Marshall Stephens v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: March 21, 2023
• Docket: 1068224
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges Beales, Fulton and Lorish

MARSHALL STEPHENS MEMORANDUM OPINION v. Record No. 1068-22-4 PER CURIAM MARCH 21, 2023 COMMONWEALTH OF VIRGINIA

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

(Robert L. Jenkins, Jr.; Bynum & Jenkins, on briefs), for appellant.

(Jason S. Miyares, Attorney General; Matthew P. Dullaghan, Senior Assistant Attorney General, on brief), for appellee.

Marshall Stephens appeals from his convictions for first-degree murder and using a firearm

in the commission of a felony, arguing the evidence was insufficient to sustain the convictions.

Because Stephens failed to timely file a transcript or statement of facts instead of a transcript

necessary to the appeal, we cannot address Stephens’s assignment of error. See Rule 5A:8. After

examining the briefs and record, the panel unanimously holds that oral argument is unnecessary

because “the appeal is wholly without merit.” Code § 17.1-403(ii)(a); Rule 5A:27(a). We affirm

his convictions.

BACKGROUND

A jury convicted Stephens of first-degree murder and using a firearm in the commission

of a felony. The trial court sentenced Stephens to life plus three years’ imprisonment by order

entered on April 20, 2022, and Stephens filed a timely notice of appeal on April 29, 2022. The

 This opinion is not designated for publication. See Code § 17.1-413. notice of appeal stated that Stephens “ha[d] ordered from the court reporter who reported the

case the transcript for filing as required by Rule 5A:8(a).”

On August 30, 2022, Stephens moved this Court to extend the deadline for his opening

brief and appendix because this Court “ha[d] not received the trial transcripts as part of the

record transmitted by the Circuit Court.” Stephens did not move for an extension of the 60-day

deadline for filing the transcripts in the trial court. This Court entered an order awarding

Stephens an extension of time to file an opening brief, but the order did not extend the deadline

to file transcripts.

Later, Stephens petitioned this Court to issue a writ of certiorari to the trial court “for the

purpose of including the trial transcripts in the record.” Stephens asserted that “[u]pon

inspection of the record on appeal,” he discovered that the transcripts “he intended to designate

for inclusion in the Appendix were not included.” Stephens also moved for another extension of

time to file an opening brief. On October 4, 2022, Stephens filed the relevant transcripts in the

trial court.

On October 12, 2022, this Court denied Stephens’s petition for a writ of certiorari. We

stated that “the particular transcripts at issue were not timely filed in the trial court” and Stephens

“[was] actually seeking an extension of time in which to file the said transcripts.” We held that

under Rule 5A:8(a), “[t]his Court has no authority to extend the time to file the transcript if a

motion to do so was not filed within 90 days after entry of final judgment.” Accordingly, we

denied Stephens’s petition. In another order entered the same day, we granted Stephens until

October 28, 2022, to file an opening brief. Stephens filed an opening brief on October 28, 2022.

The Commonwealth responded, arguing that indispensable transcripts had not been filed.

-2- ANALYSIS

Stephens challenges the sufficiency of the evidence to sustain his convictions. He asserts

that while the evidence “may have established [his] presence in the area of the crime scene and

his lack of candor in his communications with the lead detective,” this is insufficient to prove

that he committed the crimes. We cannot reach the merits of Stephens’s arguments, however,

because he failed to file the transcripts—or a written statement of facts rather than the

transcripts—necessary for our review.

“[A]n appellate court’s review of the case is limited to the record on appeal.” Wilkins v.

Commonwealth, 64 Va. App. 711, 717 (2015) (quoting Turner v. Commonwealth, 2 Va. App. 96,

99 (1986)), aff’d, 292 Va. 2 (2016). “It is appellant’s burden to provide this Court with a record

from which it can decide the issues in the case.” Clarke v. Commonwealth, 60 Va. App. 190,

199 (2012). “In the absence [of a sufficient record], we will not consider the point.” Robinson v.

Robinson, 50 Va. App. 189, 197 (2007) (alteration in original) (quoting Jenkins v. Winchester

Dep’t of Soc. Servs., 12 Va. App. 1178, 1185 (1991)).

“The transcript of any proceeding is a part of the record when it is filed in the office of

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

“This deadline may be extended by a judge of this Court only upon a written motion filed within

90 days after the entry of final judgment.” Id. (emphasis added). “When 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). Indeed, if “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 on appeal must be strictly adhered to.” Bay v.

Commonwealth, 60 Va. App. 520, 528 (2012) (alterations in original) (quoting Turner, 2

-3- Va. App. at 99). “This Court has no authority to make exceptions to the filing requirements set

out in the Rules.” Id. (quoting Turner, 2 Va. App. at 99).

Stephens filed the transcripts in the trial court on October 4, 2022, well more than 60

days after entry of the final judgment on April 20, 2022. Stephens did not file a statement of

facts in lieu of the transcripts. And even if we construe his August 30, 2022 motion to extend the

deadline for his opening brief and appendix (citing this Court’s failure to receive the trial

transcripts “as part of the record transmitted by the Circuit Court”) as a motion to extend the time

to file the transcripts, it was not filed within 90 days of the final judgment. See Rule 5A:8(a).

Thus, the transcripts were not timely filed in the trial court and are not part of the appellate

record.1

As Stephens challenges the sufficiency of the evidence supporting his convictions, a

timely-filed transcript of the trial proceedings in which the evidence was introduced, or a written

statement of facts in lieu of a transcript, is indispensable to resolving Stephens’s sole assignment

of error. Therefore, we cannot resolve Stephens’s sole assignment of error because he failed to

ensure that the record contained a timely-filed transcript, or a written statement of facts in lieu of

a transcript. Rule 5A:8(b)(4)(ii). Accordingly, we affirm the trial court’s judgment.

CONCLUSION

For the above reasons, we affirm the trial court’s judgment.

Affirmed.

1 Code § 19.2-321.1 permits a motion for delayed appeal in a criminal case in some cases, including where a “conviction has been affirmed for failure to file or timely file the indispensable transcript or written statement of facts as required by law or by the Rules of the Supreme Court.” -4-