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Epps v. Commonwealth

Court of Appeals of Virginia

May 31, 2016

DONALD KEITH EPPS
v.
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE. James J. Reynolds, Judge.

          Affirmed.

         M. Lee Smallwood, II (Office of the Public Defender, on brief), for appellant.

         Kathleen B. Martin, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

         Present: Judges Petty, O'Brien and AtLee.

          OPINION

          [66 Va.App. 395] MARY GRACE O'BRIEN, J.

         Donald Keith Epps (" appellant" ) was indicted for one count of abduction, in violation of Code § 18.2-47, and one count of assault and battery, in violation of Code § 18.2-57. Appellant [66 Va.App. 396] pled guilty to assault and battery and was found guilty of abduction following a bench trial. The court sentenced appellant to five years of incarceration in the state penitentiary with two years suspended for abduction and twelve months in jail with six months suspended for assault and battery. Appellant filed a post-trial motion to dismiss his convictions on the ground that the court lacked jurisdiction because the order recording the indictments against him had not been entered at the time of trial. The court denied his motion, and this appeal followed.

         I. Material Proceedings

         The grand jury met on October 27, 2014, and returned indictments in open court against appellant for abduction and assault and battery. The indictments were signed by the grand jury foreman. Following a bench trial for abduction, the court found appellant guilty and also accepted his plea of guilty to assault and battery on November 17, 2014. His sentencing hearing occurred on January 5, 2015.

         On January 7, 2015, appellant's counsel moved to dismiss the convictions because the order reflecting the actions of the grand jury on October 27, 2014, had not been entered prior to trial.[1] On January 13, 2015, the court entered the order memorializing the grand jury's actions (" the presentment order" ). Following a hearing on January 22, 2015, the court denied appellant's motion to dismiss his convictions. The court signed the sentencing order on January 23, 2015.

         II. Assignments of Error

         Appellant asserts the following errors:

I. The trial court erred in conducting a trial of Mr. Epps when it lacked the jurisdiction to do so because no order recording the presentation of the indictment in open court had been entered.
[66 Va.App. 397] II. The trial court erred in concluding that the facts were sufficient to convict Mr. Epps of abduction where Mr. Epps entered a guilty plea to assault and battery, all of the conduct that arguably would support a conviction for abduction was also conduct that was assaultive, and therefore there was no offense of abduction pursuant to the statutory and case law of the offense.

         III. Facts

          We consider the facts, as we are bound to do, in the light most favorable to the prevailing party, the Commonwealth. Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008). So viewed, the evidence established the following: late in the evening of August 29, 2014, appellant and Latisha Williams were ...


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