Chatman v. Commonwealth

Decision Date14 August 2012
Docket Number2708–10–1,Record Nos. 0858–11–2,0885–11–3.
Citation60 Va.App. 622,731 S.E.2d 24
PartiesRoberto Tyrone CHATMAN, Appellant, v. COMMONWEALTH of Virginia, Appellee. Donte Lavell Brooks, Appellant, v. Commonwealth of Virginia, Appellee. Steve Whitt, Appellant, v. Commonwealth of Virginia, Appellee.
CourtVirginia Court of Appeals

OPINION TEXT STARTS HEREFrom the Circuit Court of Dinwiddie County, Circuit Court Nos. CR10–609, CR10–616 and CR10–617.

From the Circuit Court of the City of Chesapeake, Circuit Court No. CR09–4095.

From the Circuit Court of Buchanan County, Circuit Court Nos. CR10–609, CR10–616 and CR10–617.

Before ELDER, HUMPHREYS and PETTY, JJ.

In these three cases,1 we address whether the appellants failed to comply with the requirements of Rule 5A:12(c)(1) in their respective petitions for appeal, and if so, whether such failures require us to dismiss the appeals. We conclude that each appellant failed to comply with Rule 5A:12(c)(1). Moreover, in light of the Supreme Court's recent published order in Davis v. Commonwealth, 282 Va. 339, 717 S.E.2d 796 (2011), we also conclude that we consequently must dismiss the appeals for lack of jurisdiction.

Roberto Tyrone Chatman, No. 0858–11–2

Roberto Tyrone Chatman appeals his convictions of aggravated malicious wounding, in violation of Code § 18.2–51.2(A), and abduction, in violation of Code § 18.2–47.2 Chatman argues that the trial court erred in various respects. We granted Chatman's petition for appeal and directed the parties to address the following additional question:

Where, as here, the only petition for appeal filed within the time period set out in Rule 5A:12(a) does not contain an exact reference to the pages of the transcript, written statement of facts, or record where the alleged error was preserved in the trial court, as required by Rule 5A:12(c)(1), does this Court have active jurisdiction to consider the appeal in light of Davis v. Commonwealth, 282 Va. 339, 717 S.E.2d 796 (2011), and Rule 5A:12(c)(1)(ii)?

Because we now conclude that we are without jurisdiction to consider Chatman's appeal, we dismiss it.

Rule 5A:12(a) states that [w]hen an appeal to the Court of Appeals does not lie as a matter of right, a petition for appeal must be filed with the clerk of this Court not more than 40 days after the filing of the record with the Court of Appeals.” The trial court record in Chatman's case was received in the clerk's office of this Court on June 21, 2011. Thus, Chatman's petition for appeal was originally due by July 31, 2011. However, Rule 5A:12(a) also provides that [a]n extension of 30 days may be granted on motion in the discretion of this Court upon a showing of good cause sufficient to excuse the delay.” See Rule 5A:3(c)(2) (providing a motion for extension of time for filing a petition pursuant to Rule 5A:12(a) is timely “if filed ... with the specified extension period”); see alsoCode § 17.1–408 (not specifying when a motion for extension for filing a petition must be filed or granted). Chatman filed a motion for an extension of time on July 27, 2011, and this Court granted the motion on August 11, 2011, extending the deadline for the filing of Chatman's petition to August 30, 2011. On August 29, 2011, Chatman filed his original petition for appeal.

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.” The assignments of error in Chatman's original petition did not contain any such references. On September 6, 2011, the clerk's office notified Chatman of this and other deficiencies in his petition and directed him to submit a replacement petition within 10 days. On September 16, 2011, Chatman submitted a replacement petition that again failed to contain page references to where he had preserved the alleged errors in the trial court. On September 20, 2011, this Court entered an order requiring Chatman to file a second replacement petition in compliance with Rule 5A:12(c)(1). Chatman then filed a second replacement petition.

After our order directing Chatman to file a second replacement petition to correct the deficient assignments of error, the Supreme Court entered a published order in the case of Davis v. Commonwealth, 282 Va. 339, 717 S.E.2d 796 (2011).3 In Davis, the Supreme Court dismissed an appeal for failure to comply with Rule 5:17(c)(1)(ii). Rule 5:17 is the Supreme Court's counterpart to this Court's Rule 5A:12. Under Rule 5:17(c)(1)(ii), “When appeal is taken from a judgment of the Court of Appeals, only assignments of error relating to assignments of error presented in, and to actions taken by, the Court of Appeals may be included in the petition for appeal to [the Supreme] Court.” The assignment of error in Davis alleged error in the trial court rather than in this Court, thereby violating the rule's directive. Under Rule 5:17, “An assignment of error that does not address the findings or rulings in the ... tribunal from which an appeal is taken ... is not sufficient. If the assignments of error are insufficient, the petition for appeal shall be dismissed. Rule 5:17(c)(1)(iii) (emphasis added).

Accordingly, pursuant to the dictates of Rule 5:17, the Supreme Court dismissed the appeal in Davis, because the assignment of error [did] not address any finding or ruling of the Court of Appeals.” Davis, 282 Va. at 340, 717 S.E.2d at 797. As the Supreme Court explained, [b]y prescribing dismissal of the appeal, [Rule 5:17(c)(1)(iii) ] establishe[s] that the inclusion of sufficient assignments of error is a mandatory procedural requirement and that the failure to comply with this requirement deprives [the Supreme] Court of its active jurisdiction to consider the appeal. Id. at 339, 717 S.E.2d at 796–97 (emphasis added) (citing Smith v. Commonwealth, 281 Va. 464, 467–68, 706 S.E.2d 889, 891–92 (2011); Jay v. Commonwealth, 275 Va. 510, 518–19, 659 S.E.2d 311, 315–16 (2008)).

As we have stated above, 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.” With dismissal language mirroring that in Rule 5:17, Rule 5A:12 provides: “If the assignments of error are insufficient or otherwise fail to comply with the requirements of this Rule, the petition for appeal shall be dismissed. Rule 5A:12(c)(1)(ii) (emphasis added). Because the Supreme Court has interpreted Rule 5:17's language, “shall be dismissed,” as prescribing mandatory dismissal for lack of active jurisdiction, we are left with no alternative but to conclude that our counterpart Rule 5A:12's identical language, “shall be dismissed,” also requires dismissal for lack of active jurisdiction.4

Heretofore, it has often been this Court's practice to permit amendments to non-conforming petitions for appeal after the filing deadline has passed. Indeed, the language of former Rule 5A:12(c) before the July 1, 2010 amendments contained no mention of dismissal for failure to comply with its requirements.5 However, with the amendment of Rule 5A:12(c) to mandate dismissal of a petition [i]f the assignments of error ... fail to comply with the requirements of this Rule,” Rule 5A:12(c)(1)(ii), coupled with the Supreme Court's recent interpretation and application of such mandatory dismissal language in Davis, we acknowledge that our previous practice is no longer permissible. Hence, we acknowledge that we now must dismiss a petition for appeal containing assignments of error that fail to comply with the requirements of Rule 5A:12(c)(1).

Here, the only petition Chatman timely filed under Rule 5A:12(a) was the initial petition filed on August 29, 2011.6 As already noted, the assignments of error in this petition did not contain any references to where Chatman had preserved the alleged errors in the proceedings below. Thus, the assignments of error failed to comply with the requirements of Rule 5A:12(c)(1). Furthermore, because the initial petition was non-compliant, we cannot consider an amended petition filed beyond the deadline. Cf. Wellmore Coal Corp. v. Harman Mining Corp., 264 Va. 279, 283, 568 S.E.2d 671, 673 (2002) (per curiam) (holding that an amended notice of appeal filed beyond the jurisdictional 30–day period contained in Rule 5:9(a) was invalid where the original notice of appeal was defective). Therefore, as the Supreme Court has instructed us, Chatman's failure to comply with the rule's requirements “deprives this Court of its active jurisdiction to consider the appeal,” Davis, 282 Va. at 339, 717 S.E.2d at 796–97, and requires that we dismiss the appeal, see Rule 5A:12(c)(1)(ii).7

Because Chatman failed to timely file a petition for appeal that complied with the requirements of Rule 5A:12(c)(1), we must vacate the order granting his petition and dismiss his appeal.

Donte Lavell Brooks, No. 2708–10–1

Donte Lavell Brooks appeals his conviction of possession of cocaine, in violation of Code § 18.2–250. Brooks argues that the trial court erred in various respects. We 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...

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3 cases
  • Whitt v. Commonwealth
    • United States
    • Virginia Court of Appeals
    • March 26, 2013
    ...Court held that it was without active jurisdiction to consider Whitt's appeal, and consequently dismissed it. Chatman v. Commonwealth, 60 Va.App. 622, 731 S.E.2d 24 (2012). The Court subsequently decided on its own motion to rehear the appeal en banc, pursuant to Code § 17.1–402(D). The req......
  • Coleman v. Commonwealth
    • United States
    • Virginia Court of Appeals
    • August 14, 2012
  • Chatman v. Commonwealth
    • United States
    • Virginia Court of Appeals
    • August 29, 2012
    ...published in the advance sheet at this citation, 731 S.E.2d 627, was withdrawn from the bound volume because it is already published at 731 S.E.2d 24 and will be reheard en banc by the ...

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