Edward L. Watson v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Humphreys, AtLee and Raphael
EDWARD L. WATSON
MEMORANDUM OPINION*
v. Record No. 0528-22-1 PER CURIAM
DECEMBER 13, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Everett A. Martin, Jr., Judge
(Edward L. Watson, on briefs), pro se.
(Jason S. Miyares, Attorney General; Rosemary V. Bourne, Senior
Assistant Attorney General, on brief), for appellee. Appellee
submitting on brief.
On February 11, 2022, Edward L. Watson, proceeding pro se, filed a motion to vacate his
2006 convictions for second-degree murder and burglary. Watson asserted that his convictions
were void because they were obtained by extrinsic fraud and that the City of Norfolk Circuit Court
(“trial court”) had the authority under Code § 8.01-428(D) to vacate them. The trial court denied
Watson’s motion to vacate, and he appeals that decision. For the reasons that follow, we conclude
that Watson has failed to produce an adequate appellate record to determine whether the trial court
erred in denying the motion to vacate. Thus, upon the current record, the panel unanimously holds
that oral argument is unnecessary because we must conclude that “the appeal is wholly without
merit.” Code § 17.1-403(ii)(a); Rule 5A:27(a). Accordingly, we affirm the judgment.1
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Watson also filed a motion for an evidentiary hearing. That motion is denied.
BACKGROUND
In his motion to vacate in the trial court, Watson argued that his 2006 convictions for
second-degree murder and burglary were procured through extrinsic fraud because, allegedly, a
police officer who investigated the incident provided false information to obtain an arrest warrant
and the prosecutor presented false information to the grand jury to obtain indictments. Watson
claimed that the trial court was thus misled during the criminal proceeding.
In its order denying the motion to vacate, the trial court recounted the claims Watson had
raised in his state and federal petitions for writs of habeas corpus, his three previous motions to
vacate his convictions, and his petition for a writ of mandamus to obtain documents relating to his
arrest. The trial court noted that the Supreme Court of Virginia had denied Watson’s direct appeal
of his convictions, as well as all of his appeals from the trial court’s denials of his motions to vacate,
petitions for habeas corpus and mandamus relief, and motion for exculpatory evidence. The trial
court concluded that Watson’s present motion to vacate was repetitive of his previous such motions
and denied it.
ANALYSIS
On appeal of the trial court’s ruling, in a pleading styled “Petition for Appeal,” Watson
claims that the trial court erred in failing to address the merits of his motion to vacate and refusing
to grant him relief under Code § 8.01-428(D).2
2
On May 26, 2022, this Court granted Watson an extension of time until June 27, 2022,
to file an amended opening brief. Watson filed documents he entitled “Amended Pleadings” on
June 6, 2022. On June 10, 2022, this Court issued a show cause order because Watson had not
filed an opening brief that complied with Rule 5A:20(d), which requires “[a] clear and concise
statement of the facts that relate to the assignments of error, with references to the pages of the
transcript, written statement, record, or appendix.” This Court granted Watson ten days to
correct the deficiency. Watson filed an “Amended Opening Brief” on June 21, 2022, but it
simply recited that he had filed his motion to vacate in the trial court and the court had denied it.
By letter of July 8, 2022, this Court instructed Watson to incorporate the amendments to the
opening brief into one pleading within fourteen days. Watson then filed another document
entitled “Amended Pleadings” that did not incorporate the amendments but asserted compliance
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The record on appeal does not contain the record of the proceeding resulting in Watson’s
convictions. Thus, this Court has no record, transcripts, written statements of fact, or other evidence
to reflect what transpired in the earlier proceeding, much less substantiate Watson’s claim of
extrinsic fraud.
“[O]n appeal the judgment of the lower court is presumed to be correct,” and the
appellant bears the burden of presenting 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.” Green v. Commonwealth, 65 Va. App. 524, 534 (2015)
(alteration in original) (quoting Smith v. Commonwealth, 16 Va. App. 630, 635 (1993)). “[A]n
appellate court must dispose of the case upon the record and cannot base its decision upon
appellant’s petition or brief. . . . We may act only upon facts contained in the record.” Browning
v. Browning, 68 Va. App. 19, 26-27 (2017) (second alteration in original) (quoting Smith, 16
Va. App. at 635).
CONCLUSION
Without records regarding the underlying convictions, Watson asks this Court to find that
the lower court erred in denying his claim that his convictions were procured by extrinsic fraud.
We cannot do this without an adequate record of the proceedings before the trial court. See
Francis v. Francis, 30 Va. App. 584, 591 (1999) (“Even pro se litigants must comply with the
rules of court.”). For this reason, we are unable to consider whether the trial court’s denial of the
motion to vacate was erroneous, and we affirm the judgment.
Affirmed.
with this Court’s rules. He also filed a reply brief on August 8, 2022, outside the time period this
Court permitted him to incorporate his amendments into one pleading. We agree with the
Commonwealth’s assertion that Watson’s “series of pleadings following the initial petition for
appeal, which are not in and of themselves replacement briefs compliant with the Rules, do not
comply with Rule 5A:20[.]”
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