Commonwealth of Virginia v. Shannon Smith Mitchell ( 2013 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, McCullough and Senior Judge Clements
UNPUBLISHED
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION* BY
v. Record No. 0741-13-3 JUDGE STEPHEN R. McCULLOUGH
SEPTEMBER 10, 2013
SHANNON SMITH MITCHELL
FROM THE CIRCUIT COURT OF FRANKLIN COUNTY
William N. Alexander, II, Judge
Alice T. Armstrong, Assistant Attorney General II (Kenneth T.
Cuccinelli, II, Attorney General, on briefs), for appellant.
Melissa P. Keen (Furrow & Keen, P.C., on brief), for appellee.
In this pretrial appeal, the Commonwealth challenges the trial court’s order granting
suppression of evidence seized from the defendant. We also ordered the parties to brief the
question of whether the Commonwealth’s appeal was timely filed. We conclude that the
Commonwealth’s appeal is properly before us. We further reverse the order of suppression and
remand the case for further proceedings.
BACKGROUND
Kevin Glenn Bowling, a loss prevention associate at a Wal-Mart store in Roanoke
County, observed the appellee, Shannon Smith Mitchell, place items of clothing in her cart. At a
separate location in the store, Mitchell removed the hangers from the clothing and placed the
clothing in her purse. Before leaving, Mitchell paid for a small item but did not pay for the
clothing concealed in her purse. Bowling approached Mitchell in the parking lot and asked about
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
the merchandise, but she ignored him. She climbed into the passenger seat of a truck, and the
vehicle drove away. Bowling obtained a description and a license plate number for the truck.
He then called the police.
Corporal Terry Scott Dameron, with the Franklin County Sheriff’s Office, observed a
suspect vehicle matching a description he had received earlier from his dispatcher. He stopped
the vehicle and asked Mitchell whether there was anything stolen in the vehicle. She handed him
a bag containing some clothing. Mitchell stated that she had stolen the items from Wal-Mart, but
that she would go back and pay for them. After she handed him the bag, he asked her if there
was anything else illegal in the vehicle, such as guns or drugs. Mitchell stated that there was a
“crack stem” in her purse. She retrieved it and handed it over to Corporal Dameron. Mitchell
indicated that she used it to smoke crack cocaine. Corporal Dameron seized her purse and found
additional incriminating evidence suggestive of drug use. He placed her under arrest for
possession of cocaine.
Mitchell was charged in Franklin County with possession of cocaine. She moved to
suppress the evidence, arguing that the stop was not supported by reasonable suspicion and,
further, that the statements she made were obtained in violation of her Fifth Amendment rights.
On February 20, 2013, the trial court held a hearing on the motion. At the conclusion of
the hearing, the court ordered the parties to file briefs setting forth their respective positions. A
transcript of the hearing was filed in the trial court on February 28, 2013. The record does not
reveal who filed this transcript.
On March 28, 2013, the trial court issued a detailed memorandum opinion. The court
first held that the stop was reasonable because it was based on reasonable articulable suspicion.
Second, the court held that after Mitchell admitted to stealing the clothes and handed the clothing
to the officer, she was in custody for Miranda purposes. Mitchell’s subsequent statements about
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a crack stem in her purse were made while she was in custody and without the benefit of
Miranda warnings. The court ruled that “[a]ll statements made by Mitchell and evidence of other
crimes found after she admitted the thefts from Wal-Mart should be excluded.” The court
declined to apply the doctrine of inevitable discovery. The court reasoned that had the defendant
been arrested on some other charge, such as possession of stolen property, “inevitably the
contents [of her purse] would have been found during the processing.” However, the court
found, she was not taken for processing on any charge except the possession of cocaine. The
court then issued an order on April 9, 2013, granting Mitchell’s motion to suppress.
On April 4, 2013, the Commonwealth filed a motion to reconsider. The court denied that
motion on April 12, 2013. The Commonwealth filed its notice of appeal four days later, on April
16, 2013, and filed a notice of filing of transcript on the same date. The Commonwealth filed its
petition for appeal on April 30, 2013.
ANALYSIS
I. TIMELINESS OF THE COMMONWEALTH’S APPEAL
As a preliminary matter, this Court directed the parties to brief the following question:
In a case where, as here, (i) the transcript was filed prior to the
entry of the order being appealed, (ii) a notice of filing transcript
was filed after the entry of the order being appealed, and (iii) the
petition for appeal was filed within 14 days of filing the post-order
notice but not within 14 days of filing the pre-order transcript, has
the Commonwealth filed a timely petition for appeal?
Several considerations guide our reading of the applicable statutes. First, because the
right to appeal by the Commonwealth is in derogation of the general prohibition against appeals
by the Commonwealth, this right “must be strictly construed against the state and limited in
application to cases falling clearly within the language of the statute.” Commonwealth v.
Hawkins, 10 Va. App. 41, 44, 390 S.E.2d 3, 5 (1990) (citations omitted). At the same time, we
will not construe a statute in a manner that “leads to absurd results.” Bowling v.
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Commonwealth, 51 Va. App. 102, 109, 654 S.E.2d 354, 358 (2007) (citation omitted). In
addition, “[i]t is a cardinal rule of construction that statutes dealing with a specific subject must
be construed together in order to arrive at the object sought to be accomplished.” Prillaman v.
Commonwealth, 199 Va. 401, 406, 100 S.E.2d 4, 8 (1957). The object of all of these canons of
statutory construction “is to ascertain and give effect to legislative intent.” Turner v.
Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983).
Code § 19.2-402(B) provides that “[t]he petition for a pretrial appeal shall be filed with
the clerk of the Court of Appeals not more than 14 days after the date that the transcript . . . is
filed.” Read in isolation, this provision would require us to dismiss this appeal: the transcript
was filed on February 28, 2013, and the petition for appeal was filed in our Court on April 30,
2013, more than 14 days after the transcript was filed. The issue, however, is not so simple. At
the time the transcript was filed, the court had not even ruled on the motion to suppress. The
court did not rule on the suppression motion until April 9, 2013, more than 14 days after the
transcript was filed. It is not clear how the Commonwealth can file a petition for appeal from a
ruling that has not even occurred.
Code § 19.2-405 provides an important clue concerning the General Assembly’s intent
with regard to the filing of the transcript. Code § 19.2-405 provides that “[t]he transcript or
written statement of facts shall be filed by the Commonwealth with the clerk of the circuit court
from which the appeal is being taken, within 25 days following entry of the order of the circuit
court.” (Emphasis added). It is thus plain that the General Assembly contemplated, logically
enough, that the transcript in a pretrial appeal filed by the Commonwealth would be filed after
the entry of an order granting suppression. Here, the transcript was filed before the court ruled.
The question is how to apply Code § 19.2-402(B) when the sequence of events contemplated by
the General Assembly has not occurred. A strict, literal reading of the 14-day transcript filing
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requirement of Code § 19.2-402(B) would lead to absurd results. It would serve no purpose to
require the Commonwealth to go through the meaningless exercise of filing a second, identical
transcript.1
In addition, we note the purpose behind the strict timelines governing pretrial appeals
filed by the Commonwealth. A defendant who succeeds in suppressing evidence often is
incarcerated. Even if he is not, the pending prosecution constitutes an omnipresent and
disruptive concern. As for the victims of crime who need redress, a long delay ill serves their
interests. The expedited deadlines governing pretrial appeals allow for the prompt determination
of whether a prosecution can effectively move forward or whether a defendant should be
released. The point of these statutory deadlines, however, is not formality for formality’s sake.2
Finally, the General Assembly has chosen to provide those who represent the people of
the Commonwealth with a limited right to appeal. We decline to read the Code in a way that
pointlessly frustrates this policy objective.
1
It is also worth noting that a transcript is not necessary for the appellate court to acquire
jurisdiction over an appeal. Smith v. Commonwealth, 281 Va. 464, 470, 706 S.E.2d 889, 893
(2011). It is possible that there might be no transcript at all, for example where a case proceeds
on stipulations or turns on a pure legal question.
2
The dissent, citing cases, notes that “in countless cases, this Court has dismissed appeals
for failure to comply with the strict letter of the statutes or rules governing appeals.” Those cases
are irrelevant to the specific issue before us. We have not interpreted appellate rules and statutes
with unmitigated harshness toward either defendants or the Commonwealth. See, e.g., Whitt v.
Commonwealth, 61 Va. App. 637, 739 S.E.2d 254 (2013) (holding that the harsh remedy of
dismissal was unwarranted and allowing appellants to amend an assignment of error to bring it
into conformity with the rules of court); Chatman v. Commonwealth, 61 Va. App. 618, 739
S.E.2d 245 (2013) (refusing to dismiss an appeal because the appellant initially failed to set forth
alongside the assignment of error the specific place in the transcript where the issue was
preserved). Whether dismissal is warranted, including in appeals brought by the
Commonwealth, depends on the statute or rule at issue. Compare Commonwealth v. Hackett,
2008 Va. App. LEXIS 120 (Va. Ct. App. Mar. 11, 2008) (unpublished) (holding that the
Commonwealth’s failure to make the certification under Code § 19.2-400 was not a jurisdictional
defect requiring dismissal), with Commonwealth v. Hawkins, 10 Va. App. 41, 390 S.E.2d 3(1990) (dismissing appeal because outside the scope of appeals permitted by Code
§ 19.2-398(2)).
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We hold that a transcript is timely filed for purposes of Code § 19.2-405 when it is filed
before the entry of the order appealed from. We further hold that when the transcript is filed
early in pretrial appeals filed by the Commonwealth, the petition for appeal is timely filed if it is
filed within 14 days of the filing of the notice of appeal. This conclusion accords with Rule
5A:8(b)(1), which provides as a default rule in ordinary appeals that when the transcript is filed
before the order that is being appealed, the filing deadlines are triggered by the filing of the
notice of appeal. The Commonwealth filed its petition for appeal within 14 days of the filing of
the notice of appeal, and, therefore, the appeal is properly before us.3
II. THE TRIAL COURT ERRED IN SUPPRESSING THE PHYSICAL EVIDENCE SEIZED FROM THE DEFENDANT.
The Commonwealth does not appeal the trial court’s suppression of the defendant’s
statements. It does, however, contend that the trial court erred in refusing to apply the doctrine of
inevitable discovery with regard to the physical evidence seized from the defendant.4 Although we
will “defer to the trial court’s factual findings unless plainly wrong or without evidence to support
them,” we will “review the ultimate question of law, the application of the inevitable discovery
3
We acknowledge that Code § 19.2-405 does not expressly address the effect of an early
transcript filing. Saunders v. Commonwealth, 12 Va. App. 154, 402 S.E.2d 708 (1991), is
instructive in this regard. In Saunders, we held that a prematurely filed notice of appeal was
timely. At the time Saunders was decided, our rule governing the filing of a notice of appeal did
not contain the language currently found in Rule 5A:6(a), that “[a] notice of appeal filed after the
court announces a decision or ruling – but before the entry of such judgment or order – is treated
as filed on the date of and after the entry.” Saunders indicates that premature filings do not
necessarily compel dismissal, even when the language of the applicable rule does not address the
impact of the premature filing. Saunders, 12 Va. App. at 154, 402 S.E.2d at 708.
4
We note that the exclusionary rule does not apply to physical evidence discovered as a
result of a Miranda violation. United States v. Patane, 542 U.S. 630, 634, 644-45 (2004)
(plurality and concurring opinions). “In short, the privilege against self-incrimination is simply
‘not concerned with nontestimonial evidence.’” Rowley v. Commonwealth, 48 Va. App. 181,
183, 629 S.E.2d 188, 189 (2006) (quoting Oregon v. Elstad, 470 U.S. 298, 304 (1985)). The
Commonwealth did not argue this point at trial. Accordingly, we do not address it here.
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doctrine, de novo.” Copeland v. Commonwealth, 42 Va. App. 424, 437, 592 S.E.2d 391, 397
(2004).
Even though the police may have illegally seized evidence, the suppression remedy should
not be applied when that evidence would inevitably have been discovered. Nix v. Williams, 467
U.S. 431, 444 (1984). The United States Supreme Court has explained that the premise behind the
application of the exclusionary rule is that “the challenged evidence is in some sense the product of
illegal governmental activity.” Id. (quoting United States v. Crews, 445 U.S. 463, 471 (1980)). “If
the prosecution can establish by a preponderance of the evidence that the information ultimately
or inevitably would have been discovered by lawful means . . . then the deterrence rationale has
so little basis that the evidence should be received.” Id.
When relying on the doctrine of inevitable discovery, the Commonwealth must show,
first, a reasonable probability that the evidence in question would have been discovered by
lawful means but for the police misconduct and, second, that the leads making the discovery
inevitable were possessed by the police at the time of the misconduct. Commonwealth v. Jones,
267 Va. 532, 536-37, 593 S.E.2d 204, 207 (2004).
The trial court found that “had [Mitchell] been arrested on some other charge such as
possession of stolen property in Franklin County, and taken to the Franklin County Sheriff’s office
for processing, inevitably the contents [of her purse] would have been found during the processing.”
The court reasoned, however, that the inevitable discovery rule did not apply because Mitchell was
not, in fact, arrested for possession of stolen property.
Under our precedent, it is “legally irrelevant” that Mitchell was arrested for a particular
crime if the officer had probable cause to arrest her for a different crime. See Slayton v.
Commonwealth, 41 Va. App. 101, 110, 582 S.E.2d 448, 452 (2003). Indisputably, the officer here
had probable cause to arrest Mitchell for stealing merchandise from Wal-Mart. Probable cause to
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arrest provides the officer with the authority to search incident to arrest. See United States v.
Robinson, 414 U.S. 218, 224 (1973). The search may take place before or after the arrest.
Italiano v. Commonwealth, 214 Va. 334, 336, 200 S.E.2d 526, 528 (1973). Corporal Dameron
had a right to search her as soon as he had probable cause to arrest. The record establishes by a
preponderance of the evidence a reasonable probability that the evidence in question would have
been discovered by lawful means but for the police misconduct and that the leads making the
discovery inevitable were possessed by the police at the time of the misconduct.5
CONCLUSION
We reverse the judgment of the trial court suppressing the physical evidence seized from
the defendant, and we remand the case for further proceedings.
Reversed and remanded.
5
Neither party, either in the trial court or on appeal, made any mention of Code § 19.2-74
and what impact this statute might have on the Fourth Amendment inevitable discovery analysis
in a situation like this one. Accordingly, we will not address the issue.
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Alston, J., dissenting.
I respectfully dissent from the majority’s holding that the Commonwealth timely filed its
petition for appeal in this case. Under the plain language of Code §§ 19.2-402(B) and -405, the
Commonwealth’s filing of its petition for appeal was not timely.6
Code § 19.2-402(B) sets forth certain procedural requirements that the Commonwealth’s
petition for a pretrial appeal must meet. It states, in pertinent part:
The petition for a pretrial appeal shall be filed with the clerk of the
Court of Appeals not more than 14 days after the date that the
transcript or written statement of facts is filed, or if there are
objections thereto, within 14 days after the judge signs the
transcript or written statement.
Code § 19.2-402(B). In order for this Court to acquire jurisdiction over a criminal appeal, the
petitioner must file a timely petition. Long v. Commonwealth, 7 Va. App. 503, 506, 375 S.E.2d
368, 369 (1988) (en banc) (decided in the context of the 40-day limit for filing a petition for
appeal under Rule 5A:12(a)).
Additionally, Code § 19.2-405 sets forth certain requirements for the filing of the
transcript or written statement of facts in a pretrial appeal. It provides, in pertinent part, “The
transcript or written statement of facts shall be filed by the Commonwealth with the clerk of the
circuit court from which the appeal is being taken, within 25 days following entry of the order of
the circuit court.” Code § 19.2-405.
To determine whether the Commonwealth’s petition for appeal was timely filed in this
case, we must interpret Code §§ 19.2-402(B) and -405. “The primary objective of statutory
construction is to determine legislative intent. In determining that intent, words are to be given
their ordinary meaning, unless it is apparent that the legislative intent is otherwise.” Phelps v.
6
Because I would hold that the Commonwealth’s petition for appeal was not timely filed,
I would not reach the merits of this case. As a result, I express no opinion on the majority’s
holding in Part II of its analysis.
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Commonwealth, 275 Va. 139, 142, 654 S.E.2d 926, 927 (2008) (citations omitted). “We must
also assume that the legislature chose, with care, the words it used when it enacted the relevant
statute.” Barr v. Town & Country Props., Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990).
Virginia appellate courts have
repeatedly . . . stated the principles of statutory construction that
apply when a statute . . . is clear and unambiguous. In such
circumstances, a court may look only to the words of the statute to
determine its meaning. The intention of the legislature must be
determined from those words, unless a literal construction would
result in a manifest absurdity. Thus, when the legislature has used
words of a clear and definite meaning, the courts cannot place on
them a construction that amounts to holding that the legislature did
not intend what it actually has expressed.
Hubbard v. Henrico Ltd. P’ship, 255 Va. 335, 339, 497 S.E.2d 335, 337 (1998) (citations
omitted), quoted in Paugh v. Henrico Area Mental Health & Dev. Servs., 286 Va. 85, 89, 743
S.E.2d 277, 279 (2013).
In addition, as the majority correctly states, because Commonwealth’s pretrial appeals are
“in derogation of the general constitutional prohibition against appeals by the Commonwealth,”
the statutes governing such appeals “‘must be strictly construed against the state and limited in
application to cases falling clearly within the language of the statute.’” Commonwealth v.
Hawkins, 10 Va. App. 41, 44, 390 S.E.2d 3, 5 (1990) (quoting Crews v. Commonwealth, 3
Va. App. 531, 536, 352 S.E.2d 1, 3 (1987)). However, while the majority notes this principle, it
does not apply it in interpreting Code §§ 19.2-402(B) and -405.
In my view, the concept of strict construction imposes a duty to limit or restrict judicial
interpretation. Strict construction requires this Court to apply the text of a statute only as it is
written. Once we identify a clear meaning of the text of the statute, no further analysis of the
statute under consideration is required. Thus, we are bound to avoid drawing inferences from the
statute and focus only on the text itself.
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Applying these principles, I would hold that the Commonwealth’s petition for appeal was
not timely filed under Code § 19.2-402(B). In the case at bar, the transcript of the hearing on the
motion to suppress was filed on February 28, 2013. The Commonwealth did not file its petition
for appeal until April 30, 2013, well beyond fourteen days after the transcript was filed. The
plain language of Code § 19.2-402(B) provides that the petition for appeal “shall be filed with
the clerk of the Court of Appeals not more than 14 days after the date that the transcript or
written statement of facts is filed.” The statute is unambiguous. It also makes no exception for a
situation where the transcript is filed before the entry of the trial court’s order. Thus, under the
plain language of the statute and construing the statute strictly against the Commonwealth, as we
must, I would hold that the petition for appeal must be filed no more than fourteen days after the
date that the transcript or written statement of facts is filed, without exception.
The majority declines to interpret the statute according to its plain language because
doing so, the majority believes, would result in an absurdity. I disagree. Citing to the general
principle that a court should not construe a statute in a manner that “‘leads to absurd results,’”
Bowling v. Commonwealth, 51 Va. App. 102, 109, 654 S.E.2d 354, 358 (2007) (quoting Auer v.
Commonwealth, 46 Va. App. 637, 651, 621 S.E.2d 140, 147 (2005)), the majority cobbles
together a very cogent and sound process to allow the Commonwealth to save its appeal.
Respectfully, however, I suggest that “absurdity” does not inquire as to what may be more
efficient or productive; rather, our goal in construing statutes is to “ascertain and give effect to
legislative intent.” Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983). I
submit that the legislative intent of Code § 19.2-398 was to give the Commonwealth the
decidedly unique ability to appeal certain trial court rulings in a criminal case, and, if the
Commonwealth fulfills its obligations under the statutes governing Commonwealth’s pretrial
appeals, there is no absurdity in the process created by the legislature.
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More specifically, if the Commonwealth had merely complied with the statutory scheme
created by the General Assembly to govern Commonwealth’s pretrial appeals in the instant case,
the Commonwealth would have been able to file its petition for appeal in compliance with the
statutes, and no absurdity would result. As noted earlier, Code § 19.2-405 provides, “The
transcript or written statement of facts shall be filed by the Commonwealth with the clerk of the
circuit court from which the appeal is being taken, within 25 days following entry of the order of
the circuit court.” (Emphasis added). Thus, the plain language of Code § 19.2-405 provides that
the transcript should be filed after the trial court enters its order. See Merriam-Webster’s
Collegiate Dictionary 486 (11th ed.) (defining “follow” as “to go, proceed or come after” and
“following” as “subsequent to”). Code § 19.2-405 also places the burden on the Commonwealth
to file the transcript or written statement of facts. With this duty comes the responsibility to
ensure that the transcript is timely filed, in accordance with Code § 19.2-405.7
I appreciate that the Commonwealth finds itself in a difficult position in this case because
it failed to comply with Code § 19.2-405, and, therefore, the fourteen-day period for filing the
petition for appeal found in Code § 19.2-402(B) ran before the trial court entered its order.
7
This Court has often emphasized the duty of appellants to comply with all of the
requirements for the filing of the transcript, even in difficult circumstances, outside the context
of Commonwealth’s pretrial appeals. See, e.g., Friel v. Commonwealth, No. 1346-10-2, 2011
Va. App. LEXIS 217 (Va. Ct. App. June 28, 2011) (affirming appellant’s conviction pursuant to
Rule 5A:8 where appellant failed to file a complete transcript because, “whether due to human
error or equipment failure, a portion of appellant’s trial was not recorded and, thus, could not be
transcribed by the court reporter,” and “[a]lthough nothing in the record indicate[d] this failure
was attributable to appellant, he nevertheless bore the burden of presenting on appeal a record of
the trial court proceedings sufficiently complete to allow [the Court] to determine whether the
trial court erred in the manner he claims”); Doggett v. Commonwealth, No. 1522-04-2, 2005
Va. App. LEXIS 405 (Va. Ct. App. Oct. 11, 2005) (affirming appellant’s conviction pursuant to
Rule 5A:8 where appellant failed to file a complete transcript because “[d]ue to a malfunctioning
recording device, the testimony of [three witnesses] were not recorded and are therefore not in
the record,” and “[a]lthough appellant was not responsible for the tape malfunction, he is
responsible for providing the Court with a narrative statement or statement of facts in the event a
complete transcript is unavailable”).
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However, “difficulty is not absurdity.” Bonner v. Commonwealth, 62 Va. App. 206, 216, 745
S.E.2d 162, 167 (2013) (en banc). Again, if the Commonwealth had merely complied with Code
§ 19.2-405, the difficulty in this case would have never arisen. And in my view, difficulty does
not provide legal justification for intervention. The role of the judiciary in construing statutes is
to ascertain and apply legislative intent, not to rewrite a statute through judicial interpretation.
Moreover, the concept of “unmitigated harshness” referenced by the majority must be viewed in
the eye of the beholder, and I take no position on it. I am simply suggesting that the Court
follow the well-established rule to interpret the statutes according to their plain and unambiguous
language.
Furthermore, and with respect, the majority makes the bold assertion, without citation to
any authority whatsoever, that a transcript is timely filed for purposes of Code § 19.2-405 when
it is filed before the entry of the order appealed from, a holding that directly contravenes the
plain language of Code § 19.2-405.8 In passing, the majority acknowledges the
Commonwealth’s responsibility for filing the transcript but does not hold it accountable for the
existence of the filed transcript in this case; instead, the majority simply notes that the record
does not indicate how the transcript was filed. Simply acknowledging the Commonwealth’s
statutory duties for filing the transcript without holding the Commonwealth responsible for the
filing of the transcript in this case abrogates the Commonwealth’s express obligations under
Code § 19.2-405.
The General Assembly could have included a provision in the nature of a savings clause
in Code § 19.2-402(B) that allowed the fourteen-day time period to run from the filing of the
notice of appeal in cases where the transcript is filed before the entry of the trial court’s order. It
8
In addition, the majority does not address Code § 19.2-405’s requirement that the
Commonwealth file the transcript. In this case, the record does not reveal who filed the transcript
on February 28, 2013.
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did not. Courts cannot “add language to the statute the General Assembly has not seen fit to
include.” Holsapple v. Commonwealth, 266 Va. 593, 599, 587 S.E.2d 561, 564-65 (2003).
“[N]or are they ‘permitted to accomplish the same result by judicial interpretation.’” Burlile v.
Commonwealth, 261 Va. 501, 511, 544 S.E.2d 360, 365 (2001) (quoting Harbor Cruises, Inc. v.
Commonwealth, 217 Va. 458, 461, 230 S.E.2d 248, 250 (1976)).
The Commonwealth should not benefit from its failure to comply with Code § 19.2-405
through a novel interpretation of the statutory scheme that renders the transcript and petition for
appeal timely filed in this case. There is no absurdity in applying the plain language of Code
§ 19.2-402(B) when the Commonwealth complies with all of the statutory provisions governing
Commonwealth’s pretrial appeals, including Code § 19.2-405. To suggest otherwise would be to
suggest that the particularized and unambiguous language of the statute was meant to mean
something other than what the legislature prescribed.
Finally, I note that in a plethora of cases, this Court has dismissed appeals for failure to
comply with the strict letter of the statutes or rules governing appeals. See, e.g., Evans v.
Commonwealth, 61 Va. App. 339, 735 S.E.2d 252 (2012) (dismissing appellant’s appeal
pursuant to Rule 5A:6 where appellant attempted to appeal his perjury conviction but identified
the conviction he was appealing by the wrong case file number); Woody v. Commonwealth, 53
Va. App. 188, 670 S.E.2d 39 (2008) (dismissing appellant’s appeal where he was convicted of
violating a County DUI ordinance but filed a notice of appeal on November 9, 2007, naming the
Commonwealth of Virginia as appellee, not the County, and the trial court entered an order on
October 30, 2008, in response to an order from this Court, clarifying that appellant was convicted
of violating the County DUI ordinance, not Code § 18.2-266)9; Haywood v. Commonwealth, 15
9
This Court also dismissed the same appellant’s appeal when he attempted to appeal the
trial court’s October 30, 2008 order, holding that it was not the final appealable conviction order
in the case. Woody v. Cnty. of Amherst, No. 2909-08-3, 2010 Va. App. LEXIS 286
(Va. Ct. App. July 20, 2010).
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Va. App. 297, 423 S.E.2d 202 (1992) (en banc) (dismissing the petitioner’s petition for appeal
pursuant to Rule 5A:12 where the petition was due on December 2, 1991, petitioner mailed the
petition by priority mail on November 27, 1991, the United States Postal Service erroneously
delivered the petition to the United States Court of Appeals for the Fourth Circuit, and this
Court’s clerk’s office received the petition on December 3, 1991); Anderson v. Commonwealth,
13 Va. App. 506, 413 S.E.2d 75 (1992) (dismissing an appeal pursuant to Rule 5A:8 because the
written statement of facts, endorsed by the Commonwealth’s attorney and appellant’s counsel
and signed by the trial judge, did not contain a notation showing that it was filed in the office of
the clerk of the trial court within fifty-five days after entry of judgment); Long, 7 Va. App. 503,
375 S.E.2d 368 (dismissing petitioner’s petition for appeal because it was mailed by first class
mail on the day it was due, rather than by registered or certified mail).
Here, the Commonwealth failed to comply with Code §§ 19.2-402(B) and -405. I would
not construe these statutes other than by their plain language in order to render the
Commonwealth’s petition for appeal timely filed. Accordingly, I dissent from the majority’s
holding that the Commonwealth’s petition for appeal was timely filed.
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