Ellis v. Commonwealth

• Decision Date: 19 July 2022
• Docket Number: Record No. 0818-21-1
• Parties: Samuel ELLIS, Jr. v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

75 Va.App. 162

875 S.E.2d 91

Samuel ELLIS, Jr.

v.COMMONWEALTH of Virginia

Record No. 0818-21-1

Court of Appeals of Virginia, Norfolk.

JULY 19, 2022

Daniel B. Winegard, Assistant Public Defender, for appellant.

Tanner M. Russo, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges Beales, AtLee and Chaney

OPINION BY JUDGE RICHARD Y. ATLEE, JR.

Appellant Samuel Ellis, Jr. appeals his conviction for driving while his license was suspended due to no insurance, in violation of Code § 46.2-302. On appeal, he argues that his conviction should be vacated because the original charging document, a Virginia Uniform Summons, "was void and could not be amended." For the following reasons, we disagree and affirm his conviction.

I. BACKGROUND

"In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial." Green v. Commonwealth , 72 Va. App. 193, 197 n.1, 843 S.E.2d 389 (2020) (quoting Gerald v. Commonwealth , 295 Va. 469, 472, 813 S.E.2d 722 (2018) ).

On November 1, 2019, a law enforcement officer issued Ellis a Virginia Uniform Summons, which charged Ellis with "Driving Suspended DUI Related" in violation of "[ Virginia Code §] 18.2-272 ([Newport News Ordinance §] 26-8)." On the summons, the officer checked the "city" box, indicating Ellis was charged with a city offense.

On February 27, 2020, the general district court convicted Ellis of driving on a suspended license, DUI related. The general district court imposed a $500 fine, with $250 suspended, and it sentenced him to 365 days in jail, with 345 days suspended for a period of one year. As is customary, the general district court's conviction order was written on the left and bottom portions of the summons.

Ellis appealed his conviction to the circuit court. On July 7, 2021, Ellis entered into a written plea agreement. The plea agreement stated that Ellis was charged with "one count of Driving under Suspension: Failure to Maintain Insurance, a Misdemeanor, in violation of § 46.2-302 of the Code of Virginia." Under the agreement, Ellis pleaded guilty to the charge, and the Commonwealth agreed that the proper disposition was 180 days of confinement with all 180 days suspended for one year, conditioned on Ellis's good behavior and payment of court costs.

That same day, the circuit court issued an order accepting and giving effect to the plea agreement. The circuit court's order reflected that Ellis had initially been charged with driving on a suspended license, DUI related, and that he was pleading "[g]uilty to [an a]mended [c]harge" under Code § 46.2-302, for driving on a suspended license, insurance related. The circuit court accepted the plea agreement and imposed the sentence agreed to by the parties.

On August 4, 2021, Ellis filed a motion to vacate his conviction. He argued that the summons was void ab initio because Newport News Ordinance § 26-8 does not incorporate Title 18.2 of the Virginia Code, meaning that the summons failed to state an offense. He also argued that his conviction in the circuit court for violating Code § 46.2-302 was void ab initio because the circuit court was without power to amend a void charging document. The circuit court denied his motion, and this appeal followed.

II. ANALYSIS

A. A summons cannot be void ab initio because it is not an act of a court.

Ellis argues that his conviction is void ab initio because it is based on a summons that is itself void ab initio. Ellis's argument makes at least one crucial mistake—the summons is not an act of the court and thus cannot be void ab initio.

The Constitution of Virginia sets out the general powers of the judiciary, and the Constitution grants power to the General Assembly, subject to certain limitations, to determine the jurisdiction of the courts of the Commonwealth. Kelley v. Stamos , 285 Va. 68, 75, 737 S.E.2d 218 (2013). The term void ab initio applies when a court acts outside of such jurisdiction or authority. Id. Thus, a court's action is void ab initio if

entered by a court in the absence of jurisdiction of the subject matter or over the parties, if the character of the order is such that the court had no power to render it, or if the mode of procedure used by the court was one that the court "could not lawfully adopt."

Id. (quoting Singh v. Mooney , 261 Va. 48, 51-52, 541 S.E.2d 549 (2001) ). This applies to any act of a court, including orders, judgments, and sentences. See, e.g. , Amin v. Cnty. of Henrico , 63 Va. App. 203, 210, 755 S.E.2d 482 (2014) (holding that a conviction order was void ab initio because it was based on "an offense that did not exist"); Rawls v. Commonwealth , 278 Va. 213, 221, 683 S.E.2d 544 (2009) (holding that a sentence in excess of statutory limits was void ab initio because it was outside the court's power); Collins v. Shepherd , 274 Va. 390, 402-03, 649 S.E.2d 672 (2007) (holding that a dismissal order was void ab initio because the circuit court utilized a mode of procedure it could not lawfully adopt).

The summons at issue here was issued by a law enforcement officer—not a court.¹ Therefore, it cannot be void ab initio because it is not an act of the court, and Ellis's argument that the summons was void and could not be amended fails.

B. The summons was not so defective as to render the final judgment void ab initio.

While a summons cannot be void ab initio , a charging document can be so defective as to violate the Constitution, in which case the final judgment will be void. Reed v. Commonwealth , 281 Va. 471, 481, 706 S.E.2d 854 (2011).

Although Ellis alleges in his assignment of error that the summons was "void," even if we were to construe his argument more broadly to include an argument that the summons was defective, his argument is still without merit.

Code § 19.2-227 provides that, "Judgment in any criminal case shall not be arrested or reversed upon any exception or objection made after a verdict to the indictment or other accusation, unless it be so defective as to be in violation of the Constitution." To avoid constitutional defectiveness, a charging document must give an accused "notice of the nature and character of the accusations against him so that he can prepare an adequate defense." Reed , 281 Va. at 481, 706 S.E.2d 854. Where the error is a misrecital of applicable statutes or ordinances, the charging document is nevertheless valid if it puts the accused on notice of the "gravamen of the crime" charged. Williams v. City of Petersburg , 216 Va. 297, 302, 217 S.E.2d 893 (1975).

1. The summons simply misrecited the applicable local ordinance provision.

The summons incorrectly cites Ordinance § 26-8 as the local ordinance incorporating Code § 18.2-272. Although the summons cited the wrong ordinance number, § 26-8, there is a Newport News Ordinance, § 26-72,² that legally incorporates Code § 18.2-272, meaning the city had the legal authority to charge Ellis under its existing ordinances. Both the Supreme Court and this Court have consistently held that a misrecital of a code provision in a charging document does not necessarily invalidate a conviction. See, e.g. , Williams , 216 Va. at 302, 217 S.E.2d 893 (affirming a conviction that referenced an incorrect statute); Williams v. Commonwealth , 5 Va. App. 514, 516-17, 365 S.E.2d 340 (1988) (affirming a conviction where the summons referenced a non-existent code subsection).

Rather than recognizing that the summons merely misrecited the applicable provision, Ellis contends that this case is similar to Amin , 63 Va. App. 203, 755 S.E.2d 482, where this Court held that a conviction was void ab initio because it was based on a summons that recited an offense that did not exist. In Amin , the summons charged the defendant with "Henrico County Ordinance 22-2 incorporating Virginia Code Section 18.2-308," and the circuit court convicted him of that charge. Id. at 207, 755 S.E.2d 482. Henrico County Ordinance § 22-2 incorporated Title 18.2, Chapter 7, Article 2 of the Code of Virginia, but it did not incorporate Article 7, in which the charged offense, Code § 18.2-308, was located. Id. at 208, 755 S.E.2d 482. Not only did Ordinance § 22-2 fail to incorporate Code § 18.2-308, but no other Henrico County ordinance incorporated that provision. Indeed, no ordinance could have done so because the General Assembly had not authorized the county to incorporate that provision. Id. Consequently, this Court reversed the conviction as void ab initio because the circuit court did not have the power to convict the defendant of "an offense that did not exist." Id. at 210, 755 S.E.2d 482.

But Amin is inapplicable to the facts here. The local ordinance at issue in Amin did not incorporate the state code provision—and legally, neither it nor any other ordinance could have done so because the locality did not have the authority. Id. at 209, 755 S.E.2d 482. In this case, however, the city was authorized to incorporate Code § 18.2-272 into its local ordinances, Code § 46.2-1313, and it in fact did so in Newport News Ordinance § 26-72.³ Therefore, unlike in Amin , the summons here did not charge Ellis with an offense that does not exist.

This case is more akin to Williams , 216 Va. 297, 217 S.E.2d 893. In that case, a warrant charged the defendant with refusing to take a breath test, but it incorrectly cited the statutory provision for preliminary field sobriety tests rather than the statutory provision for refusing a breath test. Id. at 301-02, 217 S.E.2d 893. Despite the misrecital of the statutory provision, the Supreme Court concluded that the description of the offense otherwise set out the "gravamen" of the offense; thus, "the misrecital [did] not invalidate the conviction." Id. at 302, 217 S.E.2d 893. Here, like in Williams , the summons provided Ellis with the gravamen of the offense charged by describing the charge as "Driving Suspended DUI Related" and referencing ...