THE COURT OF APPEALS OF VIRGINIA
Present: Lemons, C.J., Goodwyn, McClanahan, Powell, Kelsey,
and McCullough, JJ. and Koontz, S.J.
LAWRENCE L. KOONTZ, JR. SENIOR JUSTICE.
Ernest McGinnis appeals from a judgment of the Court of
Appeals of Virginia affirming his convictions in a bench
trial in the Circuit Court of the City of Lynchburg on three
counts of larceny by worthless check in violation of Code
§ 18.2-181. The Court of Appeals affirmed McGinnis'
convictions without reaching the merits of his sole
assignment of error which challenged, as a matter of law, the
sufficiency of the evidence to support his convictions.
Relying primarily upon its interpretation of the provisions
of Code § 8.01-271.1 and its review of the undisputed
procedural facts of this case, the Court of Appeals held that
McGinnis' assignment of error was not preserved for
appeal in the circuit court under the requirements of Rule
5A:18. McGinnis v. Commonwealth, 68 Va.App. 262, 274
with our Rule 5:17(c)(1), McGinnis has assigned error to the
judgment of the Court of Appeals. We take this opportunity to
stress that the failure of counsel to heed the directives of
Rule 5:17(c)(1)(ii) that only "assignments of error
relating to assignments of error presented in, and to actions
taken by, the Court of Appeals may be included in the
petition for appeal to this Court" and "[i]f the
error relates to failure of the Court of Appeals to rule on
any issue, error must be assigned to such failure to
rule," are among the principal reasons an appeal from
the Court of Appeals is dismissed by this Court without a
review of the merits of the underlying claim. See,
e.g., Davis v. Commonwealth, 282 Va. 339
granted McGinnis this appeal on the following assignments of
I. The Court of Appeals erred in finding that Mr.
McGinnis' assignment of error was not preserved for
appeal under Rule 5A:18 and thus not addressing the merits of
II. The Court of Appeals erred in denying appellant's
counsel's motion to this Court to sign a copy of the
Motion filed in the trial court and have that newly signed
copy then added to the record on appeal.
III. The Trial Court erred in convicting Mr. McGinnis of
three counts of larceny by worthless check, in violation of
Va. Code §18.2-181, as the evidence was insufficient as
a matter of law.
cases where the Court of Appeals has determined that it
cannot reach the merits of an assignment of error because of
a procedural bar, we review de novo that court's
application of its rules to determine whether the procedural
bar was properly applied. Jay v. Commonwealth, 275
Va. 510, 517 (2008). In this context, we begin our review of
this case with a summary of the appellate proceedings that
resulted in the Court of Appeals affirming McGinnis'
convictions without reviewing the merits of his assignment of
Proceedings Relevant to Preservation of Error in the Circuit
Court and Court of Appeals
circuit court entered final judgment against McGinnis in a
sentencing order dated December 29, 2016. On January 18,
2017, the twentieth day after entry of the final judgment,
McGinnis filed a pleading styled as a "motion to set
aside verdict and for a new trial." Therein, McGinnis
contended that the evidence was insufficient to sustain his
convictions because the Commonwealth failed to prove that the
checks at issue were "not in payment of a debt,"
and had been passed with an intent to defraud.
motion was signed by McGinnis personally and served on the
Commonwealth's Attorney. However, the motion had no
provision for a signature by his trial counsel nor does the
certificate of service indicate that a copy of the motion was
served on his trial counsel. On January 19, 2017, the final
day of the circuit court's jurisdiction under Rule 1:1,
the circuit court considered the motion and entered an order
denying McGinnis' motion to set aside the verdict and for
a new trial.
January 20, 2017, McGinnis' appellate
counsel filed a notice of appeal "from the
final judgment of the Lynchburg Circuit Court entered on
December 29, 2016." On April 19, 2017, McGinnis'
counsel electronically filed a petition for appeal in the
Court of Appeals asserting one assignment of error:
The Trial Court erred in convicting Mr. McGinnis of three
counts of larceny by worthless check, in violation of Va.
Code §18.2-181, as the evidence was insufficient as a
matter of law.
compliance with Rule 5A:12(c)(1), McGinnis averred that this
error had been preserved in the "Motion to Set Aside
filed January 18, 2017, and Order dated January 19,
2017." The Court of Appeals granted McGinnis an appeal
on this assignment of error in an order dated June 7, 2017.
October 3, 2017, after McGinnis and the Commonwealth filed
their briefs and the appendix for the appeal, a deputy clerk
of the Court of Appeals advised the parties that "[t]he
panel of judges assigned this appeal ask that you be prepared
to answer the following question at oral argument:
Is a motion to set aside the verdict that was signed by the
defendant but was not signed by the defendant's attorney
of record sufficient to preserve an issue for appellate
review? See Code Section 8.01-271.1."
October 4, 2017, McGinnis' appellate 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 . . . and did not
permit him to sign the original Motion."
McGinnis, 68 Va.App. at 266. On October 6, 2017,
McGinnis' appellate counsel, relying upon Code §
8.01-271 which allows for counsel to sign a previously
unsigned motion if this is accomplished promptly after the
matter is brought to his attention, filed a motion in the
Court of Appeals to amend the record to include a copy of the
post-conviction motion with his signature
October 11, 2017, the Court of Appeals heard oral argument in
the appeal. At that time the Court asked McGinnis'
counsel whether a pro se motion "raised at the
last second" provided the circuit court with an
opportunity to rule on the issue and, thus, preserve it for
appeal. See, e.g., Commonwealth v.
Bass, 292 Va. 19, 26 (2016) (an objection must be raised
"at a point in the proceeding when the trial court is in
a position not only to consider the asserted error, but also
to rectify the effect of the asserted error"). Counsel
conceded that had the circuit court not ruled on the motion
before it lost jurisdiction over the case, the appeal likely
would be procedurally barred. However, counsel asserted that
because the circuit court "very specifically took it
upon itself to review the motion" and enter an order
reflecting that it had in fact reviewed it, the
contemporaneous objection rule was satisfied.
Court of Appeals then asked counsel to address the
significance of McGinnis having been "represented by
counsel throughout the entire time in the trial court,"
and, thus, "he was never pro se."
McGinnis' counsel, while conceding that McGinnis was
"technically represented by counsel," contended
that the filing of the motion pro se "does not
matter in this case." McGinnis' counsel contended
that Code § 8.01-271.1 provides a safe harbor in that
"[i]f a pleading, written motion, or other paper is not
signed, it shall be stricken unless it is signed promptly
after the omission is called to the attention of the pleader
or movant." Counsel contended that the first notice he
had that the motion was not signed by trial counsel was when
the Court of Appeals advised the parties to be prepared to
address the issue. Counsel maintained that by seeking to sign