Opinion
0623-22-2
03-07-2023
MICHAEL KEVIN MCREYNOLDS v. COMMONWEALTH OF VIRGINIA
(Matthew L. Engle; Donovan & Engle, PLLC, on brief), for appellant. Appellant submitting on brief. (Jason S. Miyares, Attorney General; Leanna C. Minix, Assistant Attorney General, on brief), for appellee.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Clarence N. Jenkins, Jr., Judge.
(Matthew L. Engle; Donovan & Engle, PLLC, on brief), for appellant. Appellant submitting on brief.
(Jason S. Miyares, Attorney General; Leanna C. Minix, Assistant Attorney General, on brief), for appellee.
Present: Judges Raphael, White and Senior Judge Petty.
MEMORANDUM OPINION [*]
PER CURIAM.
The trial court convicted Michael Kevin McReynolds of second-degree murder. McReynolds argues that the trial court abused its discretion by "admitting a double hearsay affidavit" at the sentencing hearing. After examining the briefs and record in this case, the panel unanimously holds that oral argument is unnecessary because "the appeal is wholly without merit." Code § 17.1-403(ii)(a); Rule 5A:27(a). Because McReynolds did not comply with Rule 5A:8 and a transcript or written statement of facts is indispensable to resolving his appeal, we affirm the trial court's decision.
BACKGROUND
"In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial." Poole v. Commonwealth, 73 Va.App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). In doing so, we discard any of appellant's conflicting evidence, and regard as true all credible evidence favorable to the Commonwealth and all inferences that may reasonably be drawn from that evidence. Gerald, 295 Va. at 473.
On April 28, 2018, Tricia Murphy saw McReynolds scream and curse at Johnny Battle, her 80-year-old, wheelchair-bound neighbor, on Battle's back porch. McReynolds then repeatedly struck Battle. Other neighbors, Morris Everett and Monique Bennett, also saw McReynolds punch and kick Battle. When Murphy yelled at McReynolds, he threatened to harm her. Murphy retreated inside and called 911. Meanwhile, Everett and Bennett ran to Battle's aid and McReynolds threatened them while spewing racial epithets. McReynolds accused Battle of having taken his "damn car" and unsuccessfully tried to start one of Battle's vehicles. Bennett, a certified nurse's assistant, testified that Battle was unconscious and bleeding from his forehead when she reached him. The Commonwealth introduced a video recording depicting part of the violent attack.
When the police arrived, McReynolds initially claimed that he was attempting to help Battle, but Murphy and Everett identified him as the assailant. Richmond Police Officer Wade testified that McReynolds appeared visibly agitated and paced the alley while stating that he "owns the block" and that he "paid taxes, that that was his." When McReynolds refused to cooperate, the police tased him and arrested him.
Medical technicians transported Battle to the hospital, where he died from his injuries. Battle suffered abrasions on his face, arms, back, and legs. He had fractures in his neck and ribs which caused internal bleeding and deprived his brain of oxygen. The medical examiner reviewed the video of the beating and concluded that McReynolds inflicted the injuries while Battle was alive and that Battle's injuries were consistent with being kicked and punched as recorded in the video. Battle died after he suffered a heart attack caused by the blunt force trauma.
The trial court found, based on the video and testimonial evidence, that the beating was "brutal" and "one of the more horrific things the [c]ourt has seen." The trial court held that there was "a clear showing of malice" and that McReynolds's actions were based on "hatred." The trial court convicted McReynolds of second-degree murder.
On appeal, McReynolds alleges that at sentencing the Commonwealth introduced documents related to his 2003 conviction in Vermont for a hate crime. The trial court sentenced McReynolds to 40 years of incarceration with 12 years suspended. The trial court explained that it departed upward from the guidelines "[b]ecause of the very violent nature of the attack, stomping an 80 year old victim in a wheelchair for no reason." McReynolds appeals.
The sentencing guidelines provided a range of 15 years and 9 months to 26 years and 4 months.
ANALYSIS
McReynolds argues that the documents introduced at sentencing "contained many allegations that were not corroborated" and contained "double hearsay."
Rule 5A:8 requires an appellant to file a timely transcript or written statement of facts in lieu of a transcript. See Rule 5A:8(a) and (c) (stating that a transcript or written statements of facts is only part of the record when it is timely filed). "When the appellant fails to ensure that the record contains transcripts or a written statement of facts necessary to permit resolution of appellate issues, any assignments of error affected by such omission will not be considered." Rule 5A:8(b)(4)(ii). "If . . . the transcript [or statement of facts] is indispensable to the determination of the case, then the requirements for making the transcript [or statement of facts] a part of the record on appeal must be strictly adhered to." Bay v. Commonwealth, 60 Va.App. 520, 528 (2012) (alterations in original) (quoting Turner v. Commonwealth, 2 Va.App. 96, 99 (1986)). "This Court has no authority to make exceptions to the filing requirements set out in the Rules." Shiembob v. Shiembob, 55 Va.App. 234, 246 (2009) (quoting Turner, 2 Va.App. at 99); see also Bay, 60 Va.App. at 528-29.
The trial court entered the final order on August 14, 2019. On March 24, 2022, the Supreme Court of Virginia held that McReynolds "was denied his right to appeal" to this Court, granted him "leave to file a notice of appeal," and "ordered that all computations of time as required . . . shall commence on the date of entry of [the] order," or from the date of entry of a circuit court order appointing counsel, "whichever date shall be later." The trial court did not appoint counsel, thus, under Rule 5A:8, the transcripts were due within 60 days of the entry of the Supreme Court order, or May 23, 2022. See Rule 5A:8. McReynolds filed all but one transcript late. Notably, the transcript for his sentencing hearing was not filed until June 21, 2022, and thus was not timely. Further, McReynolds did not move for an extension of time to file his transcripts or a statement of facts in lieu of a transcript. See Rule 5A:3(c).
Appellate counsel was privately retained.
Because the record does not include a timely filed transcript or a written statement of facts in lieu of a transcript pertaining to the sentencing hearing, we must consider whether one is indispensable to a determination of the assignment of error on appeal. See Bay, 60 Va.App. at 528-29; Anderson v. Commonwealth, 13 Va.App. 506, 508 (1992). "Whether the record is sufficiently complete to permit our review on appeal is a question of law subject to our de novo review." Bay, 60 Va.App. at 529. Here, without a transcript or a written statement of facts, we cannot determine that McReynolds preserved the issue for appeal, nor can we assess the merit of his contention that the court improperly admitted the documents at his sentencing hearing. Thus, we conclude that a transcript or a written statement of facts in lieu of a transcript is indispensable to permit this Court to resolve the issue raised. See Smith v. Commonwealth, 32 Va.App. 766, 772 (2000). As McReynolds failed to provide a timely filed transcript or a written statement of facts in lieu of a transcript necessary to resolve his assignment of error, we will not consider it. Rule 5A:8(b)(4)(ii).
CONCLUSION
For these reasons, the trial court's decision is affirmed.
Affirmed.
[*] Pursuant to Code § 17.1-413, this opinion is not designated for publication.