McGinnis v. Commonwealth
| Decision Date | 13 December 2018 |
| Docket Number | Record No. 180055 |
| Citation | 821 S.E.2d 700 |
| Parties | Daniel Ernest MCGINNIS v. COMMONWEALTH of Virginia |
| Court | Virginia Supreme Court |
Keith Orgera, Deputy Public Defender, for appellant.
David M. Uberman, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: Lemons, C.J., Goodwyn, McClanahan, Powell, Kelsey, and McCullough, JJ. and Koontz, S.J.
OPINION BY SENIOR JUSTICE LAWRENCE L. KOONTZ, JR.
Daniel Ernest McGinnis appeals from a judgment of the Court of Appeals of Virginia affirming his convictions in a bench trial in the Circuit Court of the City of Lynchburg on three counts of larceny by worthless check in violation of Code § 18.2-181. The Court of Appeals affirmed McGinnis’ convictions without reaching the merits of his sole assignment of error which challenged, as a matter of law, the sufficiency of the evidence to support his convictions. Relying primarily upon its interpretation of the provisions of Code § 8.01-271.1 and its review of the undisputed procedural facts of this case, the Court of Appeals held that McGinnis’ assignment of error was not preserved for appeal in the circuit court under the requirements of Rule 5A:18. McGinnis v. Commonwealth , 68 Va.App. 262, 274, 808 S.E.2d 200 (2017).
Consistent with our Rule 5:17(c)(1), McGinnis has assigned error to the judgment of the Court of Appeals. We take this opportunity to stress that the failure of counsel to heed the directives of Rule 5:17(c)(1)(ii) that only "assignments of error relating to assignments of error presented in, and to actions taken by, the Court of Appeals may be included in the petition for appeal to this Court" and "[i]f the error relates to failure of the Court of Appeals to rule on any issue, error must be assigned to such failure to rule," are among the principal reasons an appeal from the Court of Appeals is dismissed by this Court without a review of the merits of the underlying claim. See , e.g. , Davis v. Commonwealth , 282 Va. 339, 717 S.E.2d 796 (2011).
We granted McGinnis this appeal on the following assignments of error:
In cases where the Court of Appeals has determined that it cannot reach the merits of an assignment of error because of a procedural bar, we review de novo that court’s application of its rules to determine whether the procedural bar was properly applied. Jay v. Commonwealth , 275 Va. 510, 517, 659 S.E.2d 311 (2008). In this context, we begin our review of this case with a summary of the appellate proceedings that resulted in the Court of Appeals affirming McGinnis’ convictions without reviewing the merits of his assignment of error.
The circuit court entered final judgment against McGinnis in a sentencing order dated December 29, 2016. On January 18, 2017, the twentieth day after entry of the final judgment, McGinnis filed a pleading styled as a "motion to set aside verdict and for a new trial." Therein, McGinnis contended that the evidence was insufficient to sustain his convictions because the Commonwealth failed to prove that the checks at issue were "not in payment of a debt," and had been passed with an intent to defraud.1
The motion was signed by McGinnis personally and served on the Commonwealth’s Attorney. However, the motion had no provision for a signature by his trial counsel nor does the certificate of service indicate that a copy of the motion was served on his trial counsel. On January 19, 2017, the final day of the circuit court’s jurisdiction under Rule 1:1, the circuit court considered the motion and entered an order denying McGinnis’ motion to set aside the verdict and for a new trial.
On January 20, 2017, McGinnis’ appellate counsel2 filed a notice of appeal "from the final judgment of the Lynchburg Circuit Court entered on December 29, 2016." On April 19, 2017, McGinnis’ counsel electronically filed a petition for appeal in the Court of Appeals asserting one assignment of error:
The Trial Court erred in convicting Mr. McGinnis of three counts of larceny by worthless check, in violation of Va. Code § 18.2-181, as the evidence was insufficient as a matter of law.
In compliance with Rule 5A:12(c)(1), McGinnis averred that this error had been preserved in the "Motion to Set Aside filed January 18, 2017, and Order dated January 19, 2017." The Court of Appeals granted McGinnis an appeal on this assignment of error in an order dated June 7, 2017.
On October 3, 2017, after McGinnis and the Commonwealth filed their briefs and the appendix for the appeal, a deputy clerk of the Court of Appeals advised the parties that "[t]he panel of judges assigned this appeal ask that you be prepared to answer the following question at oral argument:
Is a motion to set aside the verdict that was signed by the defendant but was not signed by the defendant’s attorney of record sufficient to preserve an issue for appellate review? See Code Section 8.01-271.1."
On October 4, 2017, McGinnis’ appellate counsel McGinnis , 68 Va.App. at 266, 808 S.E.2d 200. On October 6, 2017, McGinnis’ appellate counsel, relying upon Code § 8.01-271 which allows for counsel to sign a previously unsigned motion if this is accomplished promptly after the matter is brought to his attention, filed a motion in the Court of Appeals to amend the record to include a copy of the post-conviction motion with his signature appended.3
On October 11, 2017, the Court of Appeals heard oral argument in the appeal. At that time the Court asked McGinnis’ counsel whether a pro se motion "raised at the last second" provided the circuit court with an opportunity to rule on the issue and, thus, preserve it for appeal. See , e.g. , Commonwealth v. Bass , 292 Va. 19, 26, 786 S.E.2d 165 (2016) (). Counsel conceded that had the circuit court not ruled on the motion before it lost jurisdiction over the case, the appeal likely would be procedurally barred. However, counsel asserted that because the circuit court "very specifically took it upon itself to review the motion" and enter an order reflecting that it had in fact reviewed it, the contemporaneous objection rule was satisfied.
The Court of Appeals then asked counsel to address the significance of McGinnis having been "represented by counsel throughout the entire time in the trial court," and, thus, "he was never pro se ." McGinnis’ counsel, while conceding that McGinnis was "technically represented by counsel," contended that the filing of the motion pro se "does not matter in this case." McGinnis’ counsel contended that Code § 8.01-271.1 provides a safe harbor in that "[i]f a pleading, written motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant." Counsel contended that the first notice he had that the motion was not signed by trial counsel was when the Court of Appeals advised the parties to be prepared to address the issue. Counsel maintained that by seeking to sign the order in both the circuit court and by the motion to enlarge the record in the Court of Appeals, he had acted promptly to correct trial counsel’s failure to sign the motion.
Addressing the procedural issue in its opinion, the Court of Appeals relied upon our decision in Shipe v. Hunter , 280 Va. 480, 484, 699 S.E.2d 519 (2010), for the principle that a represented party generally is not permitted to file pro se pleadings. The Court of Appeals further relied upon the provision in our Rule 1:4(c) that "[c]ounsel or an unrepresented party who files a pleading shall sign it," finding that the use of the disjunctive "or" indicated that represented parties were not authorized to sign pleadings. Similarly, the Court of Appeals noted that our Rule 1:5(c) makes reference to unrepresented parties being permitted to file pleadings.
The Court of Appeals opined that "just because the circuit court efficiently ruled on appellant's Motion does not somehow validate an improperly executed motion so that it then preserves for appeal any arguments raised in that Motion." Additionally, the Court of Appeals opined that "we do not think the General Assembly intended for Code § 8.01-271.1 to permit counsel to remedy a signature defect by finally signing a pleading long after the case is on appeal to a different court — and no longer within the circuit court's jurisdiction." Accordingly, the Court of Appeals held that McGinnis’ assignment of error was not preserved for appeal under Rule 5A:18 and affirmed McGinnis’ convictions.
We begin our analysis of this issue by addressing the Court of Appeals’ application of Shipe . Shipe is the most recent in a series of cases in which we have addressed the efficacy of a pleading "signed only by a person ... who is not licensed to practice law in Virginia." 280 Va. at 483, 699 S.E.2d 519 ; see also , e.g. , Aguilera v. Christian , 280 Va. 486, 699 S.E.2d 517 (2010) ; Kone v. Wilson , 272 Va. 59, 630 S.E.2d 744 (2006) ; Nerri v....
To continue reading
Request your trial
-
Groffel v. Commonwealth
... ... 922(g) are inapposite to application of Code 18.2-308.1:4. The appellant also relies on the principle that if the statutory language at issue can be read to impart two reasonable and contradictory interpretations, a court should construe the statute in the accuseds favor. See McGinnis v. Commonwealth , 296 Va. 489, 504, 821 S.E.2d 700 (2018). However, this rule, known as the " rule of lenity, " "does not permit a[n appellant] to benefit from an unreasonably restrictive interpretation of the statute." Id. (quoting Blake v. Commonwealth , 288 Va. 375, 386, 764 S.E.2d 105 ... ...
-
Ali v. Commonwealth
... ... We assume without deciding that this period is attributable to the Commonwealth in the ordinary course of the administration of justice. See McGinnis v. Commonwealth , 296 Va. 489, 501, 821 S.E.2d 700 (2018). 9 872 S.E.2d 673 The subsequent time period involves the second continuance of the preliminary hearing, from January 28 to February 26, 2020, a period of twenty-nine days. The record reflects that the appellant's attorney requested a ... ...
-
Haba v. Commonwealth
... ... Additionally, in the context of the crime, the reasonable expectation of privacy must exist at the time of the gravamen of the offense, when the image was created. See generally McGinnis v. Commonwealth , 296 Va. 489, 507, 821 S.E.2d 700 (2018) (holding that the requisite intent must exist at the time that the defendant commits the "gravamen of the offense"); Groffel v. Commonwealth , 70 Va. App. 681, 689, 831 S.E.2d 503 (2019) (noting that the gravamen of an offense is its ... ...
-
Butcher v. Commonwealth
... ... Belmont Glen Homeowners Assn , 297 Va. 714, 729 n.7, 831 S.E.2d 662 (2019) ; Henderson v. Cook , 297 Va. 699, 710, 831 S.E.2d 717 (2019) ; Ferguson Enters., Inc. v. F.H. Furr Plumbing, Heating & Air Conditioning, Inc. , 297 Va. 539, 551, 830 S.E.2d 917 (2019) ; McGinnis v. Commonwealth , 296 Va. 489, 501, 821 S.E.2d 700 (2018) ; Smith v. Commonwealth , 296 Va. 450, 464, 821 S.E.2d 543 (2018) (Kelsey, J., concurring); George Mason Univ. v. Malik , 296 Va. 289, 295, 819 S.E.2d 420 (2018) ; RECP IV WG Land Invrs LLC v. Capital One Bank (USA), N.A. , 295 Va ... ...