O'Malley v. Commonwealth
Decision Date | 03 May 2016 |
Docket Number | Record No. 1270–15–2. |
Citation | 785 S.E.2d 221,66 Va.App. 296 |
Parties | John Dixon O'MALLEY v. COMMONWEALTH of Virginia. |
Court | Virginia Court of Appeals |
Larry A. Pochucha (Bowen, Champlin, Foreman & Rockecharlie, PLLC, on brief), Richmond, for appellant.
Rosemary V. Bourne, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: HUMPHREYS, CHAFIN, JJ., and CLEMENTS, Senior Judge.
CLEMENTS
, Judge.
By summons issued pursuant to Code § 3.2–6540
, John Dixon O'Malley (appellant) was ordered to respond to an allegation that he was the owner of a dangerous dog. At a jury trial, the Commonwealth presented evidence that appellant's dog attacked and injured the dog of Randall Powell. At the conclusion of the proceeding, the jury found appellant's dog to be a dangerous dog as set forth in Code § 3.2–6540. On appeal of this finding, appellant contends the trial court erred: 1) in denying his motion to dismiss the proceeding because § 10–1 of the Code of the City of Richmond defines a “dangerous dog” to be a dog which has bitten, attacked, or inflicted injury upon a person or companion animal “other than a dog”; 2) in refusing jury instructions he proposed; 3) in refusing to declare that the proceeding was civil in nature; 4) in refusing to admit § 10–1 of the Richmond Code into evidence; and, 5) in denying the motion to set aside the verdict based upon insufficient evidence. We conclude that this Court does not have jurisdiction over this appeal. Accordingly, we do not reach the merits of this case, and we transfer it to the Supreme Court of Virginia pursuant to Code § 8.01–677.1
.1
In Settle v. Commonwealth, 55 Va.App. 212, 685 S.E.2d 182 (2009)
(Settle I ), the defendant appealed to this Court from a lower court's decision regarding forfeiture of the defendant's dogs pursuant to former Code § 3.1–796.115.2 At that time, Code § 3.1–796.115(A) and (B) provided procedures for a court hearing following the initial seizure of an animal that was allegedly abandoned, mistreated, or not provided with adequate care. Regarding that hearing and appeal therefrom, Code § 3.1–796.115(C) provided: 3 Pursuant to Code § 3.1–796.115, a finding by the court that forfeiture of the dog was appropriate did not result in a criminal conviction for the dog's owner, only a civil forfeiture of the animal. See Settle I, 55 Va.App. at 219, 685 S.E.2d at 185
. This Court noted:
.
Addressing this Court's jurisdiction to consider the appeal of the forfeiture, we recognized:
It is well established that the Canova Elec. Contracting, Inc. v. LMI Ins. Co., 22 Va.App. 595, 599, 471 S.E.2d 827, 829 (1996)
(citation omitted).
Commonwealth v. Southerly, 262 Va. 294, 299, 551 S.E.2d 650, 653 (2001).
Id. at 217–18, 685 S.E.2d at 184–85
. We concluded that the underlying action for forfeiture of the dogs and ensuing appeal were civil in nature. Id. at 221, 685 S.E.2d at 186.
(quoting Rafferty, 241 Va. at 322, 402 S.E.2d at 19 ). Accordingly, we found that the forfeiture proceeding and appeal were civil in nature and transferred that portion of the appeal to the Supreme Court of Virginia pursuant to Code § 8.01–677.1. See
id. at 223, 685 S.E.2d at 187.
The Supreme Court of Virginia apparently disagreed with this Court's decision to transfer the forfeiture appeal. By unpublished order, after “[h]aving reviewed the record, briefs, and relevant statutes in the case,” the Supreme Court stated it was “of the opinion that it does not have jurisdiction over the portion of the appeal that was transferred by the Court of Appeals” and transferred the forfeiture matter back to this Court pursuant to Code § 8.01–677.1
Commonwealth, No. 100520 (Va. Apr. 7, 2010). Subsequently, in Settle v. Commonwealth, 56 Va.App. 222, 223, 692 S.E.2d 641, 641 (2010) (Settle II
), we found the evidence was sufficient to find that forfeiture of the animals pursuant to Code § 3.1–796.115 was proper.4
In the present case, appellant was not charged with or convicted of any crime. He was issued a summons pertaining to his dog and given notice of proceedings to determine whether the dog was dangerous pursuant to Code § 3.2–6540(A) and (B)
. No language in Code § 3.2–6540 characterizes as criminal the proceeding to identify a canine as a dangerous dog. Just as in former Code § 3.1–796.115(C), Code § 3.2–6540(B) provides: A jury found appellant's dog to be dangerous. Upon this finding, the trial court ordered appellant to comply with registration and maintenance provisions under Code § 3.2–6540 and to make restitution.
Our conclusion in Settle I that the underlying proceeding and appeal were civil in nature is equally applicable here, where appellant sustained no criminal conviction and the same statutory language regarding the procedure governing the proceeding is involved. Thus, our holding in Settle I as to the jurisdiction of this Court is binding under rules of stare decisis. See Commonwealth v. Burns, 240 Va. 171, 173–74, 395 S.E.2d 456, 457 (1990)
. We further are bound by the Supreme Court of Virginia's decision in Rafferty, upon which our Settle I decision was based. “[W]e are bound by the decisions of the Supreme Court of Virginia and are without authority to overrule [them].” Roane v. Roane, 12 Va.App. 989, 993, 407 S.E.2d 698, 700 (1991).
The Supreme Court of Virginia's unpublished order transferring Settle back to this Court is not a decision binding upon this Court. As we explained in Settle I, 55 Va.App. at 223, 685 S.E.2d at 187
:
“[w]hile a decision [of the Virginia Supreme Court] ‘on the merits,’ including a denial of a petition for appeal, may have precedential value, discerning the grounds that formed the basis for denial is indispensable in assessing its potential applicability in future cases.” [Sheets v. Castle, 263 Va. 407,] 411–12, 559 S.E.2d [616,] 619
[ (2001) ]. “However, unless the grounds upon which the refusal is based are discernible from the four corners of the Court's order, the denial carries no precedential value.” Id. at 412, 559 S.E.2d at 619.
We conclude that the grounds upon which the Settle transfer was based are not discernible...
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