THE COURT OF APPEALS OF VIRGINIA
PRESENT: Lemons, C.J., Goodwyn, McClanahan, Powell, Kelsey
and McCullough, JJ., and Millette, S.J.
BERNARD GOODWYN, JUSTICE
appeal, we consider whether an indictment returned by a grand
jury as a true bill in open court is invalid when the order
recording the indictment was not entered until after the
trial on the indictment, and no objection was made to the
indictment until after trial.
October 27, 2014, a grand jury for the City of Danville
returned indictments in open court against Donald K. Epps
(Epps) for assault and battery, in violation of Code §
18.2-57, and abduction, in violation of Code § 18.2-47.
Epps pled guilty to assault and battery, and not guilty to
abduction. After a bench trial on November 17, 2014, the
circuit court convicted Epps of both charges. On January 5,
2015, the court sentenced Epps to 12 months in jail, with 6
months suspended, for assault and battery, and 5 years in
prison, with 2 years suspended, for abduction.
January 7, 2015, "in contemplation of" an appeal
challenging the sufficiency of the evidence, Epps contacted
the clerk to obtain the order recording the presentation of
his indictments, and learned that no such order had been
entered. The same day, Epps moved to dismiss his convictions
on the ground that the indictments were improper under
Simmons v. Commonwealth, 89 Va. 156, 157, 15 S.E.
386, 387 (1892).
January 13, 2015, the circuit court entered a written order
memorializing the grand jury's October 27 actions. After
a hearing on January 22, 2015, the court denied Epps's
motion to dismiss. Epps appealed to the Court of Appeals of
Court of Appeals affirmed Epps's convictions in a
published opinion. Epps v.
Commonwealth, 66 Va.App. 393, 785 S.E.2d 792 (2016). In
assigning error on the ground that the circuit court lacked
jurisdiction to try him "because no order recording the
presentation of the indictment in open court had been
entered" prior to his trial, Epps stated that this issue
required no preservation, but nevertheless maintained that
the January 7, 2015 motion preserved his objection. The Court
of Appeals held that the "validity of an indictment is
established by the grand jury returning a true bill in open
court and the subsequent entry and recordation of an order
memorializing those events, " but also cited Supreme
Court of Virginia precedent which has held that felony
prosecution by way of an indictment is not jurisdictional,
and can be waived. Id. at 399-400, 785 S.E.2d at
Court of Appeals noted that Epps challenged only the fact
that the presentment order had not been entered prior to his
trial, and explained that the timing of the recordation was
merely a procedural requirement because no statute, rule or
case law contains a time requirement for entry of the order.
Id. at 400-01, 785 S.E.2d at 796. The Court of
Appeals ultimately concluded that Epps was properly indicted
because of the long-established principle that a court speaks
through its written orders, and the January 13 order
specifically stated that the grand jury met on October 27,
2014, and returned a true bill in open court. Id.
Court granted Epps an appeal on the following assignment of
The Court of Appeals of Virginia erred in affirming the
conviction of Mr. Epps, reasoning that the entry of the order
recording that the grand jury returned the petitioner's
indictment in open court did not have to be entered prior to
his trial because it is a mere procedural requirement.
validity of [an] indictment is a question of law which we
review de novo." Howard v. Commonwealth, 63
Va.App. 580, 583, 760 S.E.2d 828, 829 (2014). Similarly, we
review compliance with statutes and this Court's Rules de
novo. Woodard ...