Smith v. Commonwealth Of Va.

• Decision Date: 15 June 2010
• Docket Number: Record No. 0422-09-1.
• Citation: 56 Va.App. 351,693 S.E.2d 765
• Parties: David SMITHv.COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

56 Va.App. 351
693 S.E.2d 765

David SMITH
v.
COMMONWEALTH of Virginia.

Record No. 0422-09-1.

Court of Appeals of Virginia,
Richmond.

June 15, 2010.

693 S.E.2d 766

S. Jane Chittom, Appellate Defender (Office of the Appellate Defender, on briefs), for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.

Present: FRANK, HUMPHREYS and PETTY, JJ.

HUMPHREYS, Judge. BACKGROUND

Following the trial court's denial of his motion to suppress,¹ David Smith (“Smith”) entered into an agreement to plead guilty to abduction and forcible sodomy on July 24, 2008. As part of that agreement, Smith reserved the right to appeal the trial court's denial of his motion. Smith timely filed both his notice of appeal and petition for appeal, but failed to file the transcript from his suppression hearing in the trial court within sixty days after entry of final judgment, as required by Rule 5A:8. Consequently, the transcript for Smith's suppression hearing is not properly before this Court.

In his petition for appeal, Smith argued that the proper remedy for this Court to apply under these circumstances was to dismiss the appeal for failure to file an indispensable transcript. In fact, before Smith's petition for appeal was granted, he filed a separate motion to dismiss his own appeal on those grounds. Smith argued that, absent the suppression-hearing transcript, this Court lacked jurisdiction to decide the merits of his appeal. A three-judge panel of this Court granted Smith's petition for appeal, held his motion to dismiss in abeyance, and instructed the parties to brief whether the appropriate remedy for the failure to timely file an indispensable transcript is to deny the petition for appeal or dismiss the appeal.

In response, Smith argues that the proper remedy for a failure to file an indispensable transcript is to dismiss the appeal while the Commonwealth contends that the failure to provide a sufficient record should simply result in the denial of a petition for appeal. Given our Supreme Court's holding in Jay v. Commonwealth, 275 Va. 510, 659 S.E.2d 311 (2008), we hold that Smith's failure to comply with the provisions of Rule 5A:8 is a violation of a non-jurisdictional, though mandatory requirement of the Rules governing the processing of appeals in this Court. Thus, Smith's failure to present an adequate record sufficient to review the merits of the issues and arguments he presents on brief constitutes a waiver of his question presented and supporting argument. Accordingly, we deny Smith's motion to dismiss and affirm the decision of the trial court on that basis.

ANALYSIS

At the onset, we note that this appeal is more than a bit peculiar in light of the fact

693 S.E.2d 767

that Smith simultaneously filed in this Court both a petition to appeal his convictions for abduction and forcible sodomy and a motion to dismiss that very appeal. Smith asserts that he did so in order to attempt to avail himself of the provisions of Code § 19.2-321.1. He argues that, if applicable, Code § 19.2-321.1 may allow him to pursue a delayed appeal and, thus, overcome his failure to file the transcript of his suppression hearing as part of the trial court record, which he concedes is indispensable to our resolution of the merits of his appeal.²

Prior to its decision in Jay, both our Supreme Court and this Court have historically dismissed appeals when the mandatory requirements of the Rules have not been adhered to, including those cases in which a transcript, indispensable to the resolution of the issue, had not been filed in the trial court. See Fearon v. Commonwealth, 211 Va. 256, 176 S.E.2d 921 (1970); Crum v. Udy, 206 Va. 880, 146 S.E.2d 878 (1966); Smith v. Commonwealth, 32 Va.App. 766, 531 S.E.2d 11 (2000); Price v. Price, 17 Va.App. 105, 435 S.E.2d 652 (1993); Turner v. Commonwealth, 2 Va.App. 96, 341 S.E.2d 400 (1986). In our view, this practice of dismissing, rather than denying, non-compliant petitions for appeal has always been problematic, since the very nature of the petition process mandated by statute contemplates that unless the petition for appeal is granted, there is no need to act on it in any other way than simply denying the petition. It is certainly true that once a petition for appeal or for certiorari has been granted, and in those cases where a petition is unnecessary because an appeal lies as a matter of right, appeals are almost invariably dismissed when an appellate court lacks jurisdiction over the subject matter or the parties. However, in other jurisdictions, the converse is not necessarily true, and the practice of dismissing appeals on non-jurisdictional grounds is not at all unusual among our sister appellate courts.³ Nevertheless, our Supreme Court adopted a different position in Jay, and its holding in this regard is both final and binding on this Court.

The holding of Jay could hardly be clearer, “[b]y dismissing rather than denying the appeals, the Court of Appeals rendered the requirements of Rule 5A:20(e) jurisdictional.” 275 Va. at 517, 659 S.E.2d at 315 (emphasis in original).⁴ While it is true that Jay

693 S.E.2d 768

specifically refers to Rule 5A:20(e), if the term “jurisdictional” has any consistent meaning, we see no rational reason why this principle should not also apply to Rule 5A:8.⁵ Jay commands that we not dismiss an appeal except on the grounds that this Court lacks jurisdiction, and thus, the resolution of the issue before us turns on the meaning of the term “jurisdictional,” as used in Jay.

“Jurisdiction is a term which can engender much confusion because it encompasses a variety of separate and distinct legal concepts.” Porter v. Commonwealth, 276 Va. 203, 228, 661 S.E.2d 415, 426 (2008). Undeniably, “ ‘[j]urisdiction is a word of many, too many, meanings.’ ” Ghameshlouy v. Commonwealth, 279 Va. 379, 388, 689 S.E.2d 698, 702 (2010) (quoting Ghameshlouy v. Commonwealth, 54 Va.App. 47, 57, 675 S.E.2d 854, 859 (2009) (Haley, J. dissenting)). That said, “[c]ourts cannot take or grant jurisdiction where the legislature or a constitution has not given it.” Swalef v. Anderson, 50 Va.App. 100, 106 n. 4, 646 S.E.2d 458, 461 n. 4 (2007) (emphasis added). See also Bd. of Supervisors v. Bd. of Zoning Appeals, 271 Va. 336, 344, 626 S.E.2d 374, 379 (2006); Humphreys v. Commonwealth, 186 Va. 765, 772-73, 43 S.E.2d 890, 894 (1947); accord Morrison v. Bestler, 239 Va. 166, 169, 387 S.E.2d 753, 755, (1990). It follows then that a rule of court cannot convey or limit jurisdiction.⁶

Indeed, a court refusing to exercise its jurisdiction or erroneously limiting its jurisdiction, precludes the parties from being able to litigate an issue as surely as if the court was without jurisdiction.

Although a court cannot confer jurisdiction upon itself, it does have the power to determine whether it has jurisdiction.

Gibson v. Gibson, 5 Va.App. 426, 433, 364 S.E.2d 518, 522 (1988) (emphasis added).

The appellate courts of the Commonwealth are not alone in promulgating confusing jurisprudence on this issue. In Kontrick v. Ryan, 540 U.S. 443, 453, 124 S.Ct. 906, 914, 157 L.Ed.2d 867 (2004), the United States Supreme Court recognized that it has created similar confusion in the federal arena, noting that it had been “less than meticulous” in its use of the term “jurisdictional” to describe timeliness requirements. The Supreme Court then observed that “[i]t is axiomatic that court-prescribed rules of practice and procedure, as opposed to statutory time limits, do not create or withdraw ... jurisdiction.” Id. (emphasis added). Again in Bowles v. Russell, 551 U.S. 205, 210-12, 127 S.Ct. 2360, 2364-65, 168 L.Ed.2d 96 (2007), the Supreme Court noted that

693 S.E.2d 769

[a]lthough several of our recent decisions have undertaken to clarify the distinction between claims-processing rules and jurisdictional rules, none of them calls into question our longstanding treatment of statutory time limits for taking an appeal as jurisdictional. Indeed, those decisions have also recognized the jurisdictional significance of the fact that a time limitation is set forth in a statute.

(Emphasis added). In other words, the term “jurisdiction” refers to mandatory requirements prescribed by constitution or statute as a prerequisite to a court taking a case for resolution. What the United States Supreme Court characterizes as “claim-processing” requirements relate to those non-jurisdictional, but nonetheless mandatory, “procedural rules adopted by the Court for the orderly transaction of its business” that are “ not jurisdictional.” Kontrick, 540 U.S. at 454, 124 S.Ct. at 914 (quoting Schacht v. United States, 398 U.S. 58, 64, 90 S.Ct. 1555, 1559, 26 L.Ed.2d 44 (1970)) (emphasis added).

This is precisely the situation represented in this case. No rule of court actually conveys, expands or restricts the “jurisdiction” of the courts of the Commonwealth. The Rules of the Supreme Court of Virginia are promulgated under the statutory authority of that Court to “prescribe the forms of writs and make general regulations for the practice in all courts of the Commonwealth; and [ ] prepare a system of rules of practice and a system of pleading and the forms of process.” Code § 8.01-3. Perhaps our Supreme Court will at some point elect to bring the same level of clarity to the term “jurisdiction” that the Supreme Court of the United States has in the federal arena in Kontrick, but in the meantime, after engaging in the exercise our Supreme Court referred to in Ghameshlouy as “plumb[ing] the murky depths of the sea of ‘jurisdiction,’ ” 279 Va. at 388, 689 S.E.2d at 702, we hold Smith's failure to file the transcript from his suppression hearing was a violation of a non-jurisdictional, though nonetheless mandatory, requirement of a rule of court.

Here, the flavor of “jurisdiction” that the dissent finds is implicated by Rule 5A:8 is what it describes as “authority jurisdiction.”...