VIRGINIA: In the Court of Appeals of Virginia on Tuesday the 21st day of September, 2021. PUBLISHED
Clifton Thomas Jacks, Appellant,
against Record No. 0833-20-3 Circuit Court No. CR20000285-00
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing En Banc
Before Chief Judge Decker, Judges Humphreys, Petty, Beales, Huff, O’Brien, Russell, AtLee, Malveaux, Athey, Fulton, Ortiz, Causey, Friedman, Chaney, Raphael and Lorish
On September 7, 2021 came the appellant, by counsel, and filed a petition requesting that the Court set
aside the judgment rendered herein on August 24, 2021, and grant a rehearing en banc on the issue(s) raised in
the petition.
On consideration whereof and pursuant to Rule 5A:35 of the Rules of the Supreme Court of Virginia,
the petition for rehearing en banc is granted and the appeal of those issues is reinstated on the docket of this
Court. The mandate previously entered herein is stayed pending the decision of the Court en banc.
The parties shall file briefs in compliance with the schedule set forth in Rule 5A:35(b). The appellant
shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously
rendered by the Court in this matter. An electronic version of each brief shall be filed with the Court and
served on opposing counsel. It is further ordered that the appellant shall file an electronic version of the
appendix previously filed in this case.1
A Copy,
Teste: A. John Vollino, Clerk
original order signed by a deputy clerk of the By: Court of Appeals of Virginia at the direction of the Court Deputy Clerk
1 The guidelines for filing electronic briefs and appendices can be found at www.courts.state.va.us/online/vaces/resources/guidelines.pdf. COURT OF APPEALS OF VIRGINIA
Present: Judges Huff, Malveaux and Senior Judge Annunziata PUBLISHED
Argued by videoconference
CLIFTON THOMAS JACKS OPINION BY v. Record No. 0833-20-3 JUDGE ROSEMARIE ANNUNZIATA AUGUST 24, 2021 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY Paul A. Dryer, Judge
Jonathan B. Tarris (Tarris Law, PLC, on brief), for appellant.
Matthew P. Dullaghan, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Clifton Thomas Jacks (appellant) appeals from a decision of the Circuit Court of
Rockbridge County (circuit court) denying the appeal of his conviction for driving under the
influence of alcohol (DUI). Appellant contends that the circuit court erred in finding that he did
not timely file his notice of appeal of his misdemeanor conviction of DUI in the General District
Court for Lexington/Rockbridge County. He argues that, although the notice of appeal was not
filed within ten days of the conviction as required by Code § 16.1-132, emergency orders entered
by the Supreme Court of Virginia pertaining to the COVID-19 pandemic effectively tolled the
filing requirement of Code § 16.1-132.1 The Commonwealth asserts, among other things, that
appellant waived this argument by failing to raise this issue in the circuit court and obtain a
1 Under Code § 16.1-132, “[a]ny person convicted in a district court of an offense not felonious shall have the right, at any time within ten days from such conviction, and whether or not such conviction was upon a plea of guilty, to appeal to the circuit court.” ruling thereon, as required by Rule 5A:18. We agree with the Commonwealth and affirm the
circuit court’s decision.
BACKGROUND
On March 16, 2020, appellant was convicted for DUI in the general district court. Both
appellant and his attorney were present at trial. The general district court sentenced appellant to
sixty days in jail, a fine of $500, and twelve months of probation. The general district court
suspended all the jail time and $250 of the fine. Appellant also was referred to the local alcohol
safety action program.
On the same day as appellant’s conviction, the Supreme Court of Virginia declared a
Judicial Emergency in Response to the COVID-19 Emergency and suspended all non-essential
court proceedings; the Court’s order, entered pursuant to the authority of Code § 17.1-330,
expressly “tolled and extended” all “deadlines.” See March 16, 2020, Order Declaring a Judicial
Emergency in Response to COVID-19 Emergency. The Court later extended its emergency
declaration to “all applicable deadlines, time schedules, and filing requirements,” and declared
that “case-related deadlines [we]re tolled.” See March 27 and April 22, 2020, Orders Extending
Declaration of Judicial Emergency. The tolling of “case-related deadlines” was extended by
further orders through July 19, 2020. See May 6, June 1, and June 22, 2020, Orders Modifying
and Extending Declaration of Judicial Emergency in Response to COVID-19 Emergency. By
order of July 8, 2020, the Court declared that beginning on July 20, 2020, there would be “no
further tolling of case-related deadlines.” See July 8, 2020, Order Extending Judicial Emergency
in Response to COVID-19 Emergency.
On June 3, 2020, appellant filed a notice of appeal of his March 16, 2020 DUI conviction
from the general district court to the circuit court. The general district court documents were
filed in the circuit court on June 10, 2020. The circuit court entered an order on June 16, 2020,
-2- denying the appeal and remanding the matter to the general district court. The circuit court
reasoned that the notice of appeal was filed “outside the 10 day period prescribed in [Code
§] 16.1-132[.]” Following the circuit court’s ruling, appellant did not assert that the decision was
erroneous for any reason, object to the ruling, or request the circuit court to reconsider its ruling.
Appellant timely noted an appeal of this ruling to this Court.
DISCUSSION
Appellant argues that the circuit court’s ruling was erroneous considering the Virginia
Supreme Court’s emergency orders tolling “all case-related deadlines” until July 19, 2020. He
maintains that the orders effectively extended the requirement in Code § 16.1-132 that he note
his appeal from the general district court within ten days of his conviction. The Commonwealth
asserts that appellant waived the argument he advances on appeal because he did not object to
the circuit court’s ruling in the court below. We agree.
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 this Court to attain the ends of justice.” “The purpose of this
contemporaneous objection requirement is to allow the trial court a fair opportunity to resolve
the issue at trial, thereby preventing unnecessary appeals and retrials.” Creamer v.
Commonwealth, 64 Va. App. 185, 195 (2015). To satisfy Rule 5A:18, an objection must “be
made . . . at a point in the proceeding when the trial court is in a position, not only to consider the
asserted error, but also to rectify the effect of the asserted error.” Maxwell v. Commonwealth,
287 Va. 258, 265 (2014) (quoting Scialdone v. Commonwealth, 279 Va. 422, 437 (2010)).
Specificity and timeliness undergird the contemporaneous-objection rule, animate its highly practical purpose, and allow the rule to resonate with simplicity: “Not just any objection will do. It must be both specific and timely — so that the trial judge would know the particular point being made in time to do something about it.” -3- Bethea v. Commonwealth, 297 Va. 730, 743 (2019) (quoting Dickerson v. Commonwealth, 58
Va. App. 351, 356 (2011)). If a party fails to timely and specifically object, he waives his
argument on appeal. Arrington v. Commonwealth, 53 Va. App. 635, 641 (2009).
To meet the Commonwealth’s arguments that the issue raised on appeal was procedurally
defaulted, at oral argument appellant asserted for the first time that this Court should apply Code
§ 8.01-384(A), which “contains an exception to the contemporaneous objection requirement.”
Commonwealth v. Amos, 287 Va. 301, 306 (2014). However, an argument presented for the
first time at oral argument will not be considered by this Court. Stokes v. Commonwealth, 61
Va. App. 388, 397 (2013) (citing Va. Dep’t of State Police v. Barton, 39 Va. App. 439, 447
(2002)).2 Further, appellant did not invoke an exception to Rule 5A:18 in his opening brief,
precluding this Court’s consideration of the issue raised on appeal. See id.3 In short, we agree
with the Commonwealth that appellant failed to preserve the issue for appellate review by
making a specific and timely objection, as required by Rule 5A:18.4
2 Under Rule 5A:20(e), this Court “is entitled to have the issues clearly defined and to be cited pertinent authority” in appellant’s brief, and unsupported assertions of a litigant that do not meet this requirement need not be considered. Bartley v. Commonwealth, 67 Va. App. 740, 744 (2017) (quoting Jones v. Commonwealth, 51 Va. App. 730, 734 (2008)). 3 On brief, appellant did not assert that either the good cause or ends of justice exception to Rule 5A:18 was applicable in this case, and this Court will not apply these exceptions sua sponte. Edwards v. Commonwealth, 41 Va. App. 752, 761 (2003) (en banc). “Rule 5A:20(e) requires that when an issue has not been preserved for appellate review, the opening brief shall state why the good cause and/or ends of justice exceptions to Rule 5A:18 are applicable.” Stokes, 61 Va. App. at 397. 4 The Commonwealth also contends that appellant’s brief does not comply with Rule 5A:20 and that he did not ensure that the appellate record was adequate for consideration of the issue on appeal. However, in light of our decision that the issue is waived by failure to comply with Rule 5A:18, we need not consider these contentions. See Commonwealth v. White, 293 Va. 411, 419 (2017) (recognizing that “judicial restraint dictates that we decide cases on the best and narrowest grounds available” (quoting Commonwealth v. Swann, 290 Va. 194, 196 (2015))).
-4- Nonetheless, we consider whether the dissent has properly applied the terms of Code
§ 8.01-384(A) in determining that appellant was excused from the contemporaneous objection
requirement, a review that implicates the use and the purpose served by the contemporaneous
objection rule under Virginia law, as well as the exceptions to the rule. Code § 8.01-384(A)
provides:
[f]ormal exceptions to rulings or orders of the court shall be unnecessary; but for all purposes for which an exception has heretofore been necessary, it shall be sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objections to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection shall not thereafter prejudice him on motion for a new trial or on appeal.
(Emphasis added).
The Virginia Supreme Court addressed the application of Code § 8.01-384(A) in Amos,
287 Va. at 305. In reviewing applicable precedents concerning Code § 8.01-384(A), the Court
noted, “The paucity of cases that have invoked the contemporaneous objection exception during
the past 40 years demonstrates that litigants are rarely precluded from making contemporaneous
objections to orders or rulings of the court.” Id. at 309. However, the Court found that the
“unusual circumstances” in that case “demonstrate[d] why an exception of th[is] nature [as
provided by the statute] is [appropriate and] warranted.” Id.
In Amos, it was undisputed that the actions of the trial court prevented the defendant
from presenting a contemporaneous objection. Id. at 308. As the Court observed, “Ms. Amos
was not a party. Rather, she was only a witness and consequently was not represented by
counsel. Following the trial judge’s ruling, she was immediately taken to jail [to serve a ten-day
sentence for contempt] without any further consideration by the court.” Id. at 309.
-5- The purpose of the requirement that a litigant make a contemporaneous objection is that
the objection be made at a time when the circuit court, in considering the objection, can take
appropriate action to correct the error. Scialdone, 279 Va. at 437; Maxwell, 287 Va. at 267.
Given the immediacy of summary contempt, it is crucial to afford the contemnor the opportunity
to object immediately when the contempt is pronounced. In that way, the trial court is “in
position not only to consider the asserted error, but also to rectify the effect of the asserted
error.” Johnson v. Raviotta, 264 Va. 27, 33 (2002). The crux of a case like Amos, where
application of the exception in Code § 8.01-384(A) was appropriate, is the immediate prejudicial
effect of the court’s claimed error and the absence of an opportunity for the court to rectify it
before the order of contempt is imposed.5
In the event the litigant is not given the opportunity to raise a contemporaneous objection
at the time an error was made by the court, Code § 8.01-384(A) provides that if a party “[had] no
opportunity to object to a ruling or order at the time it [was] made, the absence of an objection
shall not thereafter prejudice him . . . on appeal.” In light of the immediate prejudicial nature of
a summary contempt finding, nothing further can or need be done to preserve the issue for
appellate review.6
Code § 8.01-384(A) was addressed in Maxwell, decided by the Virginia Supreme Court
on the same day as Amos. In Maxwell, the Court considered both Maxwell’s appeal and the
5 Summary contempt is “immediate[ly] punish[ed.]” In re Oliver, 333 U.S. 257, 274-75 (1948). A contempt finding is effective upon oral pronouncement from the bench. See Petrosinelli v. People for the Ethical Treatment of Animals, Inc., 273 Va. 700, 709 (2007) (noting that a “court’s contempt power encompasses written orders as well as ‘oral orders, commands and directions of the court’” (quoting Robertson v. Commonwealth, 181 Va. 520, 537 (1943))). 6 As this Court observed, “Requiring a party to file a motion to reconsider in order to preserve an issue might be perfectly sensible in some, perhaps even most, contexts. The same cannot be said, however, with regard to summary contempt.” Amos v. Commonwealth, 61 Va. App. 730, 739 (2013), aff’d, 287 Va. 301 (2014).
-6- appeal of Vincent Rowe – two cases that presented different applications of the statute and found
that “the factual differences between the two cases dictate disparate dispositions.” Maxwell, 287
Va. at 265. The dispositions reached in the appeals in Maxwell and Amos, as well as in other
decisions in the Virginia appellate courts that have addressed Code § 8.01-384(A), show the
failure to make a contemporaneous objection involves a context specific examination. See, e.g.,
Campbell v. Commonwealth, 14 Va. App. 988, 996 (1992) (en banc) (Barrow, J., concurring)
(“[T]the lack of an ‘opportunity to object’ . . . relates to the reason why an objection was not
made at the time of the ruling.”).
The Virginia case law “requiring an issue to be presented to the court for determination
as a predicate for appellate review focuses on the actions of the litigant.” Amos, 287 Va. at 307;
see, e.g., Scialdone, 279 Va. at 437-39 (explaining that the purpose of Rule 5:25 is to afford the
trial court with an opportunity to rule intelligently on issues presented by a party and that under
the facts presented, the defendants satisfied such purpose by stating objections and grounds
therefor in a motion to stay); Brown v. Commonwealth, 279 Va. 210, 217-18 (2010) (concluding
Commonwealth made its position known to trial court, thus providing it with an opportunity to
rule on that position); George v. Commonwealth, 276 Va. 767, 773-74 (2008) (holding defendant
put court on sufficient notice of position); Weidman v. Babcock, 241 Va. 40, 44 (1991) (finding
plaintiffs preserved issues for appeal in hearing and motion to rehear); Jackson v. Chesapeake &
Ohio Ry. Co., 179 Va. 642, 651 (1942) (holding party must state objection and grounds in such a
manner that the trial judge can understand the question to be decided). Accordingly, the Court in
Amos found that
[w]hen failure to raise a contemporaneous objection or otherwise bring an objection to the court’s attention results from a party’s actions, the contemporaneous objection exception of Code § 8.01-384(A) does not apply, and the preservation issue will be decided under the provisions of Rule 5A:18 or Rule 5:25, and case law applying those rules. However, when a party is denied the -7- opportunity to raise a contemporaneous objection, the contemporaneous objection exception of Code § 8.01-384(A) applies.
Amos, 287 Va. at 308.
For example, in Maxwell, the error asserted was based on the trial court providing
answers to questions from a jury during its deliberations when, through no fault of their own, the
defendant and his attorney were absent from the courtroom. Maxwell, 287 Va. at 266. They
thus had neither knowledge of the court’s action at the time it happened nor an opportunity to
object to the court’s answering the questions as they were posed. Id. at 266-67. Although the
defendant learned of the trial court’s ex parte communication during jury deliberations, he did
not assert an objection until after the jury was discharged upon finding Maxwell guilty of
unlawful wounding. Id. at 262-63. In response to the Commonwealth’s contention that Rule
5A:18 barred Maxwell’s appeal, the Virginia Supreme Court found that Code § 8.01-384(A)
required consideration of Maxwell’s argument on appeal. Id. at 266. The Court emphasized that
Maxwell’s argument in the Court of Appeals was directed “not to the content of the circuit
court’s answers to the jury’s questions, but to the circuit court’s act of entertaining and
answering the jury’s questions when neither he nor his counsel were present.” Id. Because they
were absent from the courtroom as the court proceeded to answer the jury’s questions, Maxwell
and his counsel had no opportunity to object and give the court the opportunity to timely rectify
the error of communicating with the jury in their absence. Id. at 266-67. Given these
circumstances, the Court found Code § 8.01-384(A) applied and prevented Maxwell from being
prejudiced on appeal. Id. at 267.
Rowe’s appeal was from his conviction, in a jury trial, for grand larceny and grand
larceny with intent to sell. Id. at 263. During closing argument, the attorney for the
Commonwealth indicated that inferences could support a finding of guilt:
-8- That’s why they’re part of this case, that’s why they’re referred to as circumstantial evidence, and that possession – in order to eliminate this inference, if you feel it’s justified in th[is] case, what has to happen is some evidence has to be brought forth by the defense to eliminate it. And as you know at this point, the defense has offered no evidence.
Id. After two additional sentences, the Commonwealth concluded its closing argument. Id. at
264. Rowe’s counsel stated, “Actually, before I make my argument, there is a motion I would
like to make outside the presence of the jury.” Id. The circuit court responded, “We’ll deal with
it when the jury goes out to retire,” and Rowe’s attorney replied, “Very well.” Id. Accordingly,
after the jury left to begin deliberations, defense counsel made a motion for mistrial, which was
denied by the trial court and found procedurally defaulted under Rule 5A:18 by the Court of
Appeals on the ground the objection to the prosecutor’s closing statement was not timely made.
Id. On appeal, the Virginia Supreme Court declined to apply the exception under Code
§ 8.01-384(A) and affirmed the decision finding that Rowe’s counsel’s colloquy with the trial
court “makes it clear that he had the opportunity to make his objection known to the court” and
that he failed to take the action needed before the jury retired. Id. at 269.
Rowe’s counsel did not lack the opportunity to make his objection to the allegedly improper comments to the court. . . . Rowe’s counsel’s colloquy with the court makes it clear that he had the opportunity to make his objection known to the court and articulate more clearly the action he desired the court to take and that the action needed to be taken before the jury retired.
Nothing in the record supports a finding that Rowe had no opportunity to make a contemporaneous objection to the Commonwealth’s argument at a time and in a manner that would make it clear to the court the relief that Rowe sought [and in time for] . . . the court to take the corrective action sought.
Id.
In the case before us, the circuit court entered its order denying the appeal without
endorsement of counsel or prior notice. Rule 1:13 provides, in pertinent part, that “[d]rafts of
-9- orders and decrees must be endorsed by counsel of record, or reasonable notice of the time and
place of presenting such drafts together with copies thereof must be served . . . upon all counsel
of record who have not endorsed them.” However, “[c]ompliance with this Rule . . . may be
modified or dispensed with by the court in its discretion.” Rule 1:13. When dispensing with
endorsement or notice pursuant to Rule 1:13,
a better practice would be for a trial court to include a statement reflecting its decision to exercise its discretion, [but] in the absence of such a statement, we presume that a trial court exercised its discretion to dispense with the Rule’s requirements. Courts are presumed to act in accordance with the law and orders of the court are entitled to a presumption of regularity.
Napert v. Napert, 261 Va. 45, 47 (2001).7
As noted earlier, appellant did not raise in the circuit court the issue he now asserts on
appeal. However, an opportunity for the court to rectify the error clearly existed that appellant
did not timely act upon. While the Virginia Supreme Court’s emergency orders in 2020 placed
limitations on the operation of district and circuit courts across the Commonwealth, “[t]he
Judiciary of Virginia . . . remain[ed] open[.]” See May 6, 2020, Order Extending Declaration of
Judicial Emergency in Response to COVID-19 Emergency. Indeed, the Virginia Supreme Court
charged court clerks “with ensuring that their offices remain open and functions continue” during
the emergency. See June 1, 2020, Order Modifying and Extending Declaration of Judicial
Emergency in Response to COVID-19 Emergency. Therefore, nothing prevented appellant from
seeking a stay, modification, vacation, or reconsideration of the circuit court’s ruling pursuant to
Rule 1:1(a) so that he could ask the trial court to rectify its ex parte order on the ground that the
7 If the exception contained in Code § 8.01-384(A) were to apply in every instance where a circuit court exercises its discretion under Rule 1:13 to enter an order without notice or endorsement, the exception would effectively eviscerate the rule requiring contemporaneous objections as it pertains to such orders.
- 10 - Virginia Supreme Court’s emergency orders extended the time limit for noting an appeal under
Code § 16.1-132.
Although appellant did not have the opportunity to note an objection at the time the
circuit court denied his appeal of the lower court’s decision, he had the opportunity to challenge
and object to the circuit court’s decision in a manner that would have been considered timely
under Virginia law. See Rules 1:1(a) and 5A:18. For whatever reason, he chose not to do so.
Therefore, contrary to the conclusion of the dissent, we do not find that the Code
§ 8.01-384(A) exception to the contemporaneous objection rule is applicable under the
circumstances of this case, and we affirm the decision of the circuit court.
Affirmed.
- 11 - Huff, J., dissenting.
I respectfully dissent because statutory and case law authority provide that the
contemporaneous objection requirement is inapplicable in circumstances where a litigant has no
opportunity to object to a trial court’s ruling at the time the ruling is made. Moreover, given the
circumstances in this case, I disagree with the conclusion that finding appellant’s assignment of
error waived is the appropriate response for non-compliance with Rule 5A:20(e).
I begin with the merits to provide necessary context for analysis of the procedural issues
raised by this appeal. The trial court, sua sponte, denied appellant’s appeal from his general
district court conviction on the basis that the appeal was noted outside Code § 16.1-132’s
ordinary ten-day window. But the trial court’s denial order failed to consider the tolling effect
resulting from emergency orders of the Virginia Supreme Court.
Code § 17.1-330(D) grants the Virginia Supreme Court authority to declare a judicial
emergency allowing the Court to “suspend, toll, extend, or otherwise grant relief from deadlines,
time schedules, or filing requirements imposed by otherwise applicable statutes, rules, or court
orders in any court processes and proceedings, including all appellate court time limitations.”
On March 16, 2020, the Virginia Supreme Court did just that when it issued a Declaration of
Judicial Emergency stating, “it is hereby ORDERED that NON-ESSENTIAL,
NON-EMERGENCY court proceedings in all circuit and district courts be and hereby are
SUSPENDED and all deadlines are hereby tolled and extended, pursuant to Code
§ 17.1-330(D)[.]” March 16, 2020, Order Declaring a Judicial Emergency in Response to
COVID-19 Emergency (emphasis added).
As relevant to the filing dates of this case, the Court on May 6, 2020 entered a fourth
order extending the tolling provisions of its prior orders:
As provided in the First, Second, Third and Clarification Orders, for all cases in district and circuit courts the statutes of limitation - 12 - and all other case-related deadlines, excluding discovery deadlines, shall continue to be tolled during the ongoing Period of Judicial Emergency (now March 16, 2020, through June 7, 2020) pursuant to Va. Code § 17.1-330. . . .
May 6, 2020, Order Modifying and Extending Declaration of Judicial Emergency in Response to
COVID-19 Emergency (emphasis added).8
My interpretation of these orders’ plain meaning and intent is straightforward: when the
Virginia Supreme Court said “all deadlines” except discovery deadlines, it meant “all deadlines”
except discovery deadlines. Accordingly, Code § 16.1-132’s ten-day appeal window was a filing
“deadline” within the scope of the emergency orders’ broad tolling provisions.
Appellant was convicted in the general district court on March 16, 2020 (when the first
emergency order was issued) and noted his appeal on June 3, 2020 (while the fourth emergency
order’s tolling provisions were still operative). Thus, Code § 16.1-132’s ten-day deadline was
tolled from the time appellant was convicted through the time he noted his appeal, so his appeal
was timely and should not have been denied by the trial court.
The Commonwealth does not dispute any of this. Instead, it presents a litany of
procedural arguments and invites this Court to find appellant’s assignment of error waived. The
Commonwealth’s arguments to this end are three-fold: (1) it argues that appellant failed to
comply with Rule 5A:12(c)(1) and Rule 5A:20(c)’s requirement that the opening brief reference
the page(s) in the record where the assignment of error was preserved; (2) it avers that appellant
failed to comply with Rule 5A:8’s requirement that he include a transcript or written statement of
8 The second and third orders extended the first order’s tolling provisions on filing deadlines. March 27, 2020, Order Extending Declaration of Judicial Emergency in Response to COVID-19 Emergency; April 22, 2020, Order Extending Declaration of Judicial Emergency in Response to COVID-19 Emergency. The clarification order simply explained that the prior emergency orders applied to the Speedy Trial Act. May 1, 2020, Clarification Order Concerning Tolling of Statutory Speedy Trial Deadlines During the Judicial Emergency in Response to COVID-19 Crisis.
- 13 - facts in the record and thus did not “provide a sufficient record” for this Court to competently
resolve this appeal; and (3) it contends that appellant did not present the argument to the trial
court which he now makes on appeal, which bars his assignment of error under Rule 5A:18.
Although the Commonwealth separates its arguments related to Rules 5A:12, 5A:20, and
5A:18,9 each argument works together to make a single comprehensive argument: because the
trial court was never presented with the argument that Code § 16.1-132’s ten-day deadline was
tolled by the Virginia Supreme Court’s emergency orders, appellant did not preserve that
argument for this Court’s consideration and consequently cannot reference any point in the
record where he did so.
That argument is not persuasive. Even accepting the premise that the trial court was
never presented with the argument appellant now makes on appeal, the contemporaneous
objection standard is inapposite here. While Rule 5A:18 generally requires a litigant to object to
a trial court’s ruling at the time the ruling is made in order to preserve an issue for appeal, Code
§ 8.01-384(A) creates an exception to the rule, providing that “if a party has no opportunity to
object to a ruling or order at the time it is made, the absence of an objection shall not thereafter
prejudice him . . . on appeal.” (Emphasis added). Plainly, this provision “requires appellate
courts to consider issues on appeal that do not satisfy the contemporaneous objection
9 Because the Commonwealth’s second argument regarding Rule 5A:8 borders on the frivolous, I do not address it above the line. The Commonwealth finds fault with appellant not including a transcript or written statement of facts in the record for this appeal. But an appeal to the circuit court is in the nature of a writ of error and is considered de novo. See Robinson Family, LLC v. Allen, 295 Va. 130, 143-44 (2018). Here, appellant was denied the opportunity to be heard by a court of record, which is the entire basis of his appeal to this Court. There was no proceeding in the trial court, so there is no transcript or written statement of facts to be presented to this Court. See Rule 5A:8(b)(4)(ii) (providing that absence of a transcript or written statement of facts will result in a default of an assignment of error only when those components are “necessary to permit resolution of appellate issues”).
- 14 - requirement when the litigant had no opportunity to make the requisite timely objection.”
Maxwell v. Commonwealth, 287 Va. 258, 265 (2014).
Here, appellant had no opportunity to object to the trial court’s ruling at the time it was
made. Because the trial court mistakenly believed that appellant’s appeal was untimely, it denied
the appeal sua sponte, without a hearing, and outside the presence of appellant or his counsel.
Id. at 264-67 (holding that a litigant had no opportunity to contemporaneously object to trial
court’s ruling where trial court ruled outside the presence of the litigant and his counsel). As
such, appellant’s lack of an opportunity to make a contemporaneous objection was caused by the
fact that the trial court issued its ruling without appellant present and based on its
misunderstanding of the applicable filing deadlines, not through any fault on appellant’s part.
See Commonwealth v. Amos, 287 Va. 301, 306-08 (2014) (clarifying that Code § 8.01-384(A)’s
exception applies when a litigant’s lack of opportunity to make a contemporaneous objection is
not attributable to the litigant’s own fault).
The majority disagrees with my analysis on this point. But notably, the majority
concedes that appellant was precluded from making a contemporaneous objection to the trial
court’s denial order. Ante, at 11 (“[A]ppellant did not have the opportunity to note an objection
at the time the circuit court denied his appeal of the lower court’s decision[.]” (emphasis
added)). That concession should end the debate, because the plain text of Code § 8.01-384(A)
makes clear that its exception applies in situations where “a party has no opportunity to object to
a ruling or order at the time it is made . . . .” (Emphasis added).
To avoid that conclusion, the majority asserts that Code § 8.01-384(A) does not avail
appellant because the courts were open when he filed his appeal and “nothing prevented
appellant from seeking a stay, modification, vacation, or reconsideration of the circuit’s
ruling[.]” But precedent forecloses the majority’s analysis, as the Virginia Supreme Court has
- 15 - rejected an interpretation of Code § 8.01-384(A) that requires a party to file a post-ruling
objection when a trial court denies the party an opportunity to object at the time the ruling was
made:
The plain language of the contemporaneous objection exception in Code § 8.01-384(A) states that when the litigant, through no fault of his own, is prevented from making a contemporaneous objection to the court’s ruling or order, the failure to object “shall not thereafter prejudice” the litigant on appeal. . . . This language is clear and unqualified. The statute imposes no requirement that when the contemporaneous objection exception applies, a party, if able, must file a post-conviction objection or otherwise bring the objection to the court’s attention at a later point in the proceedings . . . . To [hold otherwise] would require us to add language to the statute. This Court may not construe the plain language of a statute in a manner that amounts to holding that the General Assembly meant to add a requirement to the statute that it did not actually express.
Amos, 287 Va. at 306-07 (second and third emphases added) (internal citation and quotation
marks omitted). Thus, even though a party who was denied the opportunity to make a
contemporaneous objection “may be able to and may choose to file a motion to reconsider [and
may even be wise to do so,] [s]uch a step . . . is not required under Code § 8.01-384(A) in order
to preserve an issue for appellate review.” Id. at 307.
By faulting appellant for not filing a post-ruling motion to the trial court’s denial order,
the majority circumvents the Amos Court’s holdings and effectively adopts the interpretation of
Code § 8.01-384(A) espoused by the dissent in that case. See id. at 309 (McClanahan, J.,
dissenting) (stating that Code § 8.01-384(A) does not relieve a party of an “obligation to later
state his objection if the trial court can still take corrective action—whether in the context of
summary contempt or otherwise”).
What is more, it is not as if the majority’s interpretation could not have been adopted in
the cases where Virginia courts found Code § 8.01-384(A)’s exception applicable. Take Amos
as an example. The individual subject to the summary contempt order in that case was able - 16 - to—and in fact did—file a motion to vacate the order. Id. at 304-05. Because the individual did
not obtain a ruling on her motion while the trial court had jurisdiction over the matter (or put
another way, while it was in a position to take corrective action), the Commonwealth averred
that the arguments she made on appeal were waived. Id. at 305. But as noted, the Amos Court
held that the plain language of Code § 8.01-384(A) precluded the Commonwealth’s argument.
And it did so despite the fact that it could have adopted the view taken by the majority today.
Take Maxwell as another example. As the majority notes, the issue there was that the
trial court provided answers to jury questions during jury deliberations when neither the
defendant nor his counsel was present. Maxwell, 287 Va. at 262-63. The defendant did not note
an objection in the trial court, even though he learned of the trial court’s error while the jury was
still deliberating and thus while the trial court was in a position to take corrective action. Id. at
266. On appeal, the Commonwealth charged that Code § 8.01-384(A) did not relieve the
defendant of his obligation to allow the trial court the opportunity to take corrective action while
it had jurisdiction over the matter. Id. This Court agreed, holding that even though the trial
court’s actions occurred outside the presence of the defendant and his counsel, appellant still had
an opportunity “to consult with counsel and to determine whether corrective actions could be
taken or whether a mistrial should be declared.” Maxwell v. Commonwealth, No. 0047-12-4, at
*1, 6 (Va. Ct. App. Apr. 16, 2013). The Virginia Supreme Court reversed this Court’s judgment,
and the entire focus of its analysis was that the defendant was incapable of objecting to the trial
court’s action at the time it was made, despite the fact that the defendant had an opportunity to
request that the trial court take corrective action following its error. Maxwell, 287 Va. at 266-67.
So there again, the Court passed on an opportunity to interpret Code § 8.01-384(A) the way the
majority does now.
- 17 - In short, the focus of any analysis of Code § 8.01-384(A)’s exception is whether a litigant
had an opportunity to object to a trial court’s ruling at the time it is made. Under the plain text of
that statute—as well as the controlling authorities that have interpreted it—it is immaterial
whether a litigant has the ability to file a post-ruling motion while the trial court is in a position
to take corrective action for its alleged error.10 Amos, 287 Va. at 306-07 (“The statute imposes
no requirement that . . . a party, if able, must . . . otherwise bring the objection to the court’s
attention at a later point in the proceedings as the Commonwealth argues.” (emphasis added)).
I also respectfully disagree with the majority’s conclusion that this Court cannot consider
appellant’s Code § 8.01-384(A) argument because he raised it for the first time at oral
argument.11 Under Rule 5A:20(e), “[w]hen the assignment of error was not preserved in the trial
10 The majority raises a policy concern in response to my analysis: namely, that my reading of the statute and applicable precedents would “eviscerate” the contemporaneous objection rule every time a trial court issues non-endorsed orders under Rule 1:13. Ante, at 10 n.7. In my view, the majority’s prediction is overstated. For one thing, I presume that it will be the rare case where a trial court denies or dismisses actions in the absence of any authority to do so. Cf. White v. White, 56 Va. App. 214, 217 (2010) (“In Virginia, we presume [trial] judges know the law and correctly apply it.” (alteration in original) (internal citation and quotation marks omitted)). For another, a substantial number of cases where a trial court exercises its discretion under Rule 1:13 will involve scenarios where the litigants have disputed a given issue before the court and the court issues a ruling on that dispute. In such cases, no formal objection to the trial court’s order would be necessary because the parties have already made their respective positions known to the trial court prior to its order. See Cuffee-Smith v. Commonwealth, 39 Va. App. 476, 480 (2002) (“Formal exceptions to rulings are not necessary as long as the party makes known to the court the action which he desires the court to take . . . .” (internal citation and quotation marks omitted)). More important, however, is the fact that regardless of whether my or the majority’s prediction is correct, the General Assembly has seen fit to create an exception to the contemporaneous objection rule, and the entire point of an exception is to “eviscerate” a general rule’s application in specified contexts. Where the General Assembly chooses to legislate in an area within its power, a court’s duty is to simply apply the law as written. If doing so creates policy concerns like the one the majority raises today, then that is an issue for the General Assembly, not the judiciary, to address. 11 I provide this analysis because I understand the judgment of the majority opinion to be two-fold: (1) appellant’s assignment of error is waived under Rule 5A:18 and (2) even if it were
- 18 - court, counsel must state why the good cause and/or ends of justice exceptions to Rule 5A:18 are
applicable.” Because Rule 5A:20(e) is non-jurisdictional, however, a failure to comply with it
does not require that an appellant’s assignment of error be dismissed or automatically be found
waived. Jay v. Commonwealth, 275 Va. 510, 520 (2008). Instead, it is left to this Court’s
judgment to discern whether an appellant’s non-compliance is “significant” and therefore
warranting of this Court treating an issue as waived:
[W]hen an appellant does not comply with [Rule 5A:20(e)] . . . the Court of Appeals may, among other things, require an appellant to re-submit the petition for appeal or opening brief, or it may treat a question presented [now assignment of error] as waived. The Court of Appeals should, however, consider whether any failure to strictly adhere to the requirements of Rule 5A:20(e) is insignificant, thus allowing the court to address the merits of a[n assignment of error].
Id. (emphasis added); see also Bartley v. Commonwealth, 67 Va. App. 740, 744 (2017) (noting
this Court “may” treat an issue as waived if an appellant fails to comply with Rule 5A:20(e)).
And when determining whether an appellant’s failure to comply with a non-jurisdictional rule is
significant, this Court must consider all the circumstances of the case. See Moore v.
Commonwealth, 276 Va. 747, 756 (2008) (discussing the “circumstances” of the case in
reversing this Court’s conclusion that an appellant’s violation of Rule 5A:12(c) was “so
substantial as to preclude [it] from addressing the merits of the case”).
In weighing the relevant circumstances of this case, I conclude that any non-compliance
with Rule 5A:20(e) on appellant’s part was not “so substantial as to preclude [this Court] from
addressing the merits of the case.” See id. To that end, I offer four considerations.
First, this is not a case where an appellant’s non-compliance with Rule 5A:20(e) resulted
in denying an appellee a meaningful opportunity to address all of the issues raised in an appeal.
not waived due to Code § 8.01-384(A)’s exception to the contemporaneous objection rule, it is still waived because appellant did not invoke that statutory exception in his opening brief.
- 19 - To the contrary, the Commonwealth in its brief pre-emptively rebutted the assertion that
appellant had no opportunity to object to the trial court’s denial order, which means it addressed
the precise issues raised by an analysis of Code § 8.01-384(A)’s exception to the
contemporaneous objection rule. See, e.g., Commonwealth’s Br. at 12 (“[Appellant] had ample
opportunity to seek reconsideration, to argue to the circuit court that the emergency orders
extended the time for filing his notice of appeal, and to obtain a ruling clearly deciding the issue.
He failed to do so.”). And when appellant raised Code § 8.01-384(A) at oral argument, the
Commonwealth took full opportunity to answer this Court’s questions on that statute and to
dispute appellant’s reliance on it. As such, one of the primary justifications for strict adherence
to Rule 5A:20(e) is not present in this case, which undermines the conclusion that finding
appellant’s assignment of error waived is the most appropriate course of action in resolving this
appeal. Cf. Jeter v. Commonwealth, 44 Va. App. 733, 741 (2005) (noting that “one of the
fundamental purposes of Rule 5A:20(e)” is to give appellees a “meaningful opportunity” to
address all the issues raised on appeal).
Second, the merits of appellant’s assignment of error as well as his argument related to
Code § 8.01-384(A) are straightforward and beyond any genuine dispute. Indeed, the
Commonwealth never argued that the trial court’s denial of appellant’s appeal was lawful (nor
could it). And to the extent it disputed Code § 8.01-384(A)’s applicability to this case, it simply
retried the argument it made in Amos—that appellant had an opportunity to object because he
could have filed a motion to reconsider after the trial court denied his appeal. But the Virginia
Supreme Court has already rejected that argument, and I cannot see any other angle from which
one can postulate that appellant could have contemporaneously objected to the trial court’s
denial order when the order was entered without a hearing and outside the presence of appellant
or his counsel.
- 20 - If either the threshold question or the merits were a closer call, the justification for
finding appellant’s assignment of error waived would be greater. An additional purpose of Rule
5A:20(e) is to prevent this Court from becoming a “depository in which the appellant may dump
the burden of argument and research.” Bartley, 67 Va. App. at 744 (citation omitted). But
where, as here, the issues are easily resolved and beyond dispute—and the relevant authorities
were, in the aggregate, brought to this Court’s attention through both the parties’ briefs as well as
oral argument—it can hardly be said that appellant’s non-compliance with Rule 5A:20(e)
inflicted a “burden” on this Court sufficient to justify imposing the harsh penalty of waiver.
Indeed, the fact that the majority can and does provide its own analysis of Code § 8.01-384(A) in
response to this dissent demonstrates the point.
Third, this Court never once raised Rule 5A:20(e) during oral argument, much less
suggested that appellant’s non-compliance with it could serve as a potential barrier to this Court
addressing his argument on the merits. Instead, this Court spent the vast majority of oral
argument questioning appellant and the Commonwealth on whether the assignment of error was
preserved and whether Code § 8.01-384(A)’s exception to the contemporaneous objection rule
applied. Notwithstanding that fact, the majority now holds appellant’s non-compliance with
Rule 5A:20(e) against him, without ever giving him the opportunity to provide his own insight as
to the “significance” of his shortcoming pursuant to Jay.
Fourth, the stakes associated with reversal in this case are minor in context. In most
criminal appeals, this Court is asked to overturn an appellant’s conviction after a trial court has
considered the case in its entirety through a trial and multiple hearings. By contrast, reversal in
this case would not disturb a trial court’s considered judgment or expenditure of resources in any
- 21 - meaningful sense, and instead would merely result in appellant being given the opportunity to be
heard by a court of record on the crime he is alleged to have committed.12
In deciding that treating appellant’s assignment of error as waived is the appropriate
response to his non-compliance with Rule 5A:20(e), the majority necessarily concludes that any
burden associated with appellant’s shortcoming outweighs all of the considerations I have
outlined above. I respectfully cannot join the majority’s judgment on that front.
In differing with the majority, I do not condone appellant’s failure to comply with this
Court’s rules and likewise do not condone any similar violations of litigants in the future. In
fact, as this Court once did in Bartley, see 67 Va. App. at 747, I implore future litigants as a
matter of best practices to be mindful of this Court’s rules, carefully abide by them, and not take
for granted that non-compliance with this Court’s rules may prove to not be fatal in the event
such non-compliance is insignificant.
In sum, I conclude that appellant had no opportunity to contemporaneously object to the
trial court’s denial of his appeal. Accordingly, the procedural rules relied on by the
Commonwealth do not prevent this Court from considering appellant’s arguments. Likewise,
when considering all the circumstances of this appeal, I conclude that appellant’s
non-compliance with Rule 5A:20(e) was not “so substantial as to preclude [this Court] from
12 Compare the circumstances of this case to those present in the Virginia Supreme Court’s decision in Toghill v. Commonwealth, 289 Va. 220, 224-25 (2015). There, the stakes of reversal were not just the potential reversal of a criminal conviction, but also the potential invalidation of an entire statute. Like the appellant in this case, the appellant in Toghill did not raise the arguments in support of reversal in the trial court. Id. But unlike the appellant here, the appellant there did not raise the good cause exception at any point in the proceedings. Id. at 239 (McClanahan, J., concurring). Nonetheless, the Court, sua sponte, determined that good cause excused the lack of preservation in the trial court and reached the merits of the case. Id. at 225-27. I cite Toghill not to suggest that it gives appellate judges carte blanche authority to invoke the good cause exception regardless of whether an appellant does so, but rather to demonstrate that the circumstances and stakes in this case are far less extreme, which in turn supports my conclusion that reaching the merits of this appeal is the more appropriate course of action.
- 22 - addressing the merits of the case” and awarding him the relief to which he is entitled. See
Moore, 276 Va. at 756. I would therefore reverse the trial court’s denial order and remand with
instructions to conduct proceedings consistent with the analysis set forth in this dissent.
- 23 -