701 S.E.2d 820
Va. Ct. App.2010Background
- McDowell signed a lease-purchase agreement with Premier for a television valued at $1,499 on August 10, 2006, with a 36-month term and partial payments, listing 1800 Jefferson Park Avenue as the lessee's address.
- Premier's account manager Pitts repeatedly contacted McDowell in January 2007 at 1800 Jefferson Park Avenue, Apartment B-37, Charlottesville; McDowell initially agreed to catch up but subsequently fell behind again.
- Pitts found the apartment vacant after subsequent visits; furniture was present on early visits but not on later ones; notes were left but received no response.
- Premier mailed a certified May 1, 2007 'Final Notice' to 1800 Jefferson Park Avenue, Apartment B-37, advising termination and potential prosecution under Code § 18.2-118; the letter was returned undelivered because the premises were vacant.
- At trial, McDowell moved to strike the Commonwealth's evidence arguing the notice did not comply with the lease address; the trial court rejected the argument and convicted McDowell of fraudulent conversion of leased property.
- At sentencing, the court revoked previously suspended sentences on unrelated probation violations; this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did certified notice to the lease address satisfy 18.2-118(b)? | Commonwealth: notice mailed to the lease address suffices; address may include extra identifying details. | McDowell: notice must be mailed exactly to the address stated in the lease without an apartment or city addition. | Yes; adding apartment number/city did not violate the statute; notice to the lease address sufficed. |
| Did the notice advise that the lease/rental period had expired? | Commonwealth contends the notice indicated termination due to nonpayment, satisfying expiration notice. | McDowell argues the notice failed to state that the lease had expired. | Not preserved and not considered on appeal; ends of justice exception inapplicable. |
| Is the ends of justice exception to Rule 5A:18 available here to void the conviction for lack of proper notice? | N/A | McDowell seeks ends of justice due to insufficiency of notice. | Not applicable; record shows prima facie evidence of fraudulent intent and no miscarriage of justice shown. |
| Was the challenge to the revocation of a prior suspended sentence preserved for review? | N/A | McDowell asserts improper basis for revocation due to this conviction. | Barred under Rule 5A:12(c); not within petition for appeal issues. |
Key Cases Cited
- Jimenez v. Commonwealth, 241 Va. 244 (1991) (strict construction of criminal notice requirements)
- McCary v. Commonwealth, 42 Va.App. 119 (2003) (address accuracy within notice context; proper mailing precedents)
- Redman v. Commonwealth, 25 Va.App. 215 (1997) (Ends of justice exception narrow; miscarriage of justice standard)
- Wheeler v. Commonwealth, 44 Va.App. 689 (2005) (miscarriage-of-justice standard and evidence evaluation)
- Carter v. Commonwealth, 38 Va. App. 116 (2002) (statutory construction principles; avoid absurd results)
- Meeks v. Commonwealth, 274 Va. 798 (2007) (avoid absurd results; strict construction balanced with evident intent)
- Akron? or Akers v. Commonwealth, 31 Va.App. 521 (2000) (ends of justice standards and sentencing review)
- McLean v. Commonwealth, 30 Va.App. 322 (1999) (questions presented scope in appeals)
- Willis v. Commonwealth, 10 Va.App. 430 (1990) (strict vs liberal construction in criminal statutes)