Ghameshlouy v. Com.

Decision Date05 May 2009
Docket NumberRecord No. 1882-07-1.
Citation54 Va. App. 47,675 S.E.2d 854
PartiesEric Amir GHAMESHLOUY, s/k/a Eric Amir Ghamesouly v. COMMONWEALTH of Virginia.
CourtVirginia Court of Appeals

Justin W. Esworthy, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Eugene Murphy, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General; Harvey L. Bryant, Commonwealth's Attorney; Thomas M. Murphy, Deputy Commonwealth's Attorney, on brief), for appellee.

Present: McCLANAHAN, HALEY and PETTY, JJ.

McCLANAHAN, Judge.

Eric Amir Ghameshlouy was convicted of a misdemeanor in violation of City of Virginia Beach Code § 23-7.1. On appeal, appellant seeks to challenge the trial court's interpretation and application of this local ordinance. Appellant, however, did not perfect an appeal of the misdemeanor conviction. He perfected an appeal only as to a state law felony conviction arising out of the same incident. We, therefore, conclude that this Court has no jurisdiction to hear an appeal on the misdemeanor conviction, and dismiss the appeal.

I.

The City of Virginia Beach charged appellant with a misdemeanor violation of City of Virginia Beach Code § 23-7.1 (failure to provide correct identification to a police officer), as set forth in appellant's arrest warrant, entitled "Warrant of Arrest—Misdemeanor (Local)." At the same time, the Commonwealth charged appellant with three related offenses under state law (possession of cocaine (Code § 18.2-250); assault on a law enforcement officer (Code § 18.2-57(C); and probation violation (Code § 19.2-306)). All three of these state law offenses were adjudicated pursuant to a plea agreement, dated July 24, 2007, which was executed by appellant and the parties' counsel. A sentencing order on these three offenses was then entered on August 1, 2007.1 While the plea agreement did not indicate it was conditional, appellant and the Commonwealth have stipulated that the plea agreement was, in fact, conditional as to appellant's guilty plea on the cocaine possession charge.

On July 31, 2007, appellant filed a notice of appeal with the clerk's office of the circuit court. In the notice, appellant listed the circuit court case numbers assigned to each of the three state law offenses and the local misdemeanor offense. However, appellant did not identify the City of Virginia Beach as a party to the appeal. Rather, appellant named only the Commonwealth of Virginia as the prosecuting authority, as set forth in the style of the case. Appellant also named only the Commonwealth of Virginia as the appellee in his certificate to the notice of appeal (see Rule 5A:6(d)). Furthermore, appellant stated in the notice of appeal that he "hereby gives notice of his intention to appeal from a final judgment of the Circuit Court of the City of Virginia Beach, rendered ... on July 24 2007." We find no order in the record dated July 24, 2007. July 24, 2007 is, instead, the date of appellant's plea agreement on the three state law offenses, pursuant to which the circuit court entered the August 1, 2007 sentencing order, separate and apart from the July 30, 2007 sentencing order on appellant's local misdemeanor conviction.

Appellant then petitioned this Court seeking a review of issues involving the state law felony conviction for cocaine possession (question presented number 1) and the local misdemeanor conviction (question presented number 2). A judge of this Court denied the petition challenging the state law conviction, pursuant to Code § 17.1-407(C) (procedure for one-judge review in a criminal case), after determining there was no merit in appellant's argument that the trial court erred in denying his motion to suppress.

II.

We now dismiss that part of appellant's appeal challenging his local misdemeanor conviction due to his failure to perfect an appeal as to that conviction. For such an appeal, appellant was required to name the City of Virginia Beach in the notice of appeal because the City, as the prosecuting authority on the local misdemeanor charge, was an indispensable party. Woody v. Commonwealth, 53 Va.App. 188, 196-200, 670 S.E.2d 39, 43-45 (2008) (holding that Amherst County was an indispensable party in an appeal challenging convictions under both state law and the Amherst County Code, thus requiring that the County be named as a party in appellant's notice of appeal in order to perfect an appeal on the local law conviction).2 Appellant, however, did not name the City of Virginia Beach as a party in either the notice of appeal or the accompanying certificate of service—naming only the Commonwealth of Virginia. "[T]he failure to join an indispensable party is a jurisdictional defect that requires dismissal of the appeal." Id. at 199, 670 S.E.2d at 45 (dismissing on jurisdictional grounds an appeal of a conviction under local law because appellant did not name the local authority in his notice of appeal) (citing Asch v. Friends of the Community of Mount Vernon Yacht Club, 251 Va. 89, 91, 465 S.E.2d 817, 818-19 (1996))3; see Roberson v. City of Virginia Beach, 53 Va.App. 666, 674 S.E.2d 569 (2009) (holding that the City of Virginia Beach was an indispensable party in an appeal challenging a conviction under the City of Virginia Beach Municipal Code, thus requiring that the City be named as a party in appellant's notice of appeal in order to perfect an appeal on the local law conviction); Watkins v. Fairfax County Dep't of Family Servs., 42 Va. App. 760, 766, 595 S.E.2d 19, 22 (2004) ("[A]n indispensable party must be named in the notice of appeal in order to properly perfect the appeal.").

Appellant thus failed to file a timely notice of appeal of his local misdemeanor conviction as required under Rule 5A:6(a). That is to say, as to the misdemeanor conviction, a notice of appeal was not filed within 30 days of the final order entered upon the conviction; and the notice of appeal that appellant did file was "`"ineffective" and the appeal [was] never properly perfected'" as to that conviction. Woody, 53 Va.App. at 195, 670 S.E.2d at 43 (quoting Watkins, 42 Va.App. at 774, 595 S.E.2d at 26); see Vaughn v. Vaughn, 215 Va. 328, 329-30, 210 S.E.2d 140, 141-42 (1974) (holding that "appeal was not perfected according to law," and was therefore "dismissed as improvidently awarded," where notice of appeal named as appellee "Carolyn F. Vaughn, Administratrix of the Estate of Donald W. Vaughn, Jr.," rather than naming "Carolyn F. Vaughn" in her individual capacity). In short, no notice of appeal was filed as to the misdemeanor conviction.4 Accordingly, this Court is without jurisdiction to review appellant's misdemeanor conviction. Woody, 53 Va.App. at 195, 670 S.E.2d at 43 (Rule 5A:6(a) requirement is "mandatory" and "jurisdictional" (citations and internal quotation marks omitted)); Watkins, 42 Va.App. at 774, 595 S.E.2d at 26 ("[T]he failure to file a notice of appeal ... within the requisite 30-day period ... necessarily affects this Court's authority to exercise [its] jurisdiction" over the subject matter of the appeal.); Zion Church Designers and Builders v. McDonald, 18 Va.App. 580, 583, 445 S.E.2d 704, 706 (1994) ("The time requirements for filing are mandatory, and failure of the appellant to file the notice of appeal timely requires dismissal of the appeal.").

Furthermore, this jurisdictional defect was not waived, as appellant contends, as a result of the Commonwealth moving this Court to amend the caption of the case by adding the City of Virginia Beach as an appellee, and the City of Virginia Beach later purportedly joining in the Commonwealth's brief, addressing the merits of the misdemeanor conviction.5 First, such an amendment "presupposes a valid instrument as its object." Wellmore Coal Corp. v. Harman Mining Corp., 264 Va. 279, 283, 568 S.E.2d 671, 673 (2002). Because appellant did not file a notice of appeal as to the misdemeanor conviction, "there was nothing to amend."6 Id. Second, it is axiomatic that the Commonwealth could not effect a waiver of the jurisdictional defect as to some other party, i.e., the City of Virginia Beach, by the Commonwealth filing a motion requesting that such party be added as an appellee to the pending appeal. Third, it is also self-evident that the City of Virginia Beach could not "join" in an appeal that did not exist.7

We also find no authority for a third party to unilaterally participate in a pending appeal in this Court or the Virginia Supreme Court, other than the authority of the United States and the Commonwealth to file a brief amicus curiae without the consent of the Court or counsel. See Rules 5:30 and 5A:23. For a third party to be recognized as a party to a pending appeal, such party must obtain the Court's approval upon the party's motion to intervene. See Bagwell v. International Union, 244 Va. 463, 473-74, 423 S.E.2d 349, 355 (1992), rev'd on other grounds, 512 U.S. 821, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994) (addressing for the first time "whether a party may intervene in the first instance on [an] appeal" to this Court). The City of Virginia Beach filed no such motion in this appeal.8

Finally, estoppel principles are not available to appellant, as the dissent contends, "to create appellate jurisdiction over an indispensable party which is not properly before the Court," as the Virginia Supreme Court held in Asch. Asch, 251 Va. at 93, 465 S.E.2d at 819.

For these reasons, we dismiss appellant's appeal of his local misdemeanor conviction.

Dismissed.

HALEY, J., dissenting.

I respectfully dissent.

Justice Brown wrote: "Jurisdiction is the power to adjudicate a case on the merits and dispose of it as justice may require." The Resolute, 168 U.S. 437, 439, 18 S.Ct. 112, 113, 42 L.Ed. 533 (1897). But, "Jurisdiction is a word of many, too many, meanings." United States v. Vanness, 85 F.3d 661, 663 n. 2 (D.C.Cir.1996), quoted with approval in Steel Co. v. Citizens for a Better Env't, 523...

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