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finding that the Supreme Court's emergency orders properly tolled "all case-related deadlines" other than discovery deadlines pursuant to its authority under Code § 17.1-330
Summary of this case from Brown v. CommonwealthOpinion
Record No. 0833-20-3
05-17-2022
Clifton Thomas JACKS v. COMMONWEALTH of Virginia
Jonathan B. Tarris (Tarris Law, PLC, on briefs), for appellant. Matthew P. Dullaghan, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Jonathan B. Tarris (Tarris Law, PLC, on briefs), for appellant.
Matthew P. Dullaghan, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Jason S. Miyares succeeded Mark R. Herring as Attorney General on January 15, 2022.
Present: Chief Judge Decker, Judges Humphreys, Beales, Huff, O'Brien, Russell, AtLee, Malveaux, Athey, Fulton, Ortiz, Causey, Friedman, Chaney, Raphael, Lorish and Callins
OPINION BY JUDGE GLEN A. HUFF The Rockbridge County Circuit Court (the "circuit court") denied Clifton Thomas Jacks's appeal from a conviction he sustained in the Rockbridge County General District Court (the "general district court"). Jacks then appealed that decision to this Court, and a divided panel affirmed. Jacks v. Commonwealth , 73 Va. App. 473, 861 S.E.2d 599 (2021). On Jacks's motion, this Court stayed the mandate from the panel decision, 73 Va. App. 499, 862 S.E.2d 473 (2021), and heard argument en banc. Finding error in the circuit court's ruling, this Court reverses the circuit court's dismissal of Jacks's appeal and remands the case to the circuit court. I. BACKGROUND
On March 16, 2020, Jacks was convicted in the general district court for driving while intoxicated. He filed a notice of appeal from that conviction to the circuit court on June 3, 2020. By order entered on June 16, 2020, the circuit court denied Jacks's appeal as untimely under Code § 16.1-132 ’s ten-day deadline for appeals from convictions in general district courts.
Code § 16.1-132 provides, in part, that "[a]ny person convicted in a district court of an offense not felonious shall have the right, at any time within ten days from such conviction ... to appeal to the circuit court."
Jacks appealed to this Court and argued the circuit court's denial order was erroneous because Code § 16.1-132 ’s filing deadline was tolled by emergency orders from the Virginia Supreme Court when he noted his appeal. The Commonwealth did not dispute the merits of Jacks's argument at the panel stage but instead argued, among other things, that Jacks did not preserve the argument in the circuit court and therefore waived it under Rule 5A:18. Jacks countered the Commonwealth's assertion at oral argument, contending (1) he did not waive his argument because he let the circuit court know what action he wanted it to take (i.e., granting an appeal) and (2) even if he failed to present his argument in the circuit court, that failure was excused by Code § 8.01-384(A).
Those tolling orders are described in detail later. Infra pp. 789-90.
A divided panel of this Court affirmed the circuit court's decision. The panel majority agreed with the Commonwealth that Jacks's assignment of error was waived under Rule 5A:18. Jacks , 73 Va. App. at 476-78, 861 S.E.2d 599. In addressing Jacks's argument to the contrary, the panel majority provided the following:
To meet the Commonwealth's arguments that the issue raised on appeal was procedurally defaulted, at oral argument [Jacks] asserted for the first time that this Court should apply Code § 8.01-384(A), which contains an exception
to the contemporaneous objection requirement. However, an argument presented for the first time at oral argument will not be considered by this Court. Further, [Jacks] did not invoke an exception to Rule 5A:18 in his opening brief, precluding this Court's consideration of the issue raised on appeal.
Id. at 479, 861 S.E.2d 599 (citations, internal quotation marks, and footnotes omitted). The panel majority then provided its own analysis of Code § 8.01-384(A) ’s exception to the contemporaneous objection rule and concluded it "d[id] not find that [the statute] is applicable under the circumstances of this case." Id. at 480-86, 861 S.E.2d 599. The panel dissent disagreed with both the majority's and the Commonwealth's procedural arguments and would have reversed the circuit court's denial of Jacks's appeal and remanded for further proceedings. Id. at 486-98, 861 S.E.2d 599 (Huff, J., dissenting).
Jacks petitioned for rehearing en banc and asked this Court to consider the merits of his assignment of error and to reverse the circuit court's denial of his appeal to the circuit court. This Court granted Jacks's petition on September 21, 2021.
II. STANDARD OF REVIEW
The merits of Jacks's assignment of error require this Court to interpret statutes governing criminal procedure and emergency orders from the Virginia Supreme Court. They therefore present questions of law that this Court reviews de novo. See Alcoy v. Valley Nursing Homes, Inc. , 272 Va. 37, 41, 630 S.E.2d 301 (2006). The procedural issues raised in this appeal require this Court to interpret statutory provisions and the Rules of Court, as well as case law interpreting each, so they too present questions of law that this Court reviews de novo. See Brown v. Commonwealth , 279 Va. 210, 217, 688 S.E.2d 185 (2010).
III. ANALYSIS
There are two issues presented in this en banc proceeding: (1) whether any procedural default rules prevent this Court from considering the merits of the case and (2) assuming this Court can consider the merits, whether the circuit court rightly denied Jacks's appeal from the general district court. This Court begins with the merits to provide necessary context for the procedural issues.
A.
The circuit court, sua sponte , denied Jacks's appeal from his general district court conviction because he noted his appeal outside Code § 16.1-132 ’s ordinary ten-day window. But as Jacks points out, the circuit court failed to consider the tolling effect of the Virginia Supreme Court's emergency orders.
Code § 17.1-330(D) grants the Virginia Supreme Court authority to declare a judicial emergency, allowing the Court to "suspend, toll, extend, or otherwise grant relief from deadlines, time schedules, or filing requirements imposed by otherwise applicable statutes, rules, or court orders in any court processes and proceedings, including all appellate court time limitations." On March 16, 2020, the Virginia Supreme Court did just that when it issued a Declaration of Judicial Emergency, stating: "[I]t is hereby ORDERED that NON-ESSENTIAL, NON-EMERGENCY court proceedings in all circuit and district courts be and hereby are SUSPENDED and all deadlines are hereby tolled and extended, pursuant to Code § 17.1-330(D)." March 16, 2020, Order Declaring a Judicial Emergency in Response to COVID-19 Emergency.
On March 27, 2020, the Supreme Court entered a second emergency order that extended the first order's tolling provisions on filing deadlines. March 27, 2020, Order Extending Declaration of Judicial Emergency in Response to COVID-19 Emergency. It did the same on April 22, 2020, in its third emergency order, except it used the phrase "case related deadlines" instead of just "deadlines." April 22, 2020, Third Order Extending Declaration of Judicial Emergency in Response to COVID-19 Emergency. On May 6, 2020, the Supreme Court entered a fourth order extending the tolling provisions of its prior orders:
As provided in the First, Second, Third and Clarification Orders, for all cases in district and circuit courts the statutes of limitation and all other case-related deadlines , excluding discovery deadlines, shall continue to be tolled during the ongoing Period of Judicial Emergency (now March 16, 2020, through June 7, 2020 ) pursuant to Va. Code § 17.1-330.
May 6, 2020, Fourth Order Modifying and Extending Declaration of Judicial Emergency in Response to COVID-19 Emergency (emphasis added).
This Court's interpretation of these orders and their application to this case is straightforward: when the Virginia Supreme Court said "all case-related deadlines" except discovery deadlines, it meant "all case-related deadlines" except discovery deadlines. Put simply, the prosecution of Jacks for driving under the influence was a "case," and Code § 16.1-132 ’s ten-day appeal window was a "deadline" that "related" to the case because it restricted how long Jacks (ordinarily) would have had to note his appeal from his general district court conviction. Jacks was convicted in the general district court on March 16, 2020 (when the first emergency order was issued) and noted his appeal on June 3, 2020 (while the fourth emergency order's tolling provisions were still operative). So, Code § 16.1-132 ’s ten-day deadline was tolled from the day of Jacks's conviction through the time he noted his appeal, which means his appeal was timely and should not have been denied by the circuit court. B.
The Commonwealth did not dispute the merits at the panel stage. But in its arguments before this Court en banc , the Commonwealth for the first time argued that the shift in the language of the emergency orders from "all deadlines" to "all case-related deadlines" evinced an intent to exclude appeal-related deadlines from the Supreme Court's tolling mandates. There are two problems with that reasoning. First, even assuming the Supreme Court meant something different when it said "case-related" deadlines instead of just "deadlines," it would not matter because Code § 16.1-132 ’s ten-day appeal window is still a "case-related" deadline, as just explained. Second, it appears that when the Supreme Court used the words "case-related" in the third and fourth orders, it did not do so to limit what deadlines were tolled, but rather to simply clarify what deadlines had been tolled all along. See April 22, 2020, Third Order Extending Declaration of Judicial Emergency in Response to COVID-19 Emergency ("As recognized in the First and Second Orders ... case related deadlines are tolled." (emphasis added)); May 6, 2020, Fourth Order Modifying and Extending Declaration of Judicial Emergency in Response to COVID-19 Emergency ("As provided in the First, Second, Third and Clarification Orders ... case-related deadlines ... shall continue to be tolled." (emphasis added)).
But the merits of Jacks's assignment of error have never been the main point of contention in this appeal. Instead, the Commonwealth focused its efforts in briefing and oral argument asserting that Jacks's assignment of error is waived—and that is where the panel split. The Commonwealth's procedural arguments are three-fold: (1) Jacks failed to comply with Rule 5A:12(c)(1) and Rule 5A:20(c) ’s requirement that the opening brief reference the page(s) in the record where the assignment of error was preserved; (2) he failed to comply with Rule 5A:8 ’s requirement that he include a transcript or written statement of facts in the record and thus did not "provide a sufficient record" for this Court to resolve this appeal; and (3) he did not present the argument to the circuit court that he now makes on appeal, which bars his assignment of error under Rule 5A:18.
Although the Commonwealth separates its arguments related to Rules 5A:12, 5A:20, and 5A:18, each argument works together to make a single comprehensive argument: because the circuit court was never presented with the argument that Code § 16.1-132 ’s ten-day deadline was tolled by the Virginia Supreme Court's emergency orders, Jacks did not preserve that argument for appeal and consequently cannot reference any point in the record where he did so. Jacks counters that argument by asserting, among other things, that Code § 8.01-384(A) ’s exception to the contemporaneous objection standard applies here and excuses the fact that he did not make the tolling argument to the circuit court. This Court agrees with Jacks that Code § 8.01-384(A) applies here and allows it to consider the merits of his appeal. And because the Commonwealth's argument on Rule 5A:8 is without merit, this Court determines that rule does not prevent consideration of the merits either.
Code § 8.01-384(A)
While litigants generally must object to a circuit court's ruling at the time the ruling is made in order to preserve an issue for appeal, Code § 8.01-384(A) creates an exception to the rule. It provides that "if a party has no opportunity to object to a ruling or order at the time it is made , the absence of an objection shall not thereafter prejudice him ... on appeal. " Code § 8.01-384(A) (emphasis added). Plainly, this provision "requires appellate courts to consider issues on appeal that do not satisfy the contemporaneous objection requirement when the litigant had no opportunity to make the requisite timely objection." Maxwell v. Commonwealth , 287 Va. 258, 265, 754 S.E.2d 516 (2014).
Jacks had no opportunity to object to the circuit court's ruling at the time it was made. Because the circuit court mistakenly believed Jacks's appeal was untimely, it denied the appeal sua sponte , without a hearing, and outside the presence of Jacks or his counsel. Id. at 264-67, 754 S.E.2d 516 (holding that a litigant had no opportunity to contemporaneously object to trial court's ruling where trial court ruled outside the presence of the litigant and his counsel). In that way, Jacks lacked an opportunity to make a contemporaneous objection not through any fault of his own, but rather because the circuit court misunderstood the relevant procedural law when Jacks noted his appeal. See Commonwealth v. Amos , 287 Va. 301, 306-08, 754 S.E.2d 304 (2014) (clarifying Code § 8.01-384(A) ’s exception applies when litigant's lack of opportunity to make contemporaneous objection is not attributable to litigant's own fault).
To combat this conclusion, the Commonwealth argues that even if Jacks did not have an opportunity to challenge the circuit court's denial order at the time it was issued, Code § 8.01-384(A) did not relieve Jacks of the obligation to bring the tolling issue to the circuit court's attention while the court had active jurisdiction over the case (whether through a motion to reconsider or some other measure). But the Supreme Court has already squarely rejected that interpretation of Code § 8.01-384(A) :
The plain language of the contemporaneous objection exception in Code § 8.01-384(A) states that when the litigant ... is prevented from making a contemporaneous objection to the court's ruling or order, the failure to object "shall not thereafter prejudice " the litigant on appeal.... This language is clear and unqualified. The statute imposes no requirement that when the contemporaneous objection exception applies, a party, if able, must file a post-conviction objection or otherwise bring the objection to the court's attention at a later point in the proceedings .... To [hold otherwise] would require us to add language to the statute. This Court may not construe the plain language of a statute in a manner that amounts to holding that the
General Assembly meant to add a requirement to the statute that it did not actually express.
Amos , 287 Va. at 306-07, 754 S.E.2d 304 (second and third emphases added) (citation and internal quotation marks omitted). So, even though a party who was denied the opportunity to make a contemporaneous objection "may be able to and may choose to file a motion to reconsider [and] may even be wise to do so[, s]uch a step ... is not required under Code § 8.01-384(A) in order to preserve an issue for appellate review." Id. at 307, 754 S.E.2d 304. Rule 5A:20(e)
To remove any doubt that Amos is categorical on this point, one need only look to the fact that the dissent in that case unsuccessfully argued for the approach to Code § 8.01-384(A) that the Commonwealth adopts here. 287 Va. at 309, 754 S.E.2d 304 (McClanahan, J., dissenting) (contending Code § 8.01-384(A) does not relieve a party of an "obligation to later state his objection if the trial court can still take corrective action").
The Commonwealth offers another reason for rejecting Jacks's reliance on Code § 8.01-384(A). Citing Rule 5A:20(e), the Commonwealth takes issue with the fact that Jacks did not raise Code § 8.01-384(A) in his opening brief at the panel stage and instead did not bring it up until oral argument. That delay, in the Commonwealth's view, prevented the panel from considering the merits of Jacks's appeal and has the same effect en banc.
Even assuming the Commonwealth is right that Rule 5A:20(e) required Jacks to raise Code § 8.01-384(A) in his opening brief at the panel stage, any conceivable purpose behind Rule 5A:20(e) has been satisfied by now. When this Court granted Jacks's petition for rehearing en banc , it ordered consideration of all the issues raised in the petition, including whether Code § 8.01-384(A) applies here. That order, along with Jacks's briefing of Code § 8.01-384(A) in his opening brief en banc , gave this Court and the Commonwealth ample notice and opportunity to flesh out the right way to view the statutory exception. So at this point, Jacks's assumed failure to abide by Rule 5A:20(e) at the panel stage is a moot issue—and neither this Court nor the Commonwealth has become a "depository in which [Jacks] ... dump[ed] the burden of argument and research." See Bartley v. Commonwealth , 67 Va. App. 740, 744, 800 S.E.2d 199 (2017) (citation omitted). Accordingly, this Court concludes Rule 5A:20(e) does not prevent it from ruling on the merits of Jacks's appeal.
Rule 5A:8
In a final attempt to convince this Court that Jacks's assignment of error is waived, the Commonwealth avers Jacks has not provided a sufficient record for this Court to resolve this appeal because he did not include a transcript or written statement of facts in lieu of a transcript in the joint appendix. Because he did not, the Commonwealth continues, this Court has no way to know if Jacks actually lacked an opportunity to contemporaneously object to the circuit court's denial order at the time it was issued. That argument is without merit. An appeal to a circuit court (a court of record) from a general district court (not a court of record) is considered de novo. See Robinson Family, LLC v. Allen , 295 Va. 130, 143-44, 810 S.E.2d 48 (2018) ; see also Commonwealth v. Diaz , 266 Va. 260, 266, 585 S.E.2d 552 (2003) (noting circuit courts "disregard[ ] the judgment[s]" of general district courts and consider the case as if it "had not proceeded to judgment in the district court"). The entire basis of Jacks's appeal is that he never had the opportunity to be heard by a court of record in the first place. In other words, he takes issue with the fact that there was no proceeding in the circuit court , which means there is no transcript or written statement of facts to present to this Court.
Rule 5A:8 contains an important qualification that accounts for scenarios like this one. In the "Effect of Non-compliance" section of the rule, it clarifies that a failure to include a transcript or written statement of facts in lieu of a transcript will result in a waiver only when the inclusion of one of those items is "necessary to permit resolution of appellate issues." Rule 5A:8(b)(4)(ii). And here, neither a transcript nor a written statement of facts in lieu of a transcript are necessary (or even available) to resolve Jacks's assignment of error. So, this Court declines to find Jacks's assignment of error waived under Rule 5A:8.
At oral argument, the Commonwealth argued that even assuming there is no transcript, that still would not excuse Jacks from failing to include a written statement of facts in lieu of a transcript. But a written statement of facts in lieu of a transcript is just what it says it is, a document designed to replace a transcript; and the need for a written statement arises only when a transcript would otherwise be necessary to allow consideration of the merits.
Indeed, neither the circuit court's denial order nor anything else included in the joint appendix so much as hinted at the fact that a hearing on Jacks's notice of appeal took place.
IV. CONCLUSION
Jacks was wrongfully denied the opportunity to have his appeal considered by the circuit court, and no procedural default rule prevents this Court from reaching that conclusion. Accordingly, this Court reverses the circuit court's judgment and remands for further proceedings consistent with this opinion.
Reversed and remanded.