Lundmark v. Commonwealth

• Decision Date: 12 April 2022
• Docket Number: Record No. 0677-21-2
• Citation: 74 Va.App. 569,871 S.E.2d 249 (Mem)
• Parties: Paul H. LUNDMARK, Appellant, v. COMMONWEALTH of Virginia, Appellee.
• Court: Virginia Court of Appeals

74 Va.App. 569

871 S.E.2d 249 (Mem)

Paul H. LUNDMARK, Appellant,

v.COMMONWEALTH of Virginia, Appellee.

Record No. 0677-21-2

Court of Appeals of Virginia.

April 12, 2022

On March 22, 2022 came the appellant, by counsel, and filed a petition requesting that the Court set aside its March 8, 2022 order dismissing this appeal and grant a rehearing en banc on the issues raised in the petition.

On consideration whereof and pursuant to Rule 5A:35 of the Rules of the Supreme Court of Virginia, the petition for rehearing en banc is granted, the order entered herein on March 8, 2022 is vacated, and the appeal is reinstated on the docket of the Court.

The en banc review will be limited to reconsidering the procedural dismissal of this appeal. The request concerning merit review in the petition for rehearing is premature in light of the order entered on March 8, 2022. Accordingly, the parties are directed to file briefs addressing the issue of whether this Court has jurisdiction over this case.

The appellant's brief, which may not exceed 7,000 words, must be filed within 21 days of the date of this order. Henrico County is requested to file an answering brief, which may not exceed 7,000 words, within 14 days after the appellant's brief has been filed. Should the appellant elect to do so, he may file a reply brief, limited to 3,500 words, within 14 days of the date on which Henrico County's answering brief is filed.

The Attorney General is requested to file a brief amicus curiae within 14 days after Henrico County's brief is filed regarding this Court's jurisdiction in light of the procedural issues in this appeal. See Rule 5A:23(d).

Attachment

In the Court of Appeals of Virginia on Tuesday the 8th day of March, 2022 .

Paul H. Lundmark, Appellant,

against

Commonwealth of Virginia, Appellee.

Record No. 0677-21-2

Circuit Court No. CR21-299-00M

From the Circuit Court of Henrico County

Before Judges Humphreys, Causey and Senior Judge Frank

On December 27, 2021, the Commonwealth, by counsel, filed a motion asking this Court to amend the style of the case, to suspend the briefing schedule, and to grant the Attorney General leave to withdraw as counsel. On December 28, 2021, we granted the motion to suspend briefing pending further order of the Court.

By final order entered June 30, 2021, the Circuit Court of Henrico County convicted appellant of driving under the influence. The trial court sentenced appellant to incarceration in the Henrico County jail for a term of twelve months, but suspended execution of the sentence for three years. The final order lists "Henrico County Ordinance 22-2 incorporating Virginia Code Section 18.2-266," as the offense for which appellant was convicted. The order is styled "County of Henrico vs. Paul H. Lundmark." Similarly, the warrant in this case cites the Henrico County ordinance, which incorporates the state statute as the offense for which appellant was charged.

Appellant timely filed a notice of appeal in the trial court naming the Commonwealth of Virginia as the opposing party. The notice styles the case as "Commonwealth of Virginia v. Paul H. Lundmark" and was served on "the Commonwealth's Attorney for the County of Henrico." The notice of appeal lists the circuit court docket number and the date of the final order.

Consistent with the notice of appeal, the Clerk of this Court docketed the appeal as "Paul H. Lundmark v. Commonwealth of Virginia." The petition for appeal named the Commonwealth as the appellee. An assistant Commonwealth's attorney filed a brief in opposition to the petition for appeal addressing the merits of the case, signing the brief on behalf of the Commonwealth. No response was filed in the name of Henrico County. On December 15, 2021, we granted appellant's petition for appeal.

In its present motion, the Commonwealth asserts that appellant "was not tried under the Code of Virginia, but under a Henrico County ordinance," and that, therefore, "the appellee in the appeal is the County of Henrico, not the Commonwealth of Virginia." The Commonwealth states that "[w]hile the Attorney General is vested with authority to represent the Commonwealth in criminal appeals, that authority does not extend to matters related to violations of local ordinances" and thus seeks leave to withdraw as counsel. See Code § 2.2-511. The Commonwealth served both appellant's counsel and the Henrico County Commonwealth's Attorney with a copy of the motion.¹ The Commonwealth avers that it conferred with appellant's counsel, who advised the Commonwealth that he does not object to the motion and "does not plan to file a response to it." We grant the Commonwealth's motion to withdraw as counsel because the Attorney General does not represent localities. See Code § 2.2-511.

The Attorney General, on behalf of the Commonwealth, further moved the Court to amend the style of the appeal. Counsel for appellant has not filed any response to the Commonwealth's motion or moved to amend the style of the case. Henrico County has not filed an objection to the motion or otherwise entered any appearance in this case.

For the Court of Appeals to have jurisdiction over a case, a timely notice of appeal must "adequately identif[y] the case to be appealed." Roberson v. Commonwealth , 279 Va. 396, 407, 689 S.E.2d 706 (2010) (citing Ghameshlouy v. Commonwealth , 279 Va. 379, 390, 689 S.E.2d 698 (2010) ). If the notice of appeal is "sufficient on its face to identify" the conviction being appealed, this Court's potential jurisdiction "ripen[s]" into active jurisdiction over the specific case. Ghameshlouy , 279 Va. at 394, 689 S.E.2d 698. "To adjudicate an appeal, this Court must have jurisdiction over the appeal itself and the indispensable parties." Woody v. Commonwealth , 53 Va. App. 188, 199, 670 S.E.2d 39 (2008). "Where one, or both, is lacking, we cannot adjudicate the appeal." Id. "For this Court to obtain jurisdiction over an individual who was a party in the trial court, the party must be named in the notice of appeal. Otherwise, we lack jurisdiction over the party." Id. An appellate court does not look to other documents to determine if the notice is sufficient. See Ghameshlouy , 279 Va. at 394, 689 S.E.2d 698.

Here, the notice of appeal was filed timely in the circuit court. It correctly identifies the circuit court, the circuit court docket number, and the date of the sentencing order. The notice, however, incorrectly names "Commonwealth of Virginia" as the prosecuting party, indicating a violation of state law.

"The controlling documents for determining what entity served as the prosecuting authority in a criminal trial are the instrument, that is the summons, warrant, or indictment, under which the charge is brought[,] and the orders of conviction and sentencing that conclude the trial." Roberson , 279 Va. at 406, 689 S.E.2d 706. Here, both the warrant and final order establish that appellant was charged and convicted under Henrico County Ordinance § 22-2 for driving under the influence. Consequently, Henrico County, not the Commonwealth, was the prosecuting authority. It follows that Henrico County "was the necessary party to be identified in [the] notice of appeal as the appellee." See id.

Appellant did not name Henrico County as a party in the appeal and instead incorrectly listed "Commonwealth of Virginia" as the prosecuting party.

We recognize that the Supreme Court has held that a "defect in the notice of appeal that does not touch on its timeliness or the identity of the case to be appealed is procedural only" and subject to waiver. Nicholson v. Commonwealth , 300 Va. 17, 22, 858 S.E.2d 821 (2021) (quoting Roberson , 279 Va. at 407, 689 S.E.2d 706 ); Ghameshlouy , 279 Va. at 394, 689 S.E.2d 698. In Ghameshlouy , the Supreme Court found that waiver occurred when the proper party did not object to the defect in the notice of appeal and filed a joint brief with the Commonwealth. 279 Va. at 394, 689 S.E.2d 698. Similarly, in Nicholson , the Supreme Court held that the procedural defect was waived when the locality entered a general appearance in the case and acknowledged it had received timely notice of Nicholson's appeal, withdrew its opposition to Nicholson's motions, and consented to the relief she requested. Nicholson , 300 Va. at 21, 858 S.E.2d 821. In this case, however, Henrico County, an indispensable party, has not been joined in the notice of appeal, has not entered an appearance, and has not waived the procedural defect apparent on the face of the notice of appeal. As a result, the notice of appeal "failed to satisfy the minimum requirements to confer jurisdiction" on this Court. See Roberson , 279 Va. at 408, 689 S.E.2d 706 ; see also Woody , 53 Va. App. at 193-200, 670 S.E.2d 39 (dismissing for lack of active jurisdiction because the notice of appeal did not name the prosecuting party). Therefore, we deny the Commonwealth's motion to amend the style of the case because no proper party has requested that action.²

Upon further consideration, we conclude that we do not have jurisdiction over this appeal because appellant failed to join an indispensable party. See Roberson , 279 Va. at 408, 689 S.E.2d 706 ; see also Woody , 53 Va. App. at 193-200, 670 S.E.2d 39. Accordingly, the appeal in this case is dismissed.³

This issue arises with such regularity⁴ that members of the bar may benefit from the publication thereof, and the clerk is so directed.

Causey, J., dissenting.

This Court has jurisdiction and should consider the case on the merits because appellant timely filed his petition and adequately identified the case to be appealed.

"In order to confer active jurisdiction on an appellate court, a notice of appeal must be timely, and it must ‘adequately identif[y] the case to be appealed.’ " Nicholson v. Commonwealth , 300 Va. 17, 22, 858 S.E.2d 821 (2021) (quoting Roberson v. Commonwealth , 279 Va. 396, 407, 689 S.E.2d 706 (2010) ). In Nicholson , the Supreme Court "conclude[d] that [appellant's] notice of appeal...