Bennie Ward, Jr. v. City of Virginia Beach ( 1996 )


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  •                      COURT OF APPEALS OF VIRGINIA
    Present: Judges Baker, Annunziata and Senior Judge Hodges
    Argued at Norfolk, Virginia
    BENNIE WARD, JR.
    v.           Record No. 1316-95-1        MEMORANDUM OPINION * BY
    JUDGE ROSEMARIE ANNUNZIATA
    CITY OF VIRGINIA BEACH                        MAY 14, 1996
    FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
    Alan E. Rosenblatt, Judge
    A. Robinson Winn (Winn & Jankell, on brief),
    for appellant.
    Nianza E. Wallace II, Assistant City Attorney
    (Richard J. Beaver, Assistant City Attorney;
    Office of the City Attorney, on brief), for
    appellee.
    Appellant, Bennie Ward, Jr., was convicted in the general
    district court of one count of DUI, second offense.    In circuit
    court, appellant pled guilty to a misdemeanor second offense DUI.
    The court found appellant guilty and sentenced him to sixty days
    in jail with fifty-eight days suspended, suspended his license
    for three years, and fined him $350.    On appeal, appellant
    contends the trial court erred in accepting his guilty plea
    because the court did not afford him the opportunity to waive his
    right to a jury trial.
    A trial court's ruling will not be considered as a basis for
    reversal on appeal "unless the objection was stated together with
    the grounds therefor at the time of the ruling."    Rule 5A:18.     It
    *
    Pursuant to Code § 17-116.010 this opinion is not
    designated for publication.
    is well established that this Court will not consider an issue on
    appeal for which no "specific contemporaneous objection" was made
    at trial.   E.g., Rodriguez v. Commonwealth, 
    18 Va. App. 277
    ,
    284, 
    443 S.E.2d 419
    , 424 (1994) (en banc), aff'd, 
    249 Va. 203
    ,
    
    454 S.E.2d 725
    (1995).    An objection is sufficient if a party
    "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."     Campbell v. Commonwealth, 
    12 Va. App. 476
    ,
    480, 
    405 S.E.2d 1
    , 2 (1991) (en banc) (citation omitted).    "A
    matter not in dispute before the trial court will not be
    considered for the first time on appeal."     Connelly v.
    Commonwealth, 
    14 Va. App. 888
    , 891, 
    420 S.E.2d 244
    , 246 (1992).
    On appeal,
    the judgment of the lower court is presumed
    to be correct and the burden is on the
    appellant to present to [the reviewing court]
    a sufficient record from which [it] can
    determine whether the lower court has erred
    in the respect complained of. If the
    appellant fails to do this, the judgment will
    be affirmed.
    Smith v. Commonwealth, 
    16 Va. App. 630
    , 635, 
    432 S.E.2d 2
    , 6
    (1993) (quoting Justis v. Young, 
    202 Va. 631
    , 632, 
    119 S.E.2d 255
    , 256-57 (1961)).    An appellate court may act only on the
    facts contained in the record and "cannot base its decision upon
    appellant's petition or brief, or statement of counsel in open
    court."   
    Id. Here, the record
    shows merely that appellant appeared before
    the court, in person, and by counsel, that he pled guilty, was
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    found guilty by the court, and was sentenced accordingly.    The
    record does not disclose that appellant objected to the court's
    acceptance of his plea without giving him the opportunity to
    waive his right to a jury trial.   Moreover, assuming, without
    deciding, that the court was required to afford appellant the
    opportunity to waive his right to trial by jury before accepting
    his plea, the record appellant presents is insufficient to
    establish that the trial court failed to do so.
    Accordingly, appellant's conviction is affirmed.
    Affirmed.
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