THE CIRCUIT COURT OF THE CITY OF LYNCHBURG R. Edwin Burnette,
Orgera, Deputy Public Defender, for appellant.
M. Uberman, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Present: Judges Petty, Beales and O'Brien Argued at
RANDOLPH A. BEALES JUDGE
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. 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.
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.
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.
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),  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.
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.
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
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