Bennie Ward, Jr. v. City of Virginia Beach

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
- 2 -
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.
- 3 -