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Epps v. Commonwealth

Supreme Court of Virginia

June 1, 2017

DONALD KEITH EPPS
v.
COMMONWEALTH OF VIRGINIA

         FROM THE COURT OF APPEALS OF VIRGINIA

          PRESENT: Lemons, C.J., Goodwyn, McClanahan, Powell, Kelsey and McCullough, JJ., and Millette, S.J.

          OPINION

          S. BERNARD GOODWYN, JUSTICE

         In this 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.

         Background

         On 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.

         On 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).

         On 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 Virginia.

         The Court of Appeals affirmed Epps's convictions in a published opinion.[1] 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 795.

         The 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.

         This Court granted Epps an appeal on the following assignment of error:[2]

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.

         Analysis

         "The 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 ...


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