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McGinnis v. Commonwealth

Court of Appeals of Virginia

December 12, 2017



          Keith Orgera, Deputy Public Defender, for appellant.

          David M. Uberman, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Petty, Beales and O'Brien Argued at Lexington, Virginia




         On April 4, 2016, the grand jury for the City of Lynchburg indicted Daniel Ernest McGinnis ("appellant") on three separate counts of larceny by passing worthless checks in violation of Code § 18.2-181. Appellant was represented by counsel during the October 25, 2016 trial.[1] After the trial, the circuit court convicted appellant on all three counts of larceny. On December 29, 2016, the circuit court sentenced appellant to three years on each larceny count. The circuit court suspended two years and two months on each count, leaving an active sentence of two years and six months.

         On January 18, 2017, the twentieth day after the sentencing order was entered, appellant filed a "Motion to Set Aside Verdict and For a New Trial" (hereinafter the "Motion"). Appellant personally signed his Motion, and notably appellant's trial counsel did not sign it. In his Motion, appellant claims:

The evidence is insufficient as a matter of law to support the conviction of grand larceny. In the Commonwealth of Virginia, a bad check for full or partial payment of debt would be liable for civil action, but not criminal penalties. If there is no intent to defraud, bad checks are not liable for criminal penalties. A check used to pay off a previous bad check or an outstanding debt is also cleared of criminal charges. Checks that the payee was asked to hold do not warrant criminal charges.[2]

         On January 19, 2017, the last day of the circuit court's jurisdiction - 21 days after the sentencing order - the court denied appellant's Motion. Through counsel, appellant noticed his appeal to this Court, and the Court granted appellant's petition for appeal.

         Appellant's single assignment of error states, "The trial court erred in convicting Mr. McGinnis of three counts of larceny by worthless check in violation of Virginia Code § 18.2-181, as the evidence was insufficient as a matter of law." On brief, appellant argues that the bad checks were given as payment for previously incurred debts. However, appellant's trial counsel did not make this argument during the trial. Pursuant to Rule 5A:20(c), [3] appellant's assignment of error references his post-trial Motion as the place in the record where the claimed error is preserved. Therefore, based upon appellant's own representations to this Court, appellant's Motion is the only place in the record where appellant makes the "previous debts" argument that is the basis of his appeal.

         On October 3, 2017, this Court directed the parties to be prepared to address an additional question at oral argument: "Is a motion to set aside the verdict that was signed by the defendant but was not signed by defendant's attorney of record sufficient to preserve an issue for appellate review?" Thereafter, on October 4, 2017, appellant's counsel requested to sign the original Motion that is located in the Lynchburg Circuit Court Clerk's Office. The Clerk's Office denied this request by appellant's counsel, and did not permit him to sign the original Motion. On October 6, 2017, appellant's counsel filed a motion requesting that a copy of the Motion, signed by appellant's counsel, be added to this Court's record. Counsel's motion claimed that "Virginia Code § 8.01-271.1 allows for counsel to sign a previously unsigned motion if done so promptly after the matter has been brought to his attention." On October 11, 2017, a panel of this Court heard oral argument on the merits of the case and on the additional question raised sua sponte by the Court on October 3, 2017.

         For the reasons that follow, we find that we cannot reach the merits of appellant's assignment of error. Appellant's Motion was invalid as appellant was then represented by counsel, yet his trial counsel did not sign the Motion, which is the only place appellant's assignment of error was preserved for appeal. Therefore, because appellant's assignment of error was not preserved in the circuit court, we affirm appellant's convictions. See Rule 5A:18.[4]


         Whether appellant's assignment of error is preserved under Rule 5A:18 is a question of law that we review de novo. Brown v. Commonwealth, 279 Va. 210, 217, 688 S.E.2d 185, 189 (2010). Answering this question requires an analysis of the applicable statute, Code § 8.01-271.1, the applicable Rules of the Supreme Court of Virginia, and relevant case law.

Under well-established principles, an issue of statutory interpretation is a pure question of law which we review de novo. When the language of a statute is unambiguous, we are bound by the plain meaning of that language. Furthermore, we must give effect to the legislature's intention as expressed by the language used ...

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