John L. Harnois, Sr. v. Commonwealth of Virginia ( 2011 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Huff and Senior Judge Clements
JOHN L. HARNOIS, SR.
MEMORANDUM OPINION *
v. Record No. 1852-10-1 PER CURIAM
SEPTEMBER 27, 2011
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Edward W. Hanson, Jr., Judge
(John L. Harnois, Sr., pro se, on brief).
No brief for appellee.
John L. Harnois, Sr. appeals an August 19, 2010 order from the trial court denying his
“Petition to Void Orders and Convictions Therefrom.” Appellant sought to void all protective
orders entered from January 17, 2001 through July 9, 2010 and “all convictions from or allegations
of violations thereof.” On appeal, he lists eleven assignments of error.1 He argues, generally, that
the trial court erred by concluding that the juvenile and domestic relations district court (JDR court)
had jurisdiction over the entry and enforcement of the protective orders after the parties filed for
divorce in the trial court. In addition, he argues that the trial court erred by not appointing him a
guardian ad litem, ruling on his motion without hearing evidence or argument, failing to consider
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Appellant also lists twelve questions presented. Effective July 1, 2010, Rule 5A:20(c)
was revised to state that appellant’s opening brief shall contain a “statement of the assignments
of error with a clear and exact reference to the page(s) of the transcript, written statement, record,
or appendix where each assignment of error was preserved in the trial court.” Pursuant to the
revised rules, this Court considers only assignments of error and, as such, will not consider the
additional issues listed as questions presented. We find that this failure to comply with Rule
5A:20 is significant. Jay v. Commonwealth, 275 Va. 510, 520, 659 S.E.2d 311, 317 (2008).
the whole record before making its decision, entering the order without complying with the notice
requirements of Rule 1:13, and failing to recuse itself or change venue. Upon reviewing the record
and opening brief, we conclude that this appeal is without merit. Accordingly, we summarily affirm
the decision of the trial court. See Rule 5A:27.
Protective orders
Appellant argues that the trial court erred when it concluded that the JDR court had
jurisdiction to enter and enforce the protective orders, when the parties filed for divorce in the trial
court.
“We have many times pointed out that on appeal the judgment of
the lower court is presumed to be correct and the burden is on the
appellant to present to us a sufficient record from which we 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)).
“[A]n appellate court’s review of the case is limited to the record on appeal.” Turner v.
Commonwealth, 2 Va. App. 96, 99, 341 S.E.2d 400, 402 (1986). An appellant has the
responsibility to provide a complete record to the appellate court. Twardy v. Twardy, 14
Va. App. 651, 658, 419 S.E.2d 848, 852 (1992) (en banc). “Even pro se litigants must comply
with the rules of court.” Francis v. Francis, 30 Va. App. 584, 591, 518 S.E.2d 842, 846 (1999).
The record contains only appellant’s “Petition to Void Orders and Convictions
Therefrom,” a notice regarding the petition, the trial court’s August 19, 2010 order denying the
petition, appellant’s “Motions to Vacate, Rehear, Reconsider, Recuse and Change Venue” and
notice, appellant’s “Supplemental Motion to Vacate/Rehear,” the trial court’s September 9, 2010
order denying the motions to reconsider and vacate, for recusal, and change of venue, and
-2-
appellant’s notice of appeal. The record does not contain copies of the JDR protective orders and
the trial court’s orders from the divorce.
Since appellant is asking that this Court review the JDR protective orders and subsequent
conviction orders, along with the pendente lite orders, appellant had the burden to ensure that such
documents were included in the record. Providing some of the relevant documents in the appendix
is not sufficient, for it does not appear that these documents were presented to the trial court.
Appellant failed to provide us with an adequate record to enable us to address his assignments of
error. Therefore, we affirm the judgment of the trial court.
Appointment of a Guardian ad Litem
Appellant argues that the trial court erred in failing to appoint a guardian ad litem for
him.
A person under a disability, including a convicted felon who is incarcerated, shall be
appointed a guardian ad litem when he is a “party defendant.” Code § 8.01-9(A). Appellant is
not a “party defendant” in this case, and Code § 8.01-9 “is not concerned with the capacity of a
person under a disability to sue but with the protection of such person when named as a
defendant in a lawsuit.” Cook v. Radford Cmty. Hosp., 260 Va. 443, 449, 536 S.E.2d 906, 909
(2000). “The filing of a lawsuit is an affirmative act on the part of a plaintiff and does not carry
with it the need for the type of court-initiated protection which may exist when a person with a
disability is required to defend himself in litigation that he did not instigate . . . .” Id.
Furthermore, appellant provided no legal authority to support his argument. See Rule
5A:20(e).
Accordingly, the trial court’s ruling is affirmed.
-3-
Merits and Record
Appellant argues that the trial court erred in not allowing him to argue the merits of his
case and not considering the whole record before making its ruling.
Rule 5A:20(e) mandates that appellant’s opening brief include “[t]he standard of review
and the argument (including principles of law and authorities) relating to each assignment of
error.”
Appellant did not comply with Rule 5A:20(e) because his opening brief does not contain
any principles of law, or citation to legal authorities, or the record to fully develop his arguments.
In fact, aside from asserting the assignment of error, appellant fails to address the assignment in
his brief.
Appellant has the burden of showing that reversible error was committed. See Lutes v.
Alexander, 14 Va. App. 1075, 1077, 421 S.E.2d 857, 859 (1992). Unsupported assertions of
error “do not merit appellate consideration.” Buchanan v. Buchanan, 14 Va. App. 53, 56, 415
S.E.2d 237, 239 (1992).
We find that appellant’s failure to comply with Rule 5A:20(e) is significant, so we will
not consider these issues. See Fadness v. Fadness, 52 Va. App. 833, 851, 667 S.E.2d 857, 866
(2008) (“If the parties believed that the circuit court erred, it was their duty to present that error
to us with legal authority to support their contention.”); Parks v. Parks, 52 Va. App. 663, 664,
666 S.E.2d 547, 548 (2008).
Rule 1:13
Appellant argues that the trial court erred when it entered the August 19, 2010 order without
complying with the notice requirements of Rule 1:13. Appellant acknowledges that the issue was
not preserved pursuant to Rule 5A:18, but asks this Court to consider it under the ends of justice
exception.
-4-
We “will not consider an argument on appeal which was not presented to the trial court.”
Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). “The purpose of
Rule 5A:18 is to allow the trial court to correct in the trial court any error that is called to its
attention.” Lee v. Lee, 12 Va. App. 512, 514, 404 S.E.2d 736, 737 (1991) (en banc).
“In order to avail oneself of the exception, a defendant must affirmatively show that a
miscarriage of justice has occurred, not that a miscarriage might have occurred.” Redman v.
Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (emphasis added).
Here, appellant did not argue how the trial court erred, nor did he show that a miscarriage
of justice occurred. Appellant clearly had notice of the entry of the August 19, 2010 order, as he
filed a motion to reconsider and a notice of appeal.
Recusal of judge
Appellant argues that the trial court erred by not recusing itself. 2 Appellant contends the
trial court was biased because it heard other cases relating to the protective orders and appellant’s
divorce.
“[T]he party moving for recusal of a judge has the burden of proving the judge’s bias or
prejudice.” Commonwealth v. Jackson, 267 Va. 226, 229, 590 S.E.2d 518, 519-20 (2004). In
considering a motion to recuse, “[a] trial judge must exercise reasonable discretion to determine
whether he possesses such bias or prejudice as would deny the defendant a fair trial.” Justus v.
Commonwealth, 222 Va. 667, 673, 283 S.E.2d 905, 908 (1981) (citing Slayton v. Commonwealth,
185 Va. 371, 376, 38 S.E.2d 485, 488 (1946)).
2
Appellant also stated in his assignment of error that the trial court erred in not changing
the venue, but he did not develop this argument in his brief, instead focusing on the issue of
whether the judge should have recused himself. See Rule 5A:20. Accordingly, we will not
consider the change of venue issue.
-5-
“‘Merely because a trial judge is familiar with a party and his legal difficulties through prior
judicial hearings . . . does not automatically or inferentially raise the issue of bias.’” Deahl v.
Winchester Dep’t of Soc. Servs., 224 Va. 664, 672-73, 299 S.E.2d 863, 867 (1983) (quoting Barry
v. Sigler, 373 F.2d 835, 836 (8th Cir. 1967)).
Here, appellant did not meet his burden to prove that the trial court was biased or prejudiced
against him. The trial court did not abuse its discretion in refusing to recuse itself.
Conclusion
For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27.
Affirmed.
-6-