Brooks v. Commonwealth

739 S.E.2d 224, 61 Va. App. 576, 2013 WL 1195627, 2013 Va. App. LEXIS 99

• Court: Court of Appeals of Virginia
• Decided: March 26, 2013
• Docket: Record No. 2708-10-1
• Status: Published

Opinions

PETTY, J., with whom FRANK and HUMPHREYS, JJ, join,

concurring.

Rule 5A:12(c)(l) requires that “[a]n exact reference to the pages of the transcript, written statement of facts, or record where the alleged error has been preserved in the trial court ... shall be included with each assignment of error.” (Emphasis added). In Brooks’s replacement petition for appeal, he included two assignments of error. For his first assignment of error, that “the trial court erred when it did not suppress the evidence obtained from the search of the vehicle,” Brooks cited to the portion of the transcript containing the entire hearing on the motion to suppress as his reference to where the alleged error was preserved below. Likewise, Brooks cited the portion of the transcript containing the entire trial, including the arraignment, for his second assignment of error, that “the trial court erred when it found the circumstantial evidence sufficient to convict [him] of possession of the cocaine.”

In order to ascertain how “exact” a petitioner’s reference must be to comply with Rule 5A: 12(c)(1), I believe it to be helpful to restate the reason behind requiring an “exact” reference in the first place.⁹ Under Rule 5A:18, “[n]o ruling of the trial court ... will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice.”

“The laudatory purpose behind Rule 5A:18 ... is to require that objections be promptly brought to the attention of the trial court with sufficient specificity that the alleged error can be dealt with and timely addressed and corrected when necessary. The rules promote orderly and efficient justice and are to be strictly enforced except where the error has resulted in manifest injustice.”

Redman v. Commonwealth, 25 Va.App. 215, 220, 487 S.E.2d 269, 272 (1997) (omission in original) (quoting Brown v. Commonwealth, 8 Va.App. 126, 131, 380 S.E.2d 8, 10 (1989)). Furthermore, Rule 5A:18 “places the parties on notice that they must give the trial court the first opportunity to rule on disputed evidentiary and procedural questions. The purpose of this rule is to allow correction of an error if possible during the trial, thereby avoiding the necessity of mistrials and reversals.” Gardner v. Commonwealth, 3 Va.App. 418, 423, 350 S.E.2d 229, 232 (1986).

The role of an appellate court is to review alleged errors by the court below, and the intent behind the requirement for an “exact reference to the pages of the transcript ... where the alleged error has been preserved in the trial court ... from which the appeal is taken,” Rule 5A:12(c)(l), is to efficiently put this Court on notice of where the party satisfied Rule 5A:18 without requiring that we engage in what would be akin to a scavenger hunt to find it. Furthermore, compliance with the Rule enables this Court quickly to identify the argument of the appellant at the trial level and the ultimate ruling made in the court below.

Satisfying the requirement of Rule 5A:12(c)(l) to provide an exact reference in the record where the alleged error was preserved is not an onerous burden and can be met by simply citing the page(s) of the record where the objection or motion below was made and the grounds stated. It is clear that Brooks has not done so in this case. By citing the entire transcript of the proceedings on the motion to suppress and the trial below, Brooks attempts to circumvent the obvious purpose behind the Rule. While his broad reference necessarily encompasses his specific objections and the trial court’s rulings, it also includes many pages of testimony that contain neither a part of any allegation by Brooks of potential error by the trial court nor Brooks’s supporting legal theory. Thus, instead of enabling this Court to readily and efficiently identify the points at which he stated his legal position to the trial court, Brooks would require us to search through the entire proceedings below to identify such points. Indeed, if such broad references were sufficient, the Rule would be superfluous.

Rule 5A:12(c)(l)(ii) requires, “If the assignments of error are insufficient or otherwise fail to comply with the requirements of this Rule, the petition for appeal shall be dismissed.” As I explain in Chatman v. Commonwealth, 61 Va.App. 618, 739 S.E.2d 245, 2013 WL 1195616 (2013) (this day decided) (en bane) (Petty, J., dissenting), I believe that the amended mandatory dismissal language of Rule 5A:12(c)(l), together with the Supreme Court’s recent directive in Davis, requires us to dismiss a petition for appeal containing assignments of error that fail to comply with the requirements of Rule 5A:12(c)(l). Brooks’s replacement petition for appeal in this case contained assignments of error that failed to comply with a mandatory requirement of Rule 5A:12(c)(l). Thus, under the Supreme Court’s direction, Brooks’s failure to comply with the Rule’s requirements “deprives this Court of its active jurisdiction to consider the appeal,” Davis, 282 Va. at 339, 717 S.E.2d at 796-97, and requires dismissal of the appeal, see Rule 5A:12(c)(l)(ii).¹⁰

Because Brooks failed to file a petition for appeal that complied with the requirements of Rule 5A:12(c)(l), I would vacate the order granting his petition and dismiss his appeal.¹¹

9 . I recognize that appellate courts must have some latitude in defining the term "exact” to ensure that slightly overbroad or erroneous page references do not result in unwarranted dismissals. Regardless of how liberally one might construe the term, however, in the context of this case, the reference to the entire hearing or trial transcript is inexact.

10 . I am not unsympathetic with the majority's observation that Rule 5A:12 does not seem to advance the stated intent of the Appellate Rules Advisory Committee, which is to make the rules more fair, efficient, and user friendly. However, rather than apply a strained reading of the Rule to accomplish that goal, I believe that the better course is simply to amend the Rules.

11 . Of course, as I stated in Chatman, this jurisdictional requirement may be waived and the failure to comply with Rule 5A:12 renders a resulting judgment merely voidable, not void. Chatman, 61 Va.App. at 627 n. 4, 739 S.E.2d at 249 n. 4. Further, I agree that Brooks has the right to move this Court for leave to pursue a delayed appeal, pursuant to Code § 19.2-321.1.