Kenneth Michael Kerr v. Commonwealth of Virginia , 35 Va. App. 149 ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Clements
Argued at Alexandria, Virginia
KENNETH MICHAEL KERR
OPINION BY
v. Record No. 0571-00-2 JUDGE JERE M. H. WILLIS, JR.
MARCH 27, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Catherine C. Hammond, Judge
Andrea C. Long (Boone, Beale, Cosby & Long,
on brief), for appellant.
Susan M. Harris, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
On appeal from the denial of his petition to reinstate his
privilege to operate a motor vehicle, Kenneth Michael Kerr
contends that the trial court erred in ruling that he was
ineligible for reinstatement. Because Kerr failed to preserve
this issue for appeal, we affirm the judgment of the trial
court. See Rule 5A:18.
I. BACKGROUND
Kerr filed a statement of facts in lieu of a transcript.
The statement reads:
Kenneth Michael Kerr, 29 years old, was
the only witness who testified during the
hearing on his petition to reinstate [h]is
operator's license. He testified that he
has only been convicted of a drug offense
once, which was for simple possession of
marijuana. He was convicted of that offense
on December 7, 1993. As part of the
disposition in that case he was fined and
his privilege to operate a motor vehicle was
suspended/revoked for a period of six
months.
Petitioner testified that he had paid
what he thought to be the entire fine and
court costs for that drug offense, however,
he discovered in 1998 that he still owed
some $5.60 on this offense. As a result,
his license had been suspended indefinitely
for the drug conviction, by operation of
law, from January 13, 1994. He testified he
did not receive any notification of this
suspension once it went into effect, but was
in court on December 7, 1993[,] when he was
told by the clerk that failure to pay in
full the fine and costs would result in an
automatic suspension of his driving
privileges until such time as they and a
reinstatement fee are paid.
Since that time, Petitioner amassed
other convictions for driving offenses for
which fines and costs were assessed which he
did not pay in a timely fashion.
Subsequently, his license was suspended
indefinitely on these occasions. He was
convicted three times in 1995 and 1996 for
driving under revocation or suspension,
which led to his adjudication on February 7,
1997[,] as an habitual offender.
In 1998 he paid off all his
then-outstanding fines and costs. It was
then that he discovered and paid the unpaid
balance on the drug offense.
Petitioner testified that since that
drug offense[,] his privilege to operate a
motor vehicle in Virginia has never been
reinstated. He has been continuously
suspended since January 13, 1994.
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II. ANALYSIS
Kerr contends that the trial court should have restored his
driving privileges because he met the statutory guidelines for
reinstatement. See Code § 46.2-361. We conclude that this
issue is barred. "No ruling of the trial court . . . will be
considered as a basis for reversal unless the objection was
stated together with the grounds therefor at the time of the
ruling, except for good cause shown or to enable the Court of
Appeals to attain the ends of justice." Rule 5A:18. "The
burden is upon the appellant to provide us with a record which
substantiates the claim of error." Jenkins v. Winchester Dep't
of Social Servs., 12 Va. App. 1178, 1185, 409 S.E.2d 16, 20
(1991) (citation omitted).
The record in this case lacks information critical to our
determination of the issue raised by Kerr. No transcript of the
February 11, 2000 hearing is provided. The record contains
merely a statement of facts. That statement contains no
assertion by Kerr of the position he takes on appeal, no ruling
by the trial court on that position, and no objection by Kerr to
any trial court ruling. The trial order sets forth no such
statement of position, ruling or objection. Thus, the record
fails to establish that the issues appealed by Kerr were raised
before the trial court.
Because Kerr did not comply with the requirements of Rule
5A:18, his appeal is barred. Moreover, the record reflects no
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reason to invoke the good cause or ends of justice exceptions to
Rule 5A:18.
The judgment of the trial court is affirmed.
Affirmed.
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