Epps v. Commonwealth, 799 S.E.2d 516

Background

On October 27, 2014 a Danville grand jury returned a "true bill" in open court charging Donald K. Epps with assault and battery and abduction; Epps pled guilty to assault and battery and not guilty to abduction.
A bench trial on November 17, 2014 resulted in convictions on both charges; sentencing occurred January 5, 2015.
No written order memorializing the grand jury’s October 27 presentment was entered in the circuit court record before trial; the clerk entered such an order on January 13, 2015.
On January 7, 2015 (after sentencing) Epps moved to dismiss, arguing the indictment was invalid under Cawood and Simmons because the presentment order was not of record at the time of trial.
The circuit court denied dismissal; the Court of Appeals affirmed, and the Supreme Court of Virginia granted review limited to whether the late entry of the presentment order rendered the indictment invalid.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an indictment is invalid when the court’s written order memorializing a grand jury’s "true bill" returned in open court is entered after trial	Epps: absence of an order on the record at trial meant no valid indictment existed and the court lacked jurisdiction	Commonwealth: record shows the grand jury returned a true bill in open court; statute and rules do not require the memorializing order to be entered before trial; defects can be waived	The late entry did not invalidate the indictment; no statutory or rule-based timing requirement exists and the objection was waived for failure to timely move before trial
Whether the absence of a presentment order is jurisdictional and thus not waivable	Epps: lack of a recorded presentment meant no indictment, so jurisdiction was lacking	Commonwealth: post‑Cawood statutory developments make indictment-formalities nonjurisdictional and waivable	The Court reaffirmed that indictment formalities are not jurisdictional and may be waived
Whether Cawood and Simmons require recordation prior to trial	Epps: relies on Cawood and Simmons to demand recorded presentment before trial	Commonwealth: those cases addressed absence of any record that a true bill naming the defendant was returned; they do not control where a presentment was in fact made but later recorded	The Court held Cawood and Simmons are inapposite because here the grand jury returned a true bill in open court and the only issue was timing of entry
Whether Epps timely preserved his objection under Rule 3A:9	Epps: objected after sentencing and contends no indictment existed to challenge earlier	Commonwealth: Rule 3A:9 required pretrial objection (at least 7 days before trial); failure to comply waives the claim unless good cause shown	The Court held Epps waived the objection by not timely moving before trial and did not show good cause to excuse the waiver

Key Cases Cited

Cawood's Case, 4 Va. (2 Va. Cas.) 527 (Va. 1826) (early ruling requiring order‑book entry showing indictment returned in open court)
Simmons v. Commonwealth, 89 Va. 156 (Va. 1903) (addressing absence of record that a true bill was presented in court)
Hanson v. Smyth, 183 Va. 384 (Va. 1944) (holding statutory changes render indictment formalities waivable and not jurisdictional)
Pine v. Commonwealth, 121 Va. 812 (Va. 1917) (discussing legislative changes affecting indictment requirements)
Weatherman v. Commonwealth, 91 Va. 796 (Va. 1895) (noting clerical delay in entering orders does not invalidate them)