Daniel Ernest McGinnis v. Commonwealth of Virginia
68 Va. App. 262
| Va. Ct. App. | 2017Background
- Daniel McGinnis was convicted in Lynchburg circuit court of three counts of larceny by passing worthless checks; sentenced to three years on each count with portions suspended, leaving an active term of 2.5 years.
- Twenty days after sentencing, McGinnis (who had counsel throughout the trial) personally filed a "Motion to Set Aside Verdict and For a New Trial" challenging sufficiency of the evidence and arguing the checks were payments of prior debts; his trial counsel did not sign the motion.
- The circuit court denied the motion on the 21st day after sentencing (the last day of its jurisdiction to act on post-trial motions).
- On appeal McGinnis argued the trial evidence was insufficient; he relied on the unsigned-by-counsel post-trial motion as preservation of the issue under Rule 5A:20(c).
- The Court of Appeals considered whether a post-trial motion signed by a represented defendant but not by his attorney preserves error for appeal, and whether counsel could later sign the motion to cure the defect; the court held it could not reach the merits because the motion was legally ineffective.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a post-trial motion signed by a defendant but not by his attorney preserves an assignment of error when the defendant was represented at the time | McGinnis: his pro se-signed motion preserves sufficiency argument for appeal | Commonwealth: a represented party’s filings must be signed by counsel; unsigned-by-counsel filings are invalid and do not preserve error | Held: Not preserved — statute and rules require an attorney of record to sign if the party is represented; pro se signature alone is a nullity |
| Whether the trial court’s ruling on an invalid post-trial motion cures the signature defect and preserves the issue | McGinnis: circuit court ruling validates the motion and preserves the issue | Commonwealth: a ruling does not retroactively validate an improperly executed filing; no hybrid representation exists | Held: No — court’s ruling does not cure the defect; hybrid representation is not permitted |
| Whether counsel may later sign a motion after appeal to cure a prior signature omission under Code § 8.01-271.1 | McGinnis: counsel may sign a copy of the motion and have it added to the appellate record | Commonwealth: statute requires prompt cure while matter is within trial court’s jurisdiction; late signature on appeal is ineffective | Held: No — late signing after appeal is not allowed; defect cannot be cured once trial court lacks jurisdiction |
| (Alternate) Whether sufficiency of the evidence merits review despite preservation defect | McGinnis: requests merits review on sufficiency (checks were payments of debts) | Commonwealth: preservation rule bars appellate review | Held: Court did not reach the merits due to preservation failure |
Key Cases Cited
- Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96 (statutory interpretation governed by plain meaning)
- Shipe v. Hunter, 280 Va. 480 (pleadings not signed by a Virginia attorney for a represented party are a nullity)
- Spencer v. Commonwealth, 238 Va. 295 (no right to hybrid representation; counsel controls when Faretta waiver not invoked)
- Faretta v. California, 422 U.S. 806 (defendant may waive counsel and proceed pro se)
- McGee v. Commonwealth, 4 Va. App. 317 (timely post-trial motion can preserve sufficiency issue; does not support hybrid-signature filings)