Amin v. County of Henrico

• Court: Supreme Court of Virginia
• Decided: October 31, 2013
• Docket: 122035
• Status: Published

Opinion

Present: All the Justices

TARIQ RASHAD AMIN

v. Record No. 122035 OPINION BY JUSTICE DONALD W. LEMONS COUNTY OF HENRICO October 31, 2013

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether the Court of Appeals

of Virginia erred in holding that Rule 5A:12 prevented it from

addressing whether the circuit court's order convicting Tariq

Rashad Amin ("Amin") was void ab initio.

I. Facts and Proceedings Below

Amin was convicted of carrying a concealed weapon in

violation of "Henrico County Ordinance 22-2 incorporating

Virginia Code Section 18.2-308." He appealed his conviction

to the Court of Appeals of Virginia ("Court of Appeals"). In

his petition for appeal he included one assignment of error,

which stated, "The trial court erred in denying the motion to

suppress." The Court of Appeals denied the petition for

appeal.

Amin filed a petition for rehearing by a three-judge

panel. His petition included one assignment of error, which

stated, "The Court erred in holding that the trial court did

not err in denying the motion to suppress." The Court of

Appeals granted Amin's petition for rehearing. Amin then

filed his "Appellant Designation of the Appendix and Assignments of Error." In this pleading, Amin included two

assignments of error. He kept his original assignment of

error challenging the denial of the motion to suppress, but

also added an additional assignment of error, which stated,

"That the conviction is void as a matter of law as there

exists no Henrico County Ordinance 22-2 incorporating Virginia

Code Section 18.2-308."

The Court of Appeals issued a published opinion, Amin v.

County of Henrico, 61 Va. App. 67, 733 S.E.2d 661 (2012), in

which it affirmed Amin's conviction. In its opinion, the

Court of Appeals noted that Henrico County Ordinance 22-2 only

adopts and incorporates the provisions of Title 18.2, Chapter

7, Article 2, while the criminal act of carrying a concealed

weapon under Code § 18.2-308 is in Title 18.2, chapter 7,

Article 7. Id. at 73, 733 S.E.2d at 664 (emphasis added).

The Court of Appeals acknowledged that "[i]t is well

recognized that an order which is void ab initio is 'a

complete nullity and it may be impeached directly or

collaterally by all persons, anywhere, at any time, or in any

manner.'" Id. at 74, 733 S.E.2d at 664 (quoting Singh v.

Mooney, 261 Va. 48, 51-52, 541 S.E.2d 549, 551 (2001)).

However, the Court of Appeals held that because Amin had not

included the new assignment of error in his petition for

appeal, it could not address whether the conviction order was

2 void ab initio. Amin, 61 Va. App. at 73, 733 S.E.2d at 664.

The Court of Appeals explained that "an appellate court must

properly have acquired appellate jurisdiction itself before it

can hear a challenge to any lower court or agency's actions,"

and determined that because Amin did not comply with Rule

5A:12(c), the Court of Appeals could not address the issue.

Id. at 74-75, 733 S.E.2d at 665 (internal quotation marks

omitted).

Amin timely filed a petition for appeal in this Court,

and we awarded him an appeal on the following assignment of

error:

That the Court of Appeals erred in denying that the conviction is void as a matter of law as there exists no Henrico County Ordinance 22-2 incorporating Virginia Code Section 18.2-308 pursuant to the ends of justice exception of Rule 5A:18 by applying Rule 5A:12. Relief is requested here pursuant to Rule 5:25.

II. Analysis

A. Rule 5:17

We must first address whether Amin's assignment of error

to this Court is sufficient. Rule 5:17(c) requires that all

petitions for appeal filed in this Court list the specific

errors in the rulings below that the appellant challenges.

"When appeal is taken from a judgment of the Court of Appeals,

only assignments of error relating to assignments of error

3 presented in, and to actions taken by, the Court of Appeals

may be included in the petition for appeal to this Court."

Rule 5:17(c)(ii).

Although Amin's assignment of error could certainly have

been more artfully drafted, it is sufficient to assert that

the Court of Appeals erred by applying Rule 5A:12 and refusing

to address whether Amin's conviction was void ab initio as a

matter of law. Accordingly, we will now address the merits of

his appeal.

B. Standard of Review

We review questions of law de novo. See Stevens v.

Commonwealth, 283 Va. 296, 302, 720 S.E.2d 80, 82 (2012). "A

lower court's interpretation of the Rules of this Court, like

its interpretation of a statute, presents a question of law

that we review de novo." LaCava v. Commonwealth, 283 Va. 465,

469, 722 S.E.2d 838, 840 (2012) (citations omitted).

C. Discussion

Rule 5A:12(c)(1) sets out the requirements for petitions

for appeal filed in the Court of Appeals. It states in

relevant part:

(i) Effect of Failure to Assign Error. Only assignments of error assigned in the petition for appeal will be noticed by this Court. If the petition for appeal does not contain assignments of error, it shall be dismissed.

4 The Court of Appeals is correct that ordinarily when a

party fails to comply with Rule 5A:12, the Court of Appeals

may refuse to consider any assignment of error that is not

raised in a timely manner or not properly included in the

petition for appeal. However, the exception to that general

rule was articulated by this Court in Singh v. Mooney.

In Singh, we held that an order that is void ab initio

"may be impeached directly or collaterally by all persons,

anywhere, at any time, or in any manner." 261 Va. at 52, 541

S.E.2d at 551 (internal quotation marks omitted). We also

held that Rule 1:1, which limits the jurisdiction of a court

to twenty-one days after entry of the final order, does not

apply to an order which is void ab initio. Id. at 52, 541

S.E.2d at 551. The reason for that remedy is that an order

which is void ab initio is a "nullity," and is without effect

from the moment it comes into existence. Kelley v. Stamos,

285 Va. 68, 75, 737 S.E.2d 218, 221 (2013). Accordingly, the

Court of Appeals may not use a rule of court to supersede this

principle of law that implicates constitutional principles of

due process.

As vital as this principle of law is, the Court of

Appeals was correct in its holding that an appellate court

must have acquired appellate jurisdiction itself before it can

hear a challenge to a lower court or agency's actions,

5 including a challenge that a lower court's order is void ab

initio. Therefore, in order to be able to consider the merits

of Amin's argument on this point, the Court of Appeals must

have acquired appellate jurisdiction over the case.

A litigant's failure to include any sufficient

assignments of error in a petition for appeal can deprive this

Court of active jurisdiction to consider the appeal. Davis v.

Commonwealth, 282 Va. 339, 339-40, 717 S.E.2d 796, 796-97

(2011). Similarly, in Smith v. Commonwealth, 281 Va. 464,

468, 706 S.E.2d 889, 892 (2011), we held that "noncompliance

with the rule involving the timely filing of a petition for

appeal and including assignments of error in that petition

deprive the appellate court of active jurisdiction over the

appeal." If Amin's petition for appeal had been untimely, had

failed to include any assignments of error, or if the only

assignment of error had been insufficient to comply with Rule

5A:12, the Court of Appeals would have lacked active

jurisdiction and would have been required to dismiss the

petition for appeal.

In this case, however, Amin's petition for appeal

included one proper assignment of error. All the necessary

parties were present and the appeal had been timely filed and

granted. Consequently, the Court of Appeals had acquired

active jurisdiction over Amin's appeal. At that point, Amin

6 had the right to raise the issue whether his conviction order

was void ab initio. This issue may be advanced "directly or

collaterally by all persons, anywhere, at any time, or in any

manner," Singh, 261 Va. at 52, 541 S.E.2d at 551 (internal

quotation marks omitted). Accordingly, once the Court of

Appeals acquired appellate jurisdiction over Amin's appeal, it

was required to review the merits of Amin's argument that the

conviction order he was appealing was void ab initio.

III. Conclusion

We will reverse the Court of Appeal's holding that Rule

5A:12 barred it from considering Amin's argument that the

conviction order he was appealing was void ab initio. We

remand the matter to the Court of Appeals for a determination

of this question on the merits.

Reversed and remanded.

JUSTICE POWELL, dissenting.

The majority briefly discusses Amin’s assignment of error

before concluding that the Court of Appeals erred in not

reaching the merits of Amin’s claim that his conviction from

Henrico County for possession of a concealed weapon was void

ab initio. I respectfully disagree with the majority that

Amin’s assignment of error is sufficient to place his

7 substantive complaint before us. Therefore, for the following

reasons, I would dismiss his appeal.

“When appeal is taken from a judgment of the Court of

Appeals, 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.” Rule 5:17(c)(ii).

The purpose of assignments of error is to point out the errors with reasonable certainty in order to direct this [C]ourt and opposing counsel to the points on which appellant intends to ask a reversal of the judgment, and to limit discussion to these points. Without such assignments, appellee would be unable to prepare an effective brief in opposition to the granting of an appeal, to determine the material portions of the record to designate for printing, to assure himself of the correctness of the record while it is in the clerk’s office, or to file, in civil cases, assignments of cross-error. Harlow v. Commonwealth, 195 Va. 269, 271- 72, 77 S.E.2d 851, 853 (1953).

Yeatts v. Murray, 249 Va. 285, 290, 455 S.E.2d 18, 21 (1995).

Amin’s assignment of error is

That the Court of Appeals erred in denying that the conviction is void as a matter of law as there exists no Henrico County Ordinance 22-2 incorporating Virginia Code Section 18.2-308 pursuant to the ends of justice exception of Rule 5A:18 by applying Rule 5A:12. Relief is requested here pursuant to Rule 5:25.

8 Contrary to Amin’s assignment of error, the Court of

Appeals did not deny that his conviction was void. To the

contrary, the Court of Appeals did not address Amin’s argument

on the merits. Specifically, the Court of Appeals held that

it lacked “appellate jurisdiction” to consider the issue on

the merits because Amin failed to include an assignment of

error in his petition to the Court of Appeals that addressed

whether his conviction order was void ab initio. Regardless

of whether the Court of Appeals was correct, Amin’s assignment

of error to this Court does not assign error to the Court of

Appeals’ holding that it lacked jurisdiction but instead

assigns error that incorporates his substantive argument that

his conviction order was void ab initio. Thus, I do not

believe that Amin’s assignment of error is sufficient to

comply with Rule 5:17(c)(ii) to properly bring him before this

Court and I would dismiss his appeal.