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McGinnis v. Commonwealth

Supreme Court of Virginia

December 13, 2018

DANIEL ERNEST McGINNIS
v.
COMMONWEALTH OF VIRGINIA

         FROM THE COURT OF APPEALS OF VIRGINIA

          Present: Lemons, C.J., Goodwyn, McClanahan, Powell, Kelsey, and McCullough, JJ. and Koontz, S.J.

          OPINION

          LAWRENCE L. KOONTZ, JR. SENIOR JUSTICE.

         Daniel 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 (2017).

         Consistent 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 (2011).

         We granted McGinnis this appeal on the following assignments of error:

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 the issue.
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.

         In 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 error.

         A. Proceedings Relevant to Preservation of Error in the Circuit Court and Court of Appeals

         The 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.[1]

         The 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.

         On January 20, 2017, McGinnis' appellate counsel[2] 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.

         In 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.

         On 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."

         On 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 appended.[3]

         On 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.

         The 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 ยง 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 ...


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