Chatman v. Commonwealth

• Decision Date: 26 March 2013
• Docket Number: Record No. 0858–11–2.
• Citation: 61 Va.App. 618,739 S.E.2d 245
• Parties: Roberto Tyrone CHATMAN v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

61 Va.App. 618

739 S.E.2d 245

Roberto Tyrone CHATMAN

v.COMMONWEALTH of Virginia.

Record No. 0858–11–2.

Court of Appeals of Virginia, Richmond.

March 26, 2013.

C. Randall Stone (Stone Law Firm, PLC, on brief), 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.

Rule 5A:12(c)(1) requires an appellant 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.” Appellant filed a timely petition for appeal that did not comply with this Rule. Nevertheless, he did file an amended petition for appeal, after the deadline for filing his petition for appeal had passed, that satisfied the requirements of Rule 5A:12(c)(1). We conclude that dismissal is not required based on appellant's initial failure to comply with Rule 5A:12(c)(1). On the merits of the questions presented, we hold that Chatman was properly convicted of abduction and malicious wounding and we thus affirm his convictions.

BACKGROUND

Chatman was angry at his wife because she had taken out a criminal complaint against him. As she tried to iron some clothes, he began yelling at her, telling her that she had “ruined his life.” App. at 31. He turned violent, breaking two ironing boards. The couple began to struggle over the iron. Appellant, who had boxed for eight years while in the military, struck her and “just kept hitting [her] and hitting [her].” She was crying and was in a great deal of pain. She testified that he sat on top of her and struck her with his fists, and “when he got tired of hitting me with his fist, he startedbeating me with the iron.” App. at 32. He then renewed the assault with his fist. She fell in and out of consciousness. The beating started on a Friday night, and she thought it ended on the morning of the following day.

The following day, she repeatedly asked him to call for help. Although she felt that she could move, she could not see anything. She also stated that she could not leave the house on her own. Both of her eyes were swollen shut. Appellant had taken off her clothes, so she was naked. He initially refused to call for help. He told her that “right now, I just want to stay here and hold you.” App. at 34. Mrs. Chatman said she “was scared because [she] didn't know what was going to happen because [she] didn't know if his rage and anger [were] going to come back and hurt [her] so [she] was scared.” App. at 37. Chatman later told the police that he disabled the phone lines.¹

Appellant eventually did dress his wife and call an ambulance. He told the dispatcher that he had “beat her up” and that she was hurt. App. at 64. Eventually, Mrs. Chatman heard police officers at the door and called out for help. The deputy who responded at the scene found her “in a zombie-like state.” App. at 52. She was “wobbly on her feet,” and her eyes were “swollen shut.” App. at 52. Police found “dried blood all on the carpet,” blood spatter on the wall, and noticed that the coffee table had been flipped. App. at 53. A metal ironing board was “tipped over and bent.” App. at 56.

The beating necessitated, among other things, stitches for Mrs. Chatman's lip and a skin graft for a burn on her arm. Some of her facial bones were fractured. At the time of trial, she continued to suffer from headaches due to the concussion she experienced during the attack. Her vision remains impaired.

Chatman later admitted that he had attacked his wife but stated that he loved her. At trial, he did not dispute that there had been a physical altercation, but claimed that he “blacked out” and could not remember much of what happened. App. at 83.

Chatman was convicted of aggravated malicious wounding, in violation of Code § 18.2–51.2(A), and abduction, in violation of Code § 18.2–47. ² He filed his petition for appeal with this Court, arguing that the trial court erred in various respects. This Court 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)?

A divided panel of this Court held that it was without active jurisdiction to consider Chatman's appeal, and consequently dismissed it. The Court subsequently determined on its own motion to rehear the appeal en banc, pursuant to Code § 17.1–402(D).³

ANALYSIS

I. This Court may, in its discretion, permit a litigant to file a corrected petition for appeal to remedy an “exact reference” defect under Rule 5A:12(c)(1), provided that a timely petition for appeal has been filed .

A. Procedural background

The trial court record in this case was received in the clerk's office of this Court on June 21, 2011. Rule 5A:12(a) provides 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.” Chatman's petition for appeal, therefore, was due by July 31, 2011. 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 that a motion for an extension of time for filing a petition pursuant to Rule 5A:12(a) is timely “if filed ... within 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. This Court granted that 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 petition for appeal. Chatman failed to include with the assignment of error any reference to the place in the record where the alleged error was raised in the trial court. Therefore, the petition for appeal did not comply with Rule 5A:12(c)(1), which 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.”

On September 6, 2011, the clerk's office of this Court notified Chatman of this and other deficiencies in his petition and directed him to submit a replacement petition within 10 days. Chatman submitted a replacement petition on September[61 Va.App. 625]16, 2011, 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. This second replacement complied with Rule 5A:12(c)(1).

Unquestionably, when the petition for appeal was filed, it did not comply with Rule 5A:12(c)(1). That Rule required, in conjunction with the assignments of error, that appellant note the exact place in the record where the alleged error was preserved in the trial court. Appellant did eventually correct this defect, albeit after the time for filing his petition for appeal had passed. The initial question before us is whether this Court may permit an appellant to file an amended petition for appeal, after the deadline for filing a petition for appeal has passed, that contains the required exact citation to the part of the record where the alleged error was raised in the trial court.

B. The plain language of Rule 5A:12(c)(1)

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 requirement to provide “[a]n exact reference to the pages of the transcript, written statement of facts, or record where the alleged error has been preserved” must be included “with” the assignment of error—the exact page reference is not the assignment of error. These two separate requirements serve different roles. 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 appellate court to grant review only for cases where the issue was preserved, or where the ends of justice exception applies. We decline to conflate these distinct components of the Rule.

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.”...