Circuit Court of the City of Chesapeake, John W. Brown, Judge ¹.

Kenneth L. Singleton, for appellant.

Alice T. Armstrong, Assistant Attorney General II (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: FELTON, C.J., and ELDER, FRANK, HUMPHREYS, KELSEY, PETTY, BEALES, ALSTON, McCULLOUGH, HUFF and CHAFIN., JJ.

UPON REHEARING EN BANC

McCULLOUGH, Judge.

The question before us in this appeal is whether appellant, Donte Lavell Brooks, failed to comply with Rule 5A:12(c)(1), which requires him to include with each assignment of error “[a]n exact reference to the pages of the transcript, written statement of facts, or record where the alleged error has been preserved in the trial court.” (Emphasis added). We conclude that Brooks did not comply with the requirements of the Rule. We further conclude that although such defects do not mandate dismissal, dismissal is appropriate here given Brooks's repeated failure to correct the defect in spite of multiple opportunities to do so.

BACKGROUND

Brooks was convicted of possession of cocaine, in violation of Code § 18.2–250. He filed his petition for appeal with this Court, arguing that the trial court erred in various respects. This Court granted Brooks's petition for appeal and directed the parties to address the following additional question:

[W]hether the petition for appeal should be dismissed under Rule 5A:12 on the basis (1) that appellant's petition for appeal did not contain—on or before June 8, 2011, the deadline for filing appellant's petition for appeal in this Court—any reference to “the pages of the transcript, written statement of facts, or record where the alleged error has been preserved in the trial court” from which the appeal is taken, or (2) that appellant's June 27, 2011 replacement petition for appeal did not contain “[a]n exact reference to the pages of the transcript, written statement of facts, or record where the alleged error has been preserved in the trial court” from which the appeal is taken. SeeRule 5A:12(c)(1); Davis v. Commonwealth, 282 Va. 339, 717 S.E.2d 796 (2011).

A divided panel of this Court held that it was without active jurisdiction to consider Brooks's appeal, and consequently dismissed it. We subsequently determined on our own motion to rehear the appeal en banc, pursuant to Code § 17.1–402(D).² On rehearing en banc, we dismiss Brooks's appeal.

ANALYSIS

I. The purpose of Rule 5A:12(c)(1)

Rule 5A:12(c)(1) requires that “[a]n exact reference to the pages of the transcript, written statement of facts, or record where the alleged error has been preserved in the trial court ... shall be included with each assignment of error.” (Emphasis added). The purpose of this requirement is to efficiently put the appellate court on notice as to where the party satisfied Rule 5A:18 to spare the Court from having to comb the entire record to determine whether and where the alleged error was preserved. The exact reference requirement in Rule 5A:12(c)(1) was a part of the revisions to the Rules that became effective July 1, 2010.³

Under Rule 5A:18, “[n]o ruling of the trial court ... will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice.”

“The laudatory purpose behind Rule 5A:18 ... is to require that objections be promptly brought to the attention of the trial court with sufficient specificity that the alleged error can be dealt with and timely addressed and corrected when necessary. The rules promote orderly and efficient justice and are to be strictly enforced except where the error has resulted in manifest injustice.”

Redman v. Commonwealth, 25 Va.App. 215, 220, 487 S.E.2d 269, 272 (1997) (omission in original) (quoting Brown v. Commonwealth, 8 Va.App. 126, 131, 380 S.E.2d 8, 10 (1989)). Furthermore, Rule 5A:18 “places the parties on notice that they must give the trial court the first opportunity to rule on disputed evidentiary and procedural questions. The purpose of this rule is to allow correction of an error if possible during the trial, thereby avoiding the necessity of mistrials and reversals.” Gardner v. Commonwealth, 3 Va.App. 418, 423, 350 S.E.2d 229, 232 (1986). Compliance with the exact reference requirement of Rule 5A:12(c)(1) enables this Court to identify the argument of the appellant at the trial level and the ultimate ruling made in the court below, and helps this Court to avoid improvidently awarded appeals.

II. Appellant's designation of the near entirety of the transcript does not satisfy the exact reference requirement of Rule 5A:12(c)(1).

Brooks included two assignments of error in his replacement petition for appeal. For his first assignment of error, that “the trial court erred when it did not suppress the evidence obtained from the search of the vehicle,” Brooks cited to pages 3–39, the portion of the transcript containing the entire hearing on the motion to suppress, as his reference to where the alleged error was preserved below. Likewise, for his second assignment of error that “the trial court erred when it found the circumstantial evidence sufficient to convict [him] of possession of the cocaine,” Brooks cited to pages 39–67 for his second assignment of error. This constitutes the near entirety of the trial.⁴

As a threshold matter, we conclude that appellant's citations here do not constitute an “exact” reference “to the pages of the transcript, written statement of facts, or record where the alleged error has been preserved in the trial court.” Certainly, the broad reference encompasses his specific objections and the trial court's rulings. Also included, however, are many pages of irrelevant material, thus precluding the Court from efficiently locating where appellant preserved the issue raised on appeal. Such broad references, if accepted, would deprive Rule 5A:12(c)(1) of any utility. ⁵ Satisfying the Rule's requirement to provide an exact reference in the record where the alleged error was preserved is not an onerous burden and can be met by simply citing the page(s) of the record where the objection or motion below was made.

III. This Court is not required to dismiss petitions for appeal that do not comply with the exact reference requirement of Rule 5A:12(c)(1)

The next question is whether this failure mandates dismissal. We conclude that dismissal for failure to cite to the exact place in the record where the issue has been preserved is not required for several reasons. First and foremost, the plain text of the Rule does not require dismissal. Second, automatic dismissal would needlessly harm litigants and the timely, efficient adjudication of justice. Finally, avoiding automatic dismissal is most consistent with one of the stated goals of the committee constituted to revise the appellate rules, namely, to “mak[e] the rules more fair, efficient, and user friendly.” Supreme Court of Virginia, Appellate Rules Advisory Committee, Report of the Committee 3 (June 9, 2008).

The plain text of Rule 5A:12(c)(1) draws a clear distinction between “the assignment of error” and the separate but related requirement that an appellant point out where the alleged error was preserved in the trial court. The appellant must provide “[a]n exactreference to the pages of the transcript, written statement of facts, or record where the alleged error has been preserved” “with” the assignment of error—this exact reference is not the assignment of error. These two separate requirements serve different functions. The purpose of the assignment of error is to alert the appellate court and opposing counsel to the precise error allegedly committed below and to limit review to that issue. The requirement of providing an exact reference to where the issue was preserved helps the Court grant review only for cases where the issue was preserved, or where the ends of justice exception applies. We decline to conflate these two distinct requirements.

Moreover, Rule 5A:12(c)(1)(ii) does not state “[i]f the assignments of error are insufficient or otherwise fail to comply with the requirements of this Rule, or appellant fails to comply with the requirement to provide an exact reference to where the alleged error has been preserved, the petition for appeal shall be dismissed.” The specific language of the Rule calls for dismissal for insufficient or otherwise noncompliant assignments of error. In other words, the dismissal remedy triggered by the language “or otherwise fail to comply with the requirements of this Rule” applies only to “assignments of error.” For example, an assignment of error, in addition to being “insufficient,” i.e. too broad, could be unclear, inconsistent, or contain “extraneous argument.” As we note in Whitt v. Commonwealth, 61 Va.App. 637, 739 S.E.2d 254, 2013 WL 1195624 (2013) (this day decided) (en banc), such deficiencies, if not corrected or amenable to correction, will result in dismissal.

Dismissing a petition for appeal for any defect pursuant to Rule 5A:12(c)(1)(ii), no matter how inconsequential the defect, would create a number of problems. Foremost among these is the fact that the reflexive dismissal remedy would punish the client when the mistake, and a relatively minor one at that, was made by his attorney.⁶ The remedies available following dismissal, petitioning for a delayed appeal or for a writ of habeas corpus, are less than promising. First, most litigants will not avail themselves of either of these remedies. Second, the process is cumbersome for those appellants who choose to pursue one of these potential avenues of relief. The Court must first dismiss the claim. Then, the appellant must initiate a separate proceeding, either by petitioning for a...