Winslow v. Commonwealth, Record No. 2113–12–1.

• Decision Date: 12 November 2013
• Docket Number: Record No. 2113–12–1.
• Citation: 62 Va.App. 539,749 S.E.2d 563
• Parties: Kerry Lee WINSLOW v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

62 Va.App. 539

749 S.E.2d 563

Kerry Lee WINSLOW

v.COMMONWEALTH of Virginia.

Record No. 2113–12–1.

Court of Appeals of Virginia,

Richmond.

Nov. 12, 2013.

Barrett R. Richardson (Richardson and Rosenberg, LLC, Portsmouth, on brief), for appellant.

Leah A. Darron, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: FELTON, C.J., KELSEY, J. and BUMGARDNER, Senior Judge.

KELSEY, Judge.

In the trial court, Kerry Lee Winslow pled guilty to charges of grand larceny of a firearm and possession of a firearm by a convicted felon. On appeal, Winslow argues for the first time that the trial court's acceptance of his guilty plea violated Rule 3A:8(c)(2)'s requirement that the plea agreement “be reduced to writing” and signed by the parties. We affirm his convictions.

I.

Midway through his jury trial, Winslow asked the trial court for a brief recess for the purpose of negotiating a possible plea agreement. The court agreed to do so, and the parties reached an oral agreement calling for guilty pleas to both charges, accompanied by stipulated sentences. In open court, the parties recited into the record the specific terms and conditions of the agreement. The trial court conducted an extensive colloquy with Winslow to confirm that he understood the agreement and had entered into it freely, knowingly, and voluntarily. The court then accepted the plea agreement, entered final judgment, and imposed the agreed-upon sentences. A court reporter was present during the entire proceeding and transcribed verbatim the plea agreement of the parties and the colloquy with the trial court. At no point in the trial court proceedings did Winslow object to his convictions on the ground that the trial court accepted his plea agreement in violation of Rule 3A:8(c)(2).

II.

On appeal, Winslow argues that his plea agreement violated Rule 3A:8(c)(2), which requires that plea agreements “be reduced to writing” and signed by the parties. This violation, Winslow reasons, rendered his conviction order “void ab initio ”—thus relieving him of his obligation to raise the issue in the trial court. Appellant's Br. at 17. Even if the violation does not rise to that magnitude, Winslow contends that the ends-of-justice exception to Rule 5A:18 should permit him to make his objection to his plea agreement for the first time on appeal. We disagree with both assertions.

A. Void Ab Initio vs. Voidable

In this case, as in most, whether an alleged error by a trial court renders its order void ab initio or merely voidable turns on the distinction “between a court lacking jurisdiction to act upon a matter and the court, while properly having jurisdiction, nonetheless erring in its judgment.” Kelley v. Stamos, 285 Va. 68, 75, 737 S.E.2d 218, 221–22 (2013).¹ An order void ab initio is “without effect from the moment it came into existence,” id., and can be attacked “by all persons, anywhere, at any time, or in any manner,” Wright v. Commonwealth, 52 Va.App. 690, 704, 667 S.E.2d 787, 794 (2008) ( en banc ) (quoting Singh v. Mooney, 261 Va. 48, 51–52, 541 S.E.2d 549, 551 (2001)). Deeming an order void ab initio effectively sidelines procedural default principles, including Rule 5A:18's requirement that arguments on appeal seeking to overturn a trial court order must first be presented and ruled upon by the trial court. See, e.g., Gheorghiu v. Commonwealth, 280 Va. 678, 689, 701 S.E.2d 407, 414 (2010) (describing “a conviction based on a void sentence” as one of the “limited circumstances” in which the ends-of-justice exception is applied); Gordon v. Commonwealth, 61 Va.App. 682, 685–86, 739 S.E.2d 276, 278 (2013) (applying the ends-of-justice exception to an order that was void ab initio ).

A violation of Rule 3A:8(c)(2) procedures does not undermine the trial court's subject-matter jurisdiction. A trial court's power to hear a criminal case comes not from the Rules of Court but from the Virginia Constitution and the Acts of Assembly.² Judicial power, after all, derives from “the sovereign authority which organizes the court,” Thacker v. Hubard, 122 Va. 379, 386, 94 S.E. 929, 930 (1918) (quoting Cooper v. Reynolds, 10 Wall. 308, 77 U.S. 308, 316, 19 L.Ed. 931 (1870)), not from the court itself. Rule 3A:8(c)(2) merely imposes procedural requirements on the trial court's acceptance of a guilty plea. See Hairston v. Commonwealth, 16 Va.App. 941, 945, 434 S.E.2d 350, 353 (1993), cited with approval in Morrissey v. Va. State Bar, 248 Va. 334, 341, 448 S.E.2d 615, 619 (1994).

In other words, the formalities required by Rule 3A:8(c)(2) have nothing to do with the judicial power of the court, only the proper exercise of the power it already possesses. See United States v. Timmreck, 441 U.S. 780, 783, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979) (holding a violation of Fed.R.Crim.P. 11, governing guilty pleas, “is neither constitutional nor jurisdictional”); see also Gardner v. Warden, 222 Va. 491, 493 n. *, 281 S.E.2d 876, 877 n. * (1981) (stating that Rule 3A:11, which was renumbered as Rule 3A:8 in 1984, “is substantially equivalent to Fed.R.Crim.P. 11”). ³ “This distinction guards against the faux elevation of a court's failure to comply with the requirements for exercising its authority to the same level of gravity as a lack of subject matter jurisdiction.” De Avies v. De Avies, 42 Va.App. 342, 345–46, 592 S.E.2d 351, 352 (2004) ( en banc ) (internal quotation marks omitted). “In this sense, a trial court has ‘jurisdiction to err’ just as an appellate court has jurisdiction to correct such errors.” Id. at 346, 592 S.E.2d at 352 (quoting Parrish v. Jessee, 250 Va. 514, 521, 464 S.E.2d 141, 146 (1995)).

In short, even if the trial court violated Rule 3A:8(c)(2) by accepting Winslow's plea agreement without the required formalities, that error would not render the conviction order void ab initio. It might render the order voidable on direct appeal, but only if Winslow complied with the procedural default principles applicable to appellate review.

B. Rule 5A:18—Ends of Justice

Winslow concedes he did not challenge in the trial court either his plea agreement or the conviction order based upon it. That should not matter, he contends, because the alleged violation of Rule 3A:8(c)(2) was serious enough to trigger the ends-of-justice exception to Rule 5A:18.⁴ We disagree.

The ends-of-justice doctrine is “a narrow exception that should be used sparingly.” Alford v. Commonwealth, 56 Va.App. 706, 710, 696 S.E.2d 266, 268 (2010) (quoting Brittle v. Commonwealth, 54 Va.App. 505, 512, 680 S.E.2d 335, 339 (2009)). “It is never enough for the defendant to merely assert a winning argument on the merits—for if that were enough procedural default ‘would never apply, except when it does not matter.’ ” Id. (quoting Delaney v. Commonwealth, 55 Va.App. 64, 69, 683 S.E.2d 834, 836 (2009)). Taken to its logical conclusion, such an approach would mean that only losing arguments could be waived and “every issue would be subject to appellate review regardless of whether the issue was properly preserved.” Id. (quoting Brittle, 54 Va.App. at 513, 680 S.E.2d at 339).

To prevent the exception from swallowing the rule, Virginia courts applying the ends-of-justice exception require a defendant to present not only a winning argument on appeal but also one demonstrating that the trial court's error results in a “grave injustice” or a wholly inexcusable “denial of essential rights.” Brittle, 54 Va.App. at 513, 680 S.E.2d at 339 (internal quotation marks omitted). In criminal cases, this usually requires a showing that the defendant was “convicted for conduct that was not a criminal offense or the record must affirmatively prove that an element of the offense did not occur.” Id. (internal quotation marks omitted). Winslow's arguments in this case fall far short of meeting this standard.

To begin with, we are not at all confident that the court reporter's verbatim transcription of the terms of the plea agreement violated Rule 3A:8(c)(2)'s requirement that the agreement “be reduced to writing.” ⁵ We need not decide the point, however. The only clear violation of Rule 3A:8(c) appears to be the absence of signatures, a point Winslow mentions only briefly. And neither of these irregularities, considered together or separately, demonstrates that Winslow was convicted of a non-existent crime. Nor do they suggest, much less affirmatively prove, his innocence.

To be sure, Winslow does not claim that the transcript inaccurately recorded the terms of his plea agreement, that his conviction order in any way deviated from the agreement, or that his plea was involuntary or even ill-advised. His position on appeal, therefore, could not survive the general admonition that “[e]rrors, defects, irregularities or variances that do not affect substantive rights”—even when properly preserved for appellate review—“shall not constitute reversible error.” Rule 3A:2(a). See generally Ray v. Commonwealth, 55 Va.App. 647, 651 n. 2, 688 S.E.2d 879, 881 n. 2 (2010); Kirby v. Commonwealth, 50 Va.App. 691, 698–99, 653 S.E.2d 600, 603–04 (2007). All the more, his assertion of error could not constitute the kind of grave, inexcusable injustice contemplated by the ends-of-justice exception to Rule 5A:18.⁶

III.

Because Winslow did not assert in the trial court that Rule 3A:8(c)(2) precluded the court from accepting his plea agreement and issuing a conviction order based upon it, he cannot raise this assertion for the first time on appeal. The conviction order was not void ab initio, and the ends-of-justice exception does not excuse Winslow's procedural default.

Affirmed.

1. Judicial orders can also be declared void ab initio for reasons other than lack of subject-matter jurisdiction. See, e.g., Kelley, 285 Va. at 75–78, 737 S.E.2d at 221–23;Wright v. Commonwealth, 52 Va.App. 690, 704, 667 S.E.2d 787, 793–94 (2008) ( en banc ). But none of these reasons are implicated in this...