Darrin Mark Robertson v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: September 26, 2023
• Docket: 1851224
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges Malveaux, Raphael and Callins

DARRIN MARK ROBERTSON MEMORANDUM OPINION* v. Record No. 1851-22-4 PER CURIAM SEPTEMBER 26, 2023 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Daniel S. Fiore, II, Judge

(Rachel Collins, Senior Trial Attorney, on brief), for appellant.

(Jason S. Miyares, Attorney General; Michael L. Eaton, Assistant Attorney General, on brief), for appellee.

After a summary proceeding under Code § 19.2-306, the Arlington County Circuit Court

found Darrin Robertson in violation of the terms and conditions of his felony probation. The

trial court revoked Robertson’s previously suspended sentences and reimposed a sentence that

resulted in ten years’ active incarceration. Robertson contends that the trial court abused its

discretion in doing so, but Robertson failed to timely file a transcript of the revocation hearing or

a statement of facts in lieu of the transcript. Because that portion of the record is indispensable

to the appeal, we cannot reach his assignment of error and must affirm. As a result, the panel

also unanimously holds that oral argument is unnecessary because “the appeal is wholly without

merit.” Code § 17.1-403(ii)(a); Rule 5A:27(a).

* This opinion is not designated for publication. See Code § 17.1-413(A). BACKGROUND

In 2009, after Robertson pleaded guilty to attempted rape and breaking and entering with

the intent to commit rape, the trial court sentenced him to 25 years’ incarceration, with 15 years

suspended. After Robertson’s release from incarceration in 2017, the trial court found in 2018

that Robertson violated the terms of his probation. The court revoked and re-suspended the rest

of Robertson’s sentences.

In 2021, Robertson’s probation officer filed a major violation report alleging that

Robertson had been arrested on two new charges: peeping into a dwelling, in violation of Code

§ 18.2-130(A), and unlawfully filming a nude person without consent, in violation of Code

§ 18.2-386.1. Robertson was convicted of those offenses in July 2022.

At his revocation hearing on October 7, 2022, Robertson admitted the violation. In an

order entered November 2, 2022, the trial court stated that it had “considered the information

provided, and argument was heard by the Attorney for the Commonwealth and Attorney for the

Defendant.” Finding that Robertson had violated the terms of his probation, the court imposed

the balance of his sentence on the underlying burglary conviction and resuspended Robertson’s

sentence on the underlying attempted-rape conviction, resulting in an active period of

incarceration of ten years. The trial court denied Robertson’s motion to reconsider on November

21, 2022.

Robertson noted a timely appeal. But he did not file the transcript of the revocation

hearing until January 4, 2023, and he did not move for an extension of time to file the transcript.

ANALYSIS

Robertson asserts that the trial court abused its discretion in imposing a ten-year active

sentence because it disregarded alternatives to incarceration, failed to give proper weight to

mitigating factors, and ignored the sentencing guidelines. But we cannot reach the merits of

-2- those claims without the transcript of the revocation hearing, which Robertson has failed to

properly make part of the record.

A transcript, or a written statement of facts in lieu of a transcript, must be filed with the

trial court “no later than 60 days after entry of the final judgment.” Rule 5A:8(a)-(c)(1).

Transcripts or written statements of facts are part of the record only when they are timely filed.

Id. We may extend the deadline to file a transcript “only upon a written motion filed within 90

days after the entry of final judgment.” Rule 5A:8(a).

The trial court entered final judgment when it sentenced Robertson on November 2,

2022. Rule 1:1(b); Jefferson v. Commonwealth, 298 Va. 473, 476 (2020) (“In the criminal

context, . . . a sentencing order is a final order.”).1 Robertson thus had to file any necessary

transcripts by no later than January 3, 2023.2 He filed the transcript of the revocation hearing on

January 4, but he did not move for an extension of time. See Rule 5A:8(a).

Although Robertson filed the transcript here only one day late, that delay was

procedurally fatal because he did not move for an extension of time. “This Court has no

authority to make exceptions to the filing requirements set out in the Rules.” Shiembob v.

Shiembob, 55 Va. App. 234, 246 (2009) (quoting Turner v. Commonwealth, 2 Va. App. 96, 99

(1986)). When “the transcript [or statement of facts] is indispensable to the determination of the

case, then the requirements for making the transcript [or statement of facts] a part of the record

1 The trial court’s order denying Robertson’s motion to reconsider was not the final order because it did not modify, vacate, or suspend the sentencing order. See Jefferson, 298 Va. at 478 (“[B]ecause the amended order did not modify, vacate, or suspend the judgment contained in the original order, the Court of Appeals correctly found that the amended order was not the final order.”); Kosko v. Ramser, 299 Va. 684, 689 (2021) (“The filing of . . . post-trial motions does not suddenly transform an otherwise final order into a nonfinal order.”). 2 January 1, 2023 was 60 days after November 2, 2022. But since January 1 was a Sunday and January 2 was a holiday, the filing deadline was the next business day. See Code § 1-210(B). -3- on appeal must be strictly adhered to.” Bay v. Commonwealth, 60 Va. App. 520, 528 (2012)

(alterations in original) (quoting Turner, 2 Va. App. at 99). And if “the appellant fails to ensure

that the record contains transcripts or a written statement of facts necessary to permit resolution

of appellate issues, any assignments of error affected by such omission will not be considered.”

Rule 5A:8(b)(4)(ii).

After reviewing the record and Robertson’s brief, we conclude that the transcript of his

revocation hearing is “indispensable” to address his assignment or error. Bay, 60 Va. App. at

528. Without it, we cannot evaluate Robertson’s claim that the trial court disregarded his

mitigating evidence and alternatives to incarceration, nor can we determine whether Robertson

preserved his arguments for appeal. See Smith v. Commonwealth, 32 Va. App. 766, 772 (2000).

Thus, without a transcript or a written statement of facts, we cannot address Robertson’s

contentions.

CONCLUSION

In short, Robertson’s failure to timely file the transcript of the revocation hearing

prevents us from reaching his assignment of error.

Affirmed.

-4-