Jacks v. Commonwealth

• Decision Date: 17 May 2022
• Docket Number: Record No. 0833-20-3
• Citation: 74 Va.App. 783,872 S.E.2d 233
• Parties: Clifton Thomas JACKS v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

74 Va.App. 783

872 S.E.2d 233

Clifton Thomas JACKS

v.COMMONWEALTH of Virginia

Record No. 0833-20-3

Court of Appeals of Virginia, Richmond.

MAY 17, 2022

Jonathan B. Tarris (Tarris Law, PLC, on briefs), for appellant.

Matthew P. Dullaghan, Senior Assistant Attorney General (Mark R. Herring,¹ Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Humphreys, Beales, Huff, O'Brien, Russell, AtLee, Malveaux, Athey, Fulton, Ortiz, Causey, Friedman, Chaney, Raphael, Lorish and Callins

OPINION BY JUDGE GLEN A. HUFF

The Rockbridge County Circuit Court (the "circuit court") denied Clifton Thomas Jacks's appeal from a conviction he sustained in the Rockbridge County General District Court (the "general district court"). Jacks then appealed that decision to this Court, and a divided panel affirmed. Jacks v. Commonwealth , 73 Va. App. 473, 861 S.E.2d 599 (2021). On Jacks's motion, this Court stayed the mandate from the panel decision, 73 Va. App. 499, 862 S.E.2d 473 (2021), and heard argument en banc. Finding error in the circuit court's ruling, this Court reverses the circuit court's dismissal of Jacks's appeal and remands the case to the circuit court.

I. BACKGROUND

On March 16, 2020, Jacks was convicted in the general district court for driving while intoxicated. He filed a notice of appeal from that conviction to the circuit court on June 3, 2020. By order entered on June 16, 2020, the circuit court denied Jacks's appeal as untimely under Code § 16.1-132 ’s ten-day deadline for appeals from convictions in general district courts.²

Jacks appealed to this Court and argued the circuit court's denial order was erroneous because Code § 16.1-132 ’s filing deadline was tolled by emergency orders from the Virginia Supreme Court when he noted his appeal.³ The Commonwealth did not dispute the merits of Jacks's argument at the panel stage but instead argued, among other things, that Jacks did not preserve the argument in the circuit court and therefore waived it under Rule 5A:18. Jacks countered the Commonwealth's assertion at oral argument, contending (1) he did not waive his argument because he let the circuit court know what action he wanted it to take (i.e., granting an appeal) and (2) even if he failed to present his argument in the circuit court, that failure was excused by Code § 8.01-384(A).

A divided panel of this Court affirmed the circuit court's decision. The panel majority agreed with the Commonwealth that Jacks's assignment of error was waived under Rule 5A:18. Jacks , 73 Va. App. at 476-78, 861 S.E.2d 599. In addressing Jacks's argument to the contrary, the panel majority provided the following:

To meet the Commonwealth's arguments that the issue raised on appeal was procedurally defaulted, at oral argument [Jacks] asserted for the first time that this Court should apply Code § 8.01-384(A), which contains an exception to the contemporaneous objection requirement. However, an argument presented for the first time at oral argument will not be considered by this Court. Further, [Jacks] did not invoke an exception to Rule 5A:18 in his opening brief, precluding this Court's consideration of the issue raised on appeal.

Id. at 479, 861 S.E.2d 599 (citations, internal quotation marks, and footnotes omitted). The panel majority then provided its own analysis of Code § 8.01-384(A) ’s exception to the contemporaneous objection rule and concluded it "d[id] not find that [the statute] is applicable under the circumstances of this case." Id. at 480-86, 861 S.E.2d 599. The panel dissent disagreed with both the majority's and the Commonwealth's procedural arguments and would have reversed the circuit court's denial of Jacks's appeal and remanded for further proceedings. Id. at 486-98, 861 S.E.2d 599 (Huff, J., dissenting).

Jacks petitioned for rehearing en banc and asked this Court to consider the merits of his assignment of error and to reverse the circuit court's denial of his appeal to the circuit court. This Court granted Jacks's petition on September 21, 2021.

II. STANDARD OF REVIEW

The merits of Jacks's assignment of error require this Court to interpret statutes governing criminal procedure and emergency orders from the Virginia Supreme Court. They therefore present questions of law that this Court reviews de novo. See Alcoy v. Valley Nursing Homes, Inc. , 272 Va. 37, 41, 630 S.E.2d 301 (2006). The procedural issues raised in this appeal require this Court to interpret statutory provisions and the Rules of Court, as well as case law interpreting each, so they too present questions of law that this Court reviews de novo. See Brown v. Commonwealth , 279 Va. 210, 217, 688 S.E.2d 185 (2010).

III. ANALYSIS

There are two issues presented in this en banc proceeding: (1) whether any procedural default rules prevent this Court from considering the merits of the case and (2) assuming this Court can consider the merits, whether the circuit court rightly denied Jacks's appeal from the general district court. This Court begins with the merits to provide necessary context for the procedural issues.

A.

The circuit court, sua sponte , denied Jacks's appeal from his general district court conviction because he noted his appeal outside Code § 16.1-132 ’s ordinary ten-day window. But as Jacks points out, the circuit court failed to consider the tolling effect of the Virginia Supreme Court's emergency orders.

Code § 17.1-330(D) grants the Virginia Supreme Court authority to declare a judicial emergency, allowing the Court to "suspend, toll, extend, or otherwise grant relief from deadlines, time schedules, or filing requirements imposed by otherwise applicable statutes, rules, or court orders in any court processes and proceedings, including all appellate court time limitations." On March 16, 2020, the Virginia Supreme Court did just that when it issued a Declaration of Judicial Emergency, stating: "[I]t is hereby ORDERED that NON-ESSENTIAL, NON-EMERGENCY court proceedings in all circuit and district courts be and hereby are SUSPENDED and all deadlines are hereby tolled and extended, pursuant to Code § 17.1-330(D)." March 16, 2020, Order Declaring a Judicial Emergency in Response to COVID-19 Emergency.

On March 27, 2020, the Supreme Court entered a second emergency order that extended the first order's tolling provisions on filing deadlines. March 27, 2020, Order Extending Declaration of Judicial Emergency in Response to COVID-19 Emergency. It did the same on April 22, 2020, in its third emergency order, except it used the phrase "case related deadlines" instead of just "deadlines." April 22, 2020, Third Order Extending Declaration of Judicial Emergency in Response to COVID-19 Emergency.

On May 6, 2020, the Supreme Court entered a fourth order extending the tolling provisions of its prior orders:

As provided in the First, Second, Third and Clarification Orders, for all cases in district and circuit courts the statutes of limitation and all other case-related deadlines , excluding discovery deadlines, shall continue to be tolled during the ongoing Period of Judicial Emergency (now March 16, 2020, through June 7, 2020 ) pursuant to Va. Code § 17.1-330.

May 6, 2020, Fourth Order Modifying and Extending Declaration of Judicial Emergency in Response to COVID-19 Emergency (emphasis added).

This Court's interpretation of these orders and their application to this case is straightforward: when the Virginia Supreme Court said "all case-related deadlines" except discovery deadlines, it meant "all case-related deadlines" except discovery deadlines. Put simply, the prosecution of Jacks for driving under the influence was a "case," and Code § 16.1-132 ’s ten-day appeal window was a "deadline" that "related" to the case because it restricted how long Jacks (ordinarily) would have had to note his appeal from his general district court conviction. Jacks was convicted in the general district court on March 16, 2020 (when the first emergency order was issued) and noted his appeal on June 3, 2020 (while the fourth emergency order's tolling provisions were still operative). So, Code § 16.1-132 ’s ten-day deadline was tolled from the day of Jacks's conviction through the time he noted his appeal, which means his appeal was timely and should not have been denied by the circuit court.⁴

B.

But the merits of Jacks's assignment of error have never been the main point of contention in this appeal. Instead, the Commonwealth focused its efforts in briefing and oral argument asserting that Jacks's assignment of error is waived—and that is where the panel split. The Commonwealth's procedural arguments are three-fold: (1) Jacks failed to comply with Rule 5A:12(c)(1) and Rule 5A:20(c) ’s requirement that the opening brief reference the page(s) in the record where the assignment of error was preserved; (2) he failed to comply with Rule 5A:8 ’s requirement that he include a transcript or written statement of facts in the record and thus did not "provide a sufficient record" for this Court to resolve this appeal; and (3) he did not present the argument to the circuit court that he now makes on appeal, which bars his assignment of error under Rule 5A:18.

Although the Commonwealth separates its arguments related to Rules 5A:12, 5A:20, and 5A:18, each argument works together to make a single comprehensive argument: because the circuit court was never presented with the argument that Code § 16.1-132 ’s ten-day deadline was tolled by the Virginia Supreme Court's emergency orders, Jacks did not preserve that argument for appeal and consequently cannot reference any point in the record where he did so. Jacks counters that argument by asserting, among other things, that Code § 8.01-384(A) ’s exception to the contemporaneous objection standard applies here and excuses the fact that he did not make the tolling argument to the circuit court.

This Court agrees with Jacks that Code § 8.01-384(A) applies here and allows it to consider the merits of his appeal. And because the...