John Dixon O'Malley v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Chafin and Senior Judge Clements
PUBLISHED
Argued at Richmond, Virginia
JOHN DIXON O’MALLEY
OPINION BY
v. Record No. 1270-15-2 JUDGE JEAN HARRISON CLEMENTS
MAY 3, 2016
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Walter W. Stout, III, Judge Designate
Larry A. Pochucha (Bowen, Champlin, Foreman & Rockecharlie,
PLLC, on brief), for appellant.
Rosemary V. Bourne, Senior Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
By summons issued pursuant to Code § 3.2-6540, John Dixon O’Malley (appellant) was
ordered to respond to an allegation that he was the owner of a dangerous dog. At a jury trial, the
Commonwealth presented evidence that appellant’s dog attacked and injured the dog of Randall
Powell. At the conclusion of the proceeding, the jury found appellant’s dog to be a dangerous
dog as set forth in Code § 3.2-6540. On appeal of this finding, appellant contends the trial court
erred: 1) in denying his motion to dismiss the proceeding because § 10-1 of the Code of the City
of Richmond defines a “dangerous dog” to be a dog which has bitten, attacked, or inflicted injury
upon a person or companion animal “other than a dog”; 2) in refusing jury instructions he
proposed; 3) in refusing to declare that the proceeding was civil in nature; 4) in refusing to admit
§ 10-1 of the Richmond Code into evidence; and, 5) in denying the motion to set aside the
verdict based upon insufficient evidence. We conclude that this Court does not have jurisdiction
over this appeal. Accordingly, we do not reach the merits of this case, and we transfer it to the
Supreme Court of Virginia pursuant to Code § 8.01-677.1.1
In Settle v. Commonwealth, 55 Va. App. 212, 685 S.E.2d 182 (2009) (Settle I), the
defendant appealed to this Court from a lower court’s decision regarding forfeiture of the
defendant’s dogs pursuant to former Code § 3.1-796.115.2 At that time, Code § 3.1-796.115(A)
and (B) provided procedures for a court hearing following the initial seizure of an animal that
was allegedly abandoned, mistreated, or not provided with adequate care. Regarding that
hearing and appeal therefrom, Code § 3.1-796.115(C) provided: “The procedure for appeal and
trial shall be the same as provided by law for misdemeanors. Trial by jury shall be as provided
in Article 4 (§ 19.2-260 et seq.) of Chapter 15 of Title 19.2. The Commonwealth shall be
required to prove its case beyond a reasonable doubt.”3 Pursuant to Code § 3.1-796.115, a
finding by the court that forfeiture of the dog was appropriate did not result in a criminal
conviction for the dog’s owner, only a civil forfeiture of the animal. See Settle I, 55 Va. App. at
219, 685 S.E.2d at 185. This Court noted:
Code § 3.1-796.115 does not define a crime or prescribe a
penalty therefore. Code § 3.1-796.115 merely sets out the
1
Code § 8.01-677.1 provides, in pertinent part:
Notwithstanding any other provisions of this Code, no appeal
which was otherwise properly and timely filed shall be dismissed
for want of jurisdiction solely because it was filed in either the
Supreme Court or the Court of Appeals and the appellate court in
which it was filed thereafter rules that it should have been filed in
the other court. In such event, the appellate court so ruling shall
transfer the appeal to the appellate court having appropriate
jurisdiction for further proceedings in accordance with the rules of
the latter court.
2
Title 3.1 of the Code of Virginia was repealed, revised, and reenacted as Title 3.2
effective October 1, 2008.
3
Concerning the forfeiture of a dog, identical statutory language presently is found in
Code § 3.2-6569(E).
-2-
administrative process by which an animal warden or officer may
seize an animal alleged to have been abused or neglected and
provide for its care until the propriety of the seizure is resolved.
The statute is civil in nature.
Id. at 221, 685 S.E.2d at 186.
Addressing this Court’s jurisdiction to consider the appeal of the forfeiture, we
recognized:
It is well established that the “Court of Appeals of Virginia
is a court of limited jurisdiction. Unless a statute confers
jurisdiction in this Court, we are without power to review an
appeal.” Canova Elec. Contracting, Inc. v. LMI Ins. Co., 22
Va. App. 595, 599, 471 S.E.2d 827, 829 (1996) (citation omitted).
“Code § 17.1-406(A) provides that ‘[a]ny aggrieved party
may present a petition for appeal to the Court of Appeals from . . .
any final conviction in a circuit court of . . . a crime.’ The
statutory language is restrictive, limiting the Court of Appeals’
appellate jurisdiction to appeals from final criminal convictions
and from action on motions filed and disposed of while the trial
court retains jurisdiction over the case.” Commonwealth v.
Southerly, 262 Va. 294, 299, 551 S.E.2d 650, 653 (2001).
Id. at 217-18, 685 S.E.2d at 184-85. We concluded that the underlying action for forfeiture of
the dogs and ensuing appeal were civil in nature. Id. at 221, 685 S.E.2d at 186.
Pertaining to the General Assembly’s adoption of the language in Code § 3.1-796.115(C)
regarding the “procedure for appeal and trial” and the burden of proof at the hearing, we relied
upon the Virginia Supreme Court’s decision in Commonwealth v. Rafferty, 241 Va. 319, 321-22,
402 S.E.2d 17, 18-19 (1991), which concerned the appropriate appellate jurisdiction in a case
involving unreasonable refusal of a blood or breath test. Settle I, 55 Va. App. at 186-87, 685
S.E.2d at 221-22. At the time of the Rafferty decision, the governing unreasonable refusal
statute contained language nearly identical to that in Code § 3.1-796.115(C) regarding procedure
at trial and on appeal and the applicable burden of proof. The Rafferty Court found the
-3-
legislature’s inclusion of this language did not modify the Court’s prior ruling that the statute
provided for a civil proceeding, reasoning,
If the General Assembly intended to [make refusal a criminal
offense], the 1977 amendment simply could have provided that an
unreasonable refusal to submit to [a blood or breath] test is a
misdemeanor and not an administrative and civil proceeding.
Additionally, such an amendment would have given the right to a
jury trial and required proof beyond a reasonable doubt, without
the necessity of mentioning them, because both are inherent in
criminal prosecutions.
Settle I, 55 Va. App. at 221-22, 685 S.E.2d at 186-87 (quoting Rafferty, 241 Va. at 322, 402
S.E.2d at 19). Accordingly, we found that the forfeiture proceeding and appeal were civil in
nature and transferred that portion of the appeal to the Supreme Court of Virginia pursuant to
Code § 8.01-677.1. See id. at 223, 685 S.E.2d at 187.
The Supreme Court of Virginia apparently disagreed with this Court’s decision to transfer
the forfeiture appeal. By unpublished order, after “[h]aving reviewed the record, briefs, and
relevant statutes in the case,” the Supreme Court stated it was “of the opinion that it does not
have jurisdiction over the portion of the appeal that was transferred by the Court of Appeals” and
transferred the forfeiture matter back to this Court pursuant to Code § 8.01-677.1. Settle v.
Commonwealth, No. 100520 (Va. Apr. 7, 2010). Subsequently, in Settle v. Commonwealth, 56
Va. App. 222, 223, 692 S.E.2d 641, 641 (2010) (Settle II), we found the evidence was sufficient
to find that forfeiture of the animals pursuant to Code § 3.1-796.115 was proper.4
In the present case, appellant was not charged with or convicted of any crime. He was
issued a summons pertaining to his dog and given notice of proceedings to determine whether
4
In Settle II, 56 Va. App. at 222 n.1, 692 S.E.2d at 641 n.1, we noted that in Davis v.
County of Fairfax, Record No. 1697-08-4 (Mar. 2, 2010), we found this Court “‘lack[ed]
authority to conduct an independent review of the issue of our jurisdiction over’ the case
involving a civil forfeiture action under Code § 3.1-796.115, because the Supreme Court of
Virginia had transferred the case to this Court noting it ‘appear[ed]’ it did not have jurisdiction
over the case.”
-4-
the dog was dangerous pursuant to Code § 3.2-6540(A) and (B). No language in Code
§ 3.2-6540 characterizes as criminal the proceeding to identify a canine as a dangerous dog. Just
as in former Code § 3.1-796.115(C), Code § 3.2-6540(B) provides: “The procedure for appeal
and trial shall be the same as provided by law for misdemeanors. Trial by jury shall be as
provided in Article 4 (§ 19.2-260 et seq.) of Chapter 15 of Title 19.2. The Commonwealth shall
be required to prove its case beyond a reasonable doubt.” A jury found appellant’s dog to be
dangerous. Upon this finding, the trial court ordered appellant to comply with registration and
maintenance provisions under Code § 3.2-6540 and to make restitution.
Our conclusion in Setttle I that the underlying proceeding and appeal were civil in nature
is equally applicable here, where appellant sustained no criminal conviction and the same
statutory language regarding the procedure governing the proceeding is involved. Thus, our
holding in Settle I as to the jurisdiction of this Court is binding under rules of stare decisis. See
Commonwealth v. Burns, 240 Va. 171, 173-74, 395 S.E.2d 456, 457 (1990). We further are
bound by the Supreme Court of Virginia’s decision in Rafferty, upon which our Settle I decision
was based. “[W]e are bound by the decisions of the Supreme Court of Virginia and are without
authority to overrule [them].” Roane v. Roane, 12 Va. App. 989, 993, 407 S.E.2d 698, 700
(1991).
The Supreme Court of Virginia’s unpublished order transferring Settle back to this Court
is not a decision binding upon this Court. As we explained in Settle I, 55 Va. App. at 223, 685
S.E.2d at 187:
“[w]hile a decision [of the Virginia Supreme Court] ‘on the
merits,’ including a denial of a petition for appeal, may have
precedential value, discerning the grounds that formed the basis for
denial is indispensable in assessing its potential applicability in
future cases.” [Sheets v. Castle, 263 Va. 407, ] 411-12, 559 S.E.2d
[616,] 619 [(2001)]. “However, unless the grounds upon which the
refusal is based are discernible from the four corners of the Court’s
-5-
order, the denial carries no precedential value.” Id. at 412, 559
S.E.2d at 619.
We conclude that the grounds upon which the Settle transfer was based are not
discernible from the four corners of the order. Therefore, we find our decision here is not
controlled by the unpublished order in Settle transferring the matter back to this Court.
We conclude the current appeal is civil in nature and this Court lacks jurisdiction, as
defined by the General Assembly, to consider it. Therefore, we transfer the case to the Supreme
Court of Virginia pursuant to Code § 8.01-677.1.
Transferred.
-6-