Jay v. Com.
| Decision Date | 18 April 2008 |
| Docket Number | Record No. 071599.,Record No. 071432. |
| Parties | Robert Lee JAY v. COMMONWEALTH of Virginia. Darius Tremayne James v. Commonwealth of Virginia. |
| Court | Virginia Supreme Court |
Suzanne Moushegian, Senior Assistant Public Defender, for appellant.
Alice T. Armstrong, Assistant Attorney General II (Robert F. McDonnell, Attorney General, on brief), for appellee.
Present: All the Justices.
OPINION BY Justice CYNTHIA D. KINSER.
These appeals involve a common question regarding the Court of Appeals' use of Rule 5A:20(e) to dismiss a petition for appeal, or a portion thereof, when an appellant does not comply with the rule's requirements. Because the provisions of Rule 5A:20(e) do not impose jurisdictional requirements, we conclude that the Court of Appeals erred in its application of the rule.
In the appeal by Darius Tremayne James, we also conclude that the evidence was insufficient to sustain his convictions for attempted robbery and attempted use of a firearm during the commission of attempted robbery.
We will first summarize the relevant facts and proceedings of each case that pertain to the Court of Appeals' application of Rule 5A:20(e) and then analyze that issue. In a separate section of the opinion, we will address the facts pertinent to James' challenge to the sufficiency of the evidence and resolve that question.
At a bench trial in the Circuit Court for the City of Colonial Heights, Robert Lee Jay was found guilty of breaking and entering a dwelling in the daytime with the intent to commit larceny, in violation of Code § 18.2-91, and grand larceny, in violation of Code § 18.2-95. The trial court sentenced Jay to 20 years of incarceration for the grand larceny conviction. The court suspended that sentence and also suspended imposition of the sentence for the breaking and entering conviction for 20 years on the condition that Jay, among other things, serve 12 months of incarceration in a regional jail.
Jay appealed his convictions to the Court of Appeals of Virginia. He presented two questions in his petition for appeal in the Court of Appeals, only one of which is pertinent to the issue before us: "Whether the trial court erred in finding sufficient factual evidence that the defendant committed the breaking and entering given that there was a complete lack of direct evidence linking the defendant to the actual breaking and entering."
In the "Principles of Law and Argument" section of his petition for appeal, Jay addressed that specific question presented in two paragraphs. In the first paragraph, Jay quoted from the trial court's holding with regard to the breaking and entering charge and then argued "there was no direct evidence linking the defendant to the breaking and entering," i.e., no boot prints associated with Jay, no fingerprints, no DNA evidence, no eyewitnesses, and no confession by Jay to the breaking and entering. In the second paragraph, Jay stated:
The Commonwealth is required to exclude all reasonable hypotheses of innocence. The undersigned presented a reasonable hypothesis at trial. That argument was that there could have easily been a co-conspirator in this case, assuming that the defendant was involved in the first place. That person could have committed the breaking and entering and the defendant could have come into possession of said property after the breaking and entering. Given the complete lack of direct evidence linking the defendant to the breaking and entering, the [trial c]ourt improperly convicted the defendant of breaking and entering.
In a per curiam order, the Court of Appeals held that, with regard to Jay's challenge to the sufficiency of the evidence to sustain his breaking and entering conviction, Jay's petition for appeal failed to comply with Rules 5A:12(c) and 5A:20(e). Jay v. Commonwealth, Record No. 3170-06-2 (June 8, 2007). The Court of Appeals explained that "Rule 5A:20(e), in conjunction with Rule 5A:12(c), mandates that the petition for appeal include `[t]he principles of law, the argument, and the authorities relating to each question presented....'" Id., slip op. at 3. Citing its decisions in Buchanan v. Buchanan, 14 Va.App. 53, 415 S.E.2d 237 (1992), and Theismann v. Theismann, 22 Va.App. 557, 572, 471 S.E.2d 809, 816, aff'd on reh'g en banc, 23 Va.App. 697, 479 S.E.2d 534 (1996), the Court of Appeals concluded that Jay "did not comply with Rule 5A:20(e); the petition for appeal does not contain sufficient principles of law, argument, or citation to legal authorities or the record to fully develop" the argument regarding the breaking and entering conviction. Jay, slip op. at 3. Consequently, the Court of Appeals dismissed the appeal with regard to that one question presented.1 Id.
Darius Tremayne James was convicted in a bench trial in the Circuit Court of the City of Virginia Beach of attempted robbery in violation of Code §§ 18.2-58 and 18.2-26; conspiracy to commit robbery in violation of Code §§ 18.2-22 and 18.2-58; and attempted use of a firearm during the commission of attempted robbery in violation of Code § 18.2-53.1. The trial court sentenced James to five years of incarceration on the attempted robbery conviction, five years on the conspiracy conviction, and three years on the conviction for attempted use of a firearm. The trial court suspended both of the five-year sentences.
In his petition for appeal to the Court of Appeals, James challenged the sufficiency of the evidence on all three convictions in the following question presented: "Whether there was sufficient evidence to convict the defendant of attempted robbery, conspiracy to commit robbery and use of a firearm during the commission of an attempted robbery?" As pertinent to the issue before us, James, in the "Argument" section of his petition for appeal, first recited several general principles of law, with citations to supporting authority, such as the principle that the Commonwealth must prove each element of a crime beyond a reasonable doubt. With regard to his challenge to the sufficiency of the evidence to sustain his conviction for conspiracy, James summarized, in a single paragraph, the relevant evidence adduced at trial concerning the conspiracy to commit robbery and then stated:
One's assumption or hope that another will participate or help, with no discussion or plan in place, is not an agreement; thus there was no conspiracy. With the evidence only consisting of [the accomplice's] presence and testimony regarding what [the accomplice] may or may not have known, that is insufficient to convict the defendant of conspiracy to commit robbery.
In a per curiam order, the Court of Appeals dismissed the portion of James' petition for appeal challenging the sufficiency of the evidence to sustain the conviction for conspiracy. James v. Commonwealth, Record No. 2335-06-1, slip op. at 1 (March 21, 2007). The Court of Appeals explained that James' "petition for appeal did not comply with Rule 5A:20(e); the petition for appeal does not contain sufficient principles of law, or citation to legal authorities to fully develop [James'] conspiracy argument."2 Id. James demanded consideration by a three-judge panel of the Court of Appeals, which concluded: "For the reasons previously stated in the order entered by this [c]ourt on March 21, 2007, the petition for appeal in this case hereby is denied in part and dismissed in part." James v. Commonwealth, Record No. 2335-06-1, slip op. at 1 (July 5, 2007).
On appeal to this Court, both Jay and James assert that the Court of Appeals erred by dismissing a portion of their respective petitions for appeal based on their failure to comply with the requirements of Rule 5A:20(e). The Commonwealth, however, argues that the Court of Appeals did not err because each defendant failed to cite any authority in support of the questions presented to which Rule 5A:20(e) was applied. According to the Commonwealth, the Court of Appeals has routinely applied the provisions of Rule 5A:20(e) for more than a decade in the same manner as the court did in these two cases.
The provisions of Rule 5A:12(c) require "[t]he form and contents of the petition for appeal [to] conform in all respects to the requirements of the opening brief of appellant" as set forth in Rule 5A:20. Pursuant to Rule 5A:20, an appellant's opening brief, and likewise a petition for appeal, must contain eight items. The relevant provisions of subsection (e), which are at issue in these appeals, require a petition for appeal to contain:
The principles of law, the argument, and the authorities relating to each question presented.... With respect to each question, the principles, the argument, and the authorities shall be stated in one place and not scattered through the brief.
The Court of Appeals' interpretation of Rule 5A:20(e), like the interpretation of a statute, presents a question of law that we review de novo. See Washington v. Commonwealth, 272 Va. 449, 455, 634 S.E.2d 310, 313 (2006) (); Ainslie v. Inman, 265 Va. 347, 352, 577 S.E.2d 246, 248 (2003) (same).
In the cases before us, the Court of Appeals dismissed portions of the petitions for appeal for failure to cite authorities in support of certain questions presented as required by Rule 5A:20(e). By dismissing rather than denying the appeals, the Court of Appeals rendered the requirements of Rule 5A:20(e) jurisdictional. The Court of Appeals, however, erred in doing so, and in fact, has taken a different position in prior cases. In Riner v. Commonwealth, 40 Va. App. 440, 579 S.E.2d 671 (2003), aff'd on other grounds, 268 Va. 296, 601 S.E.2d 555 (2004), the Court of Appeals stated:
The filing of a timely petition for appeal under Rule 5A:3(a), like the filing of a timely notice of appeal under that...
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