Maurice Dontrell Boykins v. Commonwealth of Virginia ( 2017 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Alston, Chafin and Decker
Argued at Norfolk, Virginia
MAURICE DONTRELL BOYKINS
MEMORANDUM OPINION* BY
v. Record No. 1487-16-1 JUDGE TERESA M. CHAFIN
JUNE 6, 2017
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Robert H. Sandwich, Jr., Judge
Thomas H. Sheppard, II (Sheppard Law, P.L.C., on brief), for
appellant.
Craig W. Stallard, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
At the conclusion of a bench trial held in the Circuit Court of the City of Suffolk,
Maurice Dontrell Boykins was convicted of multiple offenses based on his involvement in a
gunfight at a shopping center.1 On appeal, Boykins challenges the sufficiency of the evidence
supporting his convictions. Boykins contends that the evidence presented by the Commonwealth
failed to establish that he participated in the gunfight.2 Additionally, he argues that the evidence
presented at trial failed to support his conviction for maliciously shooting into an occupied
building in violation of Code § 18.2-279 because it did not prove that he actually caused any
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Specifically, Boykins was convicted of malicious wounding, attempted murder, two
counts of use of a firearm in the commission of a felony, reckless handling of a firearm,
maliciously shooting into an occupied building, unlawful shooting in the commission of a felony,
and misdemeanor destruction of property.
2
We have paraphrased and re-ordered Boykins’s assignments of error so that we may
more efficiently address them in this appeal.
damage to the building in question. In a third assignment of error, Boykins challenges the
sentence imposed by the circuit court for his attempted murder conviction, arguing that the
imposed sentence exceeded the maximum sentence allowed by statute. For the reasons that
follow, we affirm Boykins’s convictions and remand this case for the correction of clerical errors
regarding Boykins’s sentences.
I. BACKGROUND
“In accordance with established principles of appellate review, we state the facts in the
light most favorable to the Commonwealth, the prevailing party in the trial court[, and] accord
the Commonwealth the benefit of all inferences fairly deducible from the evidence.” Riner v.
Commonwealth, 268 Va. 296, 303, 601 S.E.2d 555, 558 (2004). So viewed, the evidence is as
follows.
A. THE GUNFIGHT AND RELEVANT EVIDENCE
The victim in the present case was attacked at an outdoor shopping center on the night of
December 20, 2013.3 As the victim walked along the sidewalk of the shopping center, an
individual rushed him from behind and shot at him. Although the victim initially ran from his
assailant, he eventually drew his own firearm from a holster on his hip and fired approximately
seven shots at him. The assailant fled after exchanging gunfire with the victim in the parking lot
of the shopping center. The victim was shot in his right arm during the course of the gunfight.
The victim initially identified Boykins as his assailant, and attributed the attack to an
argument that he had with Boykins earlier that day. At Boykins’s trial, however, the victim
testified that Boykins was not the assailant. Although the victim acknowledged that he suffered
from memory loss due to injuries that he sustained after the gunfight, he claimed that he knew
Boykins did not shoot him.
3
The shopping center was described as a “strip mall” by various witnesses.
‐ 2 ‐
An employee at a restaurant located in the shopping center testified that she heard
gunshots outside of the building around 9:00 p.m. on the night of the gunfight. The employee
testified that approximately ten people were inside the restaurant when the shooting occurred.
Following the shooting, the employee saw holes in the window of the restaurant that were not
there before the shooting started. The employee explained that police officers arrived later that
evening and collected “bullets” from a toy box located in the restaurant. While the employee
heard gunshots outside of the building and observed the damage to the window of the restaurant,
she could not identify the individuals involved in the gunfight.
After the shooting, the police obtained a video recording from a security camera at the
shopping center that showed the beginning of the gunfight. The recording showed an individual
wearing a green hooded shirt with white stripes on its sleeves shoot at the victim and chase him
down the sidewalk of the shopping center.
A detective from the Suffolk Police Department was at a nearby hospital investigating an
unrelated offense on the night of the shooting. While waiting in the emergency department of
the hospital, the detective saw Boykins come into the hospital with what appeared to be a
gunshot wound to his left arm. Although the detective was not aware of the recent gunfight at
the shopping center, he approached Boykins and asked him how he had been injured. In
response, Boykins stated: “I don’t have anything to say. Anything you need to know is probably
on a video at the shopping center.” A test performed by another detective while Boykins was at
the hospital eventually revealed the presence of primer residue on both of Boykins’s hands.4
With the permission of Boykins’s stepmother, police officers searched her apartment for
evidence related to the gunfight. Although the police officers conducting the search did not find
4
A forensic scientist testified that primer residue is also commonly referred to as
“gunshot” residue.
‐ 3 ‐
a firearm in the apartment, they found a green hooded sweatshirt with white stripes on its
sleeves. Notably, the shirt had a round hole in its left sleeve in the same area where Boykins had
been shot in his arm. Boykins’s stepmother admitted that he came to her apartment after he had
been shot and removed his shirt, but she stated that she could not remember which shirt he was
wearing on the night in question. She claimed, however, that the green shirt did not belong to
Boykins.
In his defense, Boykins testified that he was not involved in the gunfight at the shopping
center. He also denied that the green sweatshirt belonged to him. Boykins explained that he was
shot by an unidentified man on the night of the gunfight after he was caught having sex with the
man’s wife. Additionally, Boykins explained that he made the statements about the video at the
shopping center because other police officers at the hospital had already questioned him about
the gunfight. Boykins admitted that he never told the police officers investigating the gunfight
about the alleged cause of his injuries, and his paramour did not testify at trial. Boykins also
admitted that he had been convicted of multiple felonies.
B. THE TRIAL PROCEEDINGS
At Boykins’s trial, the Commonwealth presented testimony from various witnesses
establishing the aforementioned facts. Additionally, the green sweatshirt found at the home of
Boykins’s stepmother and the video recording of the beginning of the gunfight were admitted
into evidence. Although the restaurant employee testified that the police recovered “bullets”
from the restaurant, the Commonwealth did not provide any expert testimony regarding the
forensic analysis of those objects. Furthermore, the Commonwealth failed to present any
testimony regarding the positioning of the gunfight participants, the potential trajectory of their
gunshots, or the specific location of the restaurant in the shopping center.
‐ 4 ‐
At the conclusion of the Commonwealth’s evidence, Boykins moved to strike the
evidence against him on multiple grounds. Boykins challenged each of the charges against him
by arguing that the evidence presented failed to establish that he perpetrated the offenses. The
circuit court denied Boykins’s motion to strike based on that argument.
In the alternative, Boykins challenged the malicious shooting charge by arguing that the
evidence failed to prove that the gunshots he may have fired during the gunfight actually struck
the restaurant.5 Specifically, Boykins contended that “there was never any testimony as to who
actually was shooting at the building, even if you accept the Commonwealth’s case.” The
Commonwealth responded that Boykins should be held accountable for the gunshots fired into
the restaurant because he was “the catalyst for every activity that occurred” at the shopping
center and that the actions taken by the victim while defending himself were “foreseeable
consequences” of Boykins’s attack. Boykins did not respond to this argument. The circuit court
agreed with the Commonwealth and denied the motion to strike as it pertained to the malicious
shooting charge, explaining that “while it wasn’t specifically mentioned who in particular was
the one whose bullets might have struck the [restaurant,] I think that is a foreseeable
consequence of shooting in the parking lot.”6
After presenting defense evidence, Boykins renewed his motion to strike. Boykins
incorporated the arguments from his previous motion to strike to support his renewed motion
without offering any additional argument or responding to the Commonwealth’s theory of
5
This argument did not extend to Boykins’s misdemeanor destruction of property charge,
as that charge was based on damage to a vehicle parked in the parking lot of the shopping center
rather than the restaurant.
6
The circuit court granted Boykins’s motion to strike as it pertained to a second
malicious shooting charge because the Commonwealth’s evidence only established that one
building was damaged during the gunfight.
‐ 5 ‐
criminal liability. The circuit court denied the renewed motion to strike without hearing
additional argument from the Commonwealth.
In their closing arguments, the Commonwealth and Boykins focused on the
circumstantial evidence linking Boykins to the shooting. Neither party referred to Boykins’s
prior argument regarding the malicious shooting charge. After hearing the parties’ closing
arguments, the circuit court convicted Boykins of the offenses at issue in this appeal. Although
the circuit court provided a detailed ruling from the bench addressing the sufficiency of the
evidence proving that Boykins attacked the victim at the shopping center, the circuit court did
not specifically address the lack of evidence establishing which of the two men actually shot into
the restaurant.
C. THE SENTENCING PROCEEDINGS
On October 5, 2015, the parties reappeared before the circuit court for Boykins’s
sentencing hearing. At the conclusion of the hearing, the circuit court orally pronounced the
sentences imposed for each of Boykins’s convictions. Among other sentences not challenged in
this appeal, the circuit court orally imposed a sentence of ten years of incarceration with five
years suspended for Boykins’s malicious wounding conviction and twenty years of incarceration
with ten years suspended for Boykins’s attempted murder conviction.
The circuit court entered sentencing orders pertaining to Boykins’s convictions the
following day. The sentences imposed in the orders for Boykins’s malicious wounding and
attempted murder convictions, however, did not correspond with the sentences for those
convictions pronounced orally at the sentencing hearing. Rather, the sentencing orders stated
that Boykins was sentenced to twenty years of incarceration with ten years suspended for the
malicious wounding conviction and ten years of incarceration with five years suspended for the
attempted murder conviction.
‐ 6 ‐
On November 4, 2015, the circuit court held a second hearing regarding Boykins’s
malicious wounding and attempted murder convictions. At that hearing, the circuit court
explained that it misspoke when it orally pronounced Boykins’s sentences for those convictions
at the original sentencing hearing. Specifically, the circuit court judge told Boykins that, “I
misspoke and I actually sentenced you on the attempted murder for what I was trying to sentence
you to on the malicious wounding.” The circuit court then explained that the October 6, 2015
sentencing orders correctly reflected the sentences that it intended to impose for the two
convictions.
The circuit court entered an order memorializing the second hearing on November 6,
2015. That order, however, incorrectly stated the holding that the circuit court articulated from
the bench on November 4, 2015. Although the circuit court expressly clarified that it intended to
sentence Boykins consistently with the October 6, 2015 sentencing orders, the November 6, 2015
order stated that the circuit court advised Boykins that the sentence imposed for his malicious
wounding conviction “is now [ten] years with [five] years suspended and that the sentence
imposed in the charge of [a]ttempted [m]urder, . . . is now [twenty] years with [ten] years
suspended . . . .”
II. ANALYSIS
Boykins presents three assignments of error for appellate review. Two of those
assignments challenge the sufficiency of the evidence supporting his convictions. First, he
argues that the evidence presented by the Commonwealth failed to establish that he was the
perpetrator of the charged offenses. Alternatively, he contends that the evidence did not
establish that he actually shot into the restaurant that was damaged during the gunfight, and
therefore, it was insufficient to support his conviction for maliciously shooting into an occupied
building in violation of Code § 18.2-279. In his third assignment of error, Boykins maintains
‐ 7 ‐
that the circuit court erroneously imposed a sentence that exceeded the maximum sentence
allowed by statute for his attempted murder conviction.
For the reasons that follow, we conclude that the evidence presented in this case was
sufficient to establish that Boykins attacked the victim at the shopping center and initiated the
gunfight that occurred there. We also conclude that Boykins is procedurally barred from
pursuing his second assignment of error. Furthermore, while we agree with Boykins that the
November 6, 2015 order referred to an excessive sentence pertaining to his attempted murder
conviction, we conclude that it did so as the result of clerical error. Accordingly, we remand this
case for the correction of that error pursuant to Code § 8.01-428.
A. THE EVIDENCE WAS SUFFICIENT TO ESTABLISH THAT BOYKINS INITIATED
THE GUNFIGHT AND SHOT THE VICTIM
When considering the sufficiency of the evidence on appeal, we “presume the judgment
of the trial court to be correct” and reverse only if the trial court’s decision is “plainly wrong or
without evidence to support it.” Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875,
876-77 (2002); see also McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259,
261 (1997) (en banc). Under this standard, “a reviewing court does not ‘ask itself whether it
believes that the evidence at the trial established guilt beyond a reasonable doubt.’” Crowder v.
Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003) (quoting Jackson v. Virginia,
443 U.S. 307, 318-19 (1979)). It asks instead whether “any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Kelly v. Commonwealth,
41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (emphasis added) (quoting Jackson,
443 U.S. at 319). We do not “substitute our judgment for that of the trier of fact” even if our
opinion were to differ. Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162
(2002). “This familiar standard gives full play to the responsibility of the trier of fact fairly to
‐ 8 ‐
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts.” Jackson, 443 U.S. at 319.
Generally, there are two types of evidence presented during
a trial - direct evidence and circumstantial evidence. Direct
evidence is offered to prove as a fact the point in issue.
Circumstantial evidence, by contrast, is offered to prove a fact not
directly in issue, from which a fact in issue may reasonably be
inferred.
There is no distinction in the law between the weight or
value to be given to either direct or circumstantial evidence. The
finder of fact is entitled to consider all of the evidence, without
distinction, in reaching its determination.
Commonwealth v. Hudson, 265 Va. 505, 512-13, 578 S.E.2d 781, 785 (2003).
“Circumstantial evidence is not viewed in isolation. ‘While no single piece of evidence
may be sufficient, the combined force of many concurrent and related circumstances, each
insufficient in itself, may lead a reasonable mind irresistibly to a conclusion.’” Id. at 514, 578
S.E.2d at 786 (quoting Derr v. Commonwealth, 242 Va. 413, 425, 410 S.E.2d 662, 669 (1991)).
In the present case, the combination of direct and circumstantial evidence presented by
the Commonwealth amply supported the circuit court’s conclusion that Boykins was the
perpetrator of the offenses at issue. Boykins was linked to the shooting by the initial
identification of the victim, his clothing, his wounds, the presence of primer residue on his
hands, and his own statements to the police.
The video recording showing the beginning of the gunfight at the shopping center
showed an individual in a hooded green shirt with white stripes on its sleeves shoot at the victim
and chase him down the sidewalk. A gunfight between the assailant and the victim followed.
Although the victim testified differently at trial, he initially identified Boykins as his assailant
and attributed the cause of the attack to an argument he had with Boykins earlier that day.7
7
The circuit court questioned the victim’s motivation for changing his identification of
the assailant, and expressly stated that it did not believe all of the victim’s testimony at trial
‐ 9 ‐
Boykins was found at a nearby hospital seeking treatment for a gunshot wound in his arm
shortly after the gunfight at the shopping center occurred, and the primer residue found on his
hands implied that he had recently shot a firearm or been in close proximity to someone who had
done so. Moreover, Boykins made statements to a detective at the hospital that linked him to the
shooting. When the detective asked Boykins how he had been injured without referencing the
gunfight at the shopping center, Boykins told him that everything he needed to know was
“probably on a video at the shopping center,” implying that he had been injured in the gunfight
that occurred there.
Furthermore, a distinctive shirt similar to the one worn by the shooter in the recording
was found at Boykins’s stepmother’s home later that evening. Boykins’s stepmother testified
that he had taken off his shirt at her home after he was shot that evening, and the green hooded
shirt had a round hole in its sleeve corresponding to the location of Boykins’s gunshot wound.
Although Boykins’s stepmother claimed that the shirt did not belong to Boykins, her testimony
did not negate the possibility that he had been wearing it earlier that evening.
While Boykins testified that he was not involved in the shooting, the circuit court was at
liberty to discount his self-serving statements. See Armstead v. Commonwealth, 56 Va. App.
569, 581, 695 S.E.2d 561, 567 (2010). “[D]etermining the credibility of the witnesses and the
weight afforded the testimony of those witnesses are matters left to the trier of fact.” Parham v.
Commonwealth, 64 Va. App. 560, 565, 770 S.E.2d 204, 207 (2015). Although Boykins claimed
at trial that he was shot by someone else at a different location on the night in question, he never
informed the police of the alleged alternative cause of his injuries during their investigation and
because he contradicted himself several times. “The trier of fact is not required to accept a
party’s evidence in its entirety, but is free to believe or disbelieve, in whole or in part, the
testimony of any witness.” English v. Commonwealth, 43 Va. App. 370, 371, 598 S.E.2d 322,
323 (2004).
‐ 10 ‐
failed to present any independent evidence corroborating the alibi he asserted at trial.
Additionally, his attempts to explain the statements he made to the detective about the shopping
center conflicted with the detective’s testimony. The detective testified that he spoke to Boykins
shortly after he saw him come into the hospital, suggesting that Boykins had not spoken to other
police officers at the hospital before he spoke to the detective. Under these circumstances, the
circuit court understandably rejected Boykins’s testimony.
In summary, the evidence presented by the Commonwealth was sufficient to permit the
circuit court to conclude that Boykins initiated the gunfight at the shopping center and shot the
victim. As Boykins only challenged the majority of his convictions on the ground that the
evidence failed to establish that he was the perpetrator of the offenses, we affirm the convictions
on which appellate review was limited to this issue. Accordingly, we affirm Boykins’s
convictions of malicious wounding, attempted murder, two counts of use of a firearm in the
commission of a felony, reckless handling of a firearm, unlawful shooting in the commission of a
felony, and misdemeanor destruction of property.
B. BOYKINS WAIVED HIS ASSIGNMENT OF ERROR PERTAINING TO HIS
MALICIOUS SHOOTING CONVICTION
On appeal, Boykins contends that the evidence presented by the Commonwealth was
insufficient to establish that he maliciously shot into an occupied building in violation of Code
§ 18.2-279. While Boykins generally contends that the evidence failed to establish that he was
the perpetrator of all of the offenses for which he was convicted, he presents a separate challenge
regarding his malicious shooting conviction. Citing the lack of expert testimony regarding the
forensic analysis of the objects recovered from the restaurant and the lack of any testimony
regarding the positioning of the gunfight participants and the trajectory of their gunfire, Boykins
argues that the Commonwealth’s evidence failed to prove that he actually fired a gunshot into the
restaurant damaged during the gunfight. Given the Commonwealth’s evidence, Boykins
‐ 11 ‐
contends that it was equally probable that the gunshots fired by the victim caused the damage to
the restaurant. Boykins then argues that he cannot be held responsible for the victim’s negligent
acts.
As a preliminary matter, the Commonwealth contends that Boykins did not adequately
preserve his argument concerning this issue. We agree.
Rule 5A:18 states, in pertinent part, “No ruling of the trial court . . . will be considered as
a basis for reversal unless an objection was stated with reasonable certainty at the time of the
ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of
justice.”
Under this rule, a specific argument must be made to the trial court
at the appropriate time, or the allegation of error will not be
considered on appeal. A general argument or an abstract reference
to the law is not sufficient to preserve an issue. Making one
specific argument on an issue does not preserve a separate legal
point on the same issue for review.
Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en banc)
(citations omitted).
Although Boykins made a specific motion to strike arguing that the Commonwealth’s
evidence failed to establish that he actually damaged the restaurant, the Commonwealth contends
that Boykins waived his appellate argument by failing to expressly challenge the theory of
liability argued by the Commonwealth in response to his motion. After Boykins asserted that the
Commonwealth had failed to prove that he actually fired the gunshots that damaged the
restaurant, the Commonwealth argued that Boykins should be held accountable for any gunshots
the victim may have fired into the restaurant because the victim’s acts of self-defense were
“foreseeable consequences” of Boykins’s attack. The circuit court accepted this theory, and
explained that “while it wasn’t specifically mentioned who in particular was the one whose
‐ 12 ‐
bullets might have struck the [restaurant,] I think that is a foreseeable consequence of shooting in
the parking lot.”
While the circuit court did not mention the proximate causation theory when it convicted
Boykins of the malicious shooting offense, the record supports the inference that the circuit court
relied on that theory of liability. As the Commonwealth’s evidence failed to prove that Boykins
actually fired a gunshot into the restaurant, the circuit court must have based his conviction on
the proximate causation theory that it previously accepted when the Commonwealth presented it
in response to Boykins’s initial motion to strike.
The principles of proximate causation on which the Commonwealth and the circuit court
apparently relied have never been addressed in the context of Code § 18.2-279 by an appellate
court of Virginia. These principles are typically applied in involuntary manslaughter cases. See,
e.g., Brown v. Commonwealth, 278 Va. 523, 685 S.E.2d 43 (2009); Gallimore v.
Commonwealth, 246 Va. 441, 436 S.E.2d 421 (1993). On appeal, however, Boykins does not
contend that these principles are inapplicable to the present case.
In his appellate brief, Boykins quotes Hawkins v. Commonwealth, 64 Va. App. 650, 655,
770 S.E.2d 787, 789 (2015), to acknowledge that “[t]he concept of proximate causation is
‘applicable in both civil and criminal cases.’” He then expressly concedes that he was
responsible for the foreseeable consequences of his criminal negligence. Nevertheless, Boykins
argues that the actions taken by the victim in this case were unforeseeable, intervening events
that broke “any causal connection between his criminal negligence and the ultimate injury.”
We acknowledge that “[o]ur fidelity to the uniform application of law precludes us from
accepting concessions of law made on appeal.” Logan v. Commonwealth, 47 Va. App. 168, 172,
622 S.E.2d 771, 773 (2005) (en banc). For that reason, we expressly state that we reach no
opinion as to whether the principles of proximate causation apply under the circumstances of this
‐ 13 ‐
case. As Boykins failed to raise any argument in the circuit court pertaining to the principles of
proximate causation or make any objections on that basis, however, we conclude that he has
waived this issue for appellate review.
Regardless of its propriety or impropriety, the decision of the circuit court based on
proximate causation principles constituted an alternate theory supporting Boykins’s conviction.
Although Boykins argued that the evidence failed to prove that he actually damaged the
restaurant, the circuit court concluded that it did not matter whether Boykins or the victim
damaged the restaurant because such damage was a foreseeable consequence of Boykins’s
attack. Boykins failed to respond to the Commonwealth’s argument advocating this approach in
his motions to strike or closing argument, and he never objected to the circuit court’s decision on
these grounds. Moreover, he never argued that the actions of the victim constituted an
unforeseeable, intervening event that relieved him of criminal liability.
In light of the lack of evidence establishing the identity of the individual that actually
fired gunshots into the restaurant, the proximate causation theory of liability argued by the
Commonwealth and relied on by the circuit court was central to Boykins’s malicious shooting
conviction. Boykins’s argument concerning the Commonwealth’s failure to prove that he
actually shot into the restaurant, however, does not encompass the proximate causation theory of
liability (i.e., that Boykins was responsible for the actions of the victim because they were
foreseeable consequences of his criminal conduct). As Boykins failed to object to the circuit
court’s application of proximate causation principles at trial or argue that those principles were
inapplicable to his case as a matter of law, we conclude that Boykins has waived the issues
presented in his second assignment of error. Accordingly, we affirm his conviction of
maliciously shooting into an occupied building in violation of Code § 18.2-279.
‐ 14 ‐
C. THE NOVEMBER 6, 2015 ORDER INCORRECTLY STATED BOYKINS’S SENTENCES
FOR MALICIOUS WOUNDING AND ATTEMPTED MURDER
Boykins contends that the November 6, 2015 order erroneously imposed a sentence that
exceeded the maximum sentence permitted by statute for his attempted murder conviction. We
agree that the order referred to an excessive sentence. Attempted murder is a Class 4 felony
punishable by a term of up to ten years of incarceration. See Code §§ 18.2-10, 18.2-26, and
18.2-32. The November 6, 2015 order, however, stated that the circuit court advised Boykins
that “the sentence imposed in the charge of [a]ttempted [m]urder, . . . is now [twenty] years with
[ten] years suspended . . . .”8
Although the November 6, 2015 order referred to an excessive sentence regarding
Boykins’s attempted murder conviction, we conclude that this reference was a clerical error.9
8
On appeal, Boykins concedes that he failed to object to the imposition of this sentence
and requests us to review the issue pursuant to the ends of justice exception to Rule 5A:18. We
acknowledge that the ends of justice exception would permit us to review this issue despite
Boykins’s failure to object to the sentence before the circuit court. See, e.g., Gordon v.
Commonwealth, 61 Va. App. 682, 685, 739 S.E.2d 276, 278 (2013) (holding that the imposition
of an excessive sentence justifies the application of the ends of justice exception to Rule 5A:18).
9
While we conclude that the excessive sentence referenced in the November 6, 2015
order was clerical error, we note that the circuit court did not have the authority to substantively
modify Boykins’s sentences when it entered the erroneous order. Pursuant to Rule 1:1, the
circuit court could not modify the sentencing orders more than twenty-one days after the date on
which they were entered. See Rule 1:1. In the present case, the November 6, 2015 order was
entered thirty days after the sentencing orders were entered. Although Code § 19.2-303 provides
an exception to Rule 1:1 and would have permitted the circuit court to modify Boykins’s
sentences if he had not been transferred to a receiving unit of the Department of Corrections, see
Code § 19.2-303, the record failed to establish whether Boykins had been transferred to the
Department of Corrections by November 6, 2015.
Notwithstanding the limitations provided by Rule 1:1, the circuit court also could not
modify Boykins’s sentences on November 6, 2015 because Boykins had already filed his notice
of appeal with this Court. Subject to limited exceptions not applicable here, “[w]hen a party files
a notice of appeal, that notice ‘effectively transfers jurisdiction from the lower court to the
appellate court and places the named parties within the jurisdiction of the appellate court.’”
McCoy v. McCoy, 55 Va. App. 524, 528, 687 S.E.2d 82, 84 (2010) (quoting Watkins v. Fairfax
Cty. Dep’t of Family Servs., 42 Va. App. 760, 771, 595 S.E.2d 19, 25 (2004)); see Velazquez v.
Commonwealth, 292 Va. 603, 613-15, 791 S.E.2d 556, 560-61 (2016) (discussing a statutory
‐ 15 ‐
While the order stated that Boykins was sentenced to twenty years of incarceration for his
attempted murder conviction, the record in this case clearly established that the circuit court
intended to sentence Boykins to ten years of incarceration for that offense. At the hearing
preceding the November 6, 2015 order, the circuit court explained that it had misspoken at
Boykins’s original sentencing hearing and inadvertently interchanged the sentences for
Boykins’s malicious wounding and attempted murder convictions. The circuit court then
explained that it intended to impose the sentences stated in Boykins’s sentencing orders: twenty
years of incarceration with ten years suspended for the malicious wounding conviction and ten
years of incarceration with five years suspended for the attempted murder conviction.
Code § 8.01-428(B) provides that:
Clerical mistakes in all judgments or other parts of the record and
errors therein arising from oversight or from an inadvertent
omission may be corrected by the court at any time on its own
initiative or upon the motion of any party and after such notice, as
the court may order. During the pendency of an appeal, such
mistakes may be corrected before the appeal is docketed in the
appellate court, and thereafter while the appeal is pending such
mistakes may be corrected with leave of the appellate court.
Pursuant to Code § 8.01-428, we remand this case to the circuit court for the correction of
the clerical errors contained in the November 6, 2015 order. Although the order stated that
Boykins was sentenced to ten years of incarceration for his malicious wounding conviction and
twenty years of incarceration for his attempted murder conviction, the circuit court expressly
stated that it intended to sentence him to twenty years of incarceration for his malicious
exception involving a trial court’s ability to consider motions to withdraw guilty pleas pursuant
to Code § 19.2-296).
Although these procedural barriers prevented the circuit court from modifying the
sentencing orders entered on October 6, 2015, the circuit court did not attempt to modify the
sentencing orders in this case. Rather, the circuit court expressly stated that those orders
correctly stated the sentences that it intended to impose for Boykins’s malicious wounding and
attempted murder convictions. But for the clerical error, the November 6, 2015 order would
have been consistent with Boykins’s prior sentencing orders.
‐ 16 ‐
wounding conviction and ten years of incarceration for his attempted murder conviction pursuant
to his original sentencing orders. Accordingly, we remand this case and direct the circuit court to
correct the November 6, 2015 order to properly reflect the sentences actually imposed for the
convictions at issue.
III. CONCLUSION
In summary, we conclude that the evidence presented by the Commonwealth supported
Boykins’s convictions. The evidence was sufficient to establish that Boykins perpetrated the
charged offenses. Although the evidence failed to establish that Boykins actually shot into the
restaurant damaged during the gunfight, we conclude that Boykins has waived his appellate
argument concerning this issue by failing to challenge the proximate causation theory argued by
the Commonwealth and relied on by the circuit court. We also remand this case for the
correction of clerical errors regarding Boykins’s attempted murder and malicious wounding
convictions contained in the November 6, 2015 order. For these reasons, we affirm Boykins’s
convictions and remand this case for the correction of clerical errors pursuant to Code
§ 8.01-428.
Affirmed and remanded.
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