Opinion
Record No. 1055-91-2
October 12, 1993
FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY THOMAS V. WARREN, JUDGE.
John H. Maclin, IV, for appellant.
Janet F. Rosser, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Barrow, Benton and Coleman.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Gary M. Taylor pled guilty to the charge of conspiracy to distribute a controlled substance in violation of Code § 18.2-256. On this appeal from the sentencing order, he contends (1) that the probation requirement that he allow reasonable searches of his residence violates the fourth amendment to the Constitution of the United States, and (2) that the probation requirement that he stay out of the West Petersburg subdivision of Dinwiddie County violates the first amendment to the Constitution of the United States. For the reasons that follow, we dismiss the appeal.
The record on appeal does not contain a transcript of the hearing at which the guilty plea was entered. See Rule 5A:8(a). Moreover, Taylor's counsel failed to timely file in the circuit court a written statement of facts. See Rule 5A:8(c). Thus, the record on appeal contains only the orders and various pleadings filed in the circuit court.
This scant record establishes that Taylor, while represented by retained counsel, pled guilty to a charge of conspiracy to distribute cocaine in violation of Code § 18.2-256. Following the guilty plea, the trial judge heard evidence concerning the incidents that lead to Taylor's arrest. Taylor was sentenced ninety days after he pled guilty. The sentencing order states that the trial judge considered at the sentencing hearing further evidence, including "such additional facts as were presented by [Taylor]." The record contains neither a transcript nor a statement of the facts, testimony, or other incidents of the case presented at the sentencing hearing.
In the absence of either a transcript or a statement of facts, the record provides no basis upon which this Court can know (1) whether Taylor proposed the probation requirements and, thus, is barred from appealing the order, see Manns v. Commonwealth, 13 Va. App. 677, 679-80, 414 S.E.2d 613, 615 (1992); (2) whether any objection to the sentencing order was made in the trial court, see Simmons v. Commonwealth, 6 Va. App. 445, 450-51, 371 S.E.2d 7, 10 (1988); or (3) whether facts put in evidence before the trial judge presented extraordinary circumstances that may have created a special need. See Griffin v. Wisconsin, 483 U.S. 868, 875 (1987); United States v. Lowe, 654 F.2d 562, 568 (9th Cir. 1981). In a long series of cases, this Court has addressed the necessity to preserve issues for appeal, see, e.g., Connelly v. Commonwealth, 14 Va. App. 888, 890-91, 420 S.E.2d 244, 245 (1992); Gardner v. Commonwealth, 3 Va. App. 418, 423, 350 S.E.2d 229, 232 (1986), and to provide a record sufficient to determine the merits of the issues on appeal. See, e.g., Anderson v. Commonwealth, 13 Va. App. 506, 508-09, 413 S.E.2d 75, 77 (1992); Turner v. Commonwealth, 2 Va. App. 96, 99, 341 S.E.2d 400, 402 (1986). Because a transcript or statement of the facts concerning the incidents of the sentencing hearing is indispensable to determining the merits of the issues raised by Taylor on appeal, we dismiss the appeal.See id.
Dismissed