Donte Lavell Brooks v. Commonwealth of Virginia
739 S.E.2d 245
Va. Ct. App.
2013
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Roberto Tyrone CHATMAN v. COMMONWEALTH of Virginia.

Record No. 0858-11-2.

Court of Appeals of Virginia, Richmond.

March 26, 2013.

739 S.E.2d 245

error, emphasizing that “[t]he accident was not in furtherance of the underlying felonies nor was it the result of any malice on [his] part[.]” He asserts he “did not crash his vehicle in an attempt to further either felony, nor was the car crash necessitated by the felony.” “The resulting death,” he argues, “was plain happenstance, and not in furtherance of the felony.” As these arguments are fully addressed above, we need not separately address this assignment of error.

For the reasons stated, we affirm the trial court‘s decision and appellant‘s felony-murder conviction.

Affirmed.

C. Randall Stone (Stone Law Firm, PLC, on brief), for appеllant.

Alice T. Armstrong, Assistant Attorney General II (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: FELTON, C.J., and ELDER, FRANK, HUMPHREYS, KELSEY, PETTY, BEALES, ALSTON, McCULLOUGH, HUFF and CHAFIN, JJ.

UPON REHEARING EN BANC

McCULLOUGH, Judge.

Rule 5A:12(c)(1) requires an appellant to include “with each assignment of error” “[a]n exact reference to the pages of the transcript, written statement of facts, or record where the alleged error has been preserved in the trial court.” Appellant filed a timely petition for appeal that did not comply with this Rule. Nevertheless, he did file an amended petition for appeal, after the deadline for filing his petition for appeal had passed, that sаtisfied the requirements of Rule 5A:12(c)(1). We conclude that dismissal is not required based on appellant‘s initial failure to comply with Rule 5A:12(c)(1). On the merits of the questions presented, we hold that Chatman was properly convicted of abduction and malicious wounding and we thus affirm his convictions.

BACKGROUND

Chatman was angry at his wife because she had taken out a criminal complaint against him. As she tried to iron some clothes, he began yelling at her, telling her that she had “ruined his life.” App. at 31. He turned violent, breaking two ironing boards. The couple began to struggle over the iron. Appellant, who had boxed for eight years while in the military, struck her and “just keрt hitting [her] and hitting [her].” She was crying and was in a great deal of pain. She testified that he sat on top of her and struck her with his fists, and “when he got tired of hitting me with his fist, he started beating me with the iron.” App. at 32. He then renewed the assault with his fist. She fell in and out of consciousness. The beating started on a Friday night, and she thought it ended on the morning of the following day.

The following day, she repeatedly asked him to call for help. Although she felt that she could move, she could not see anything. She also stated that she could not leave the house on her own. Both of her eyes were swollen shut. Appellant had taken off her clothes, so she was naked. Hе initially refused to call for help. He told her that “right now, I just want to stay here and hold you.” App. at 34. Mrs. Chatman said she “was scared because [she] didn‘t know what was going to happen because [she] didn‘t know if his rage and anger [were] going to come back and hurt [her] so [she] was scared.” App. at 37. Chatman later told the police that he disabled the phone lines.1

Appellant eventually did dress his wife and call an ambulance. He told the dispatcher that he had “beat her up” and that she was hurt. App. at 64. Eventually, Mrs. Chatman heard police officers at the door and called out for help. The deputy who respоnded at the scene found her “in a zombie-like state.” App. at 52. She was “wobbly on her feet,” and her eyes were “swollen shut.” App. at 52. Police found “dried blood all on the carpet,” blood spatter on the wall, and noticed that the coffee table had been flipped. App. at 53. A metal ironing board was “tipped over and bent.” App. at 56. The beating necessitated, among other things, stitches for Mrs. Chatman‘s lip and a skin graft for a burn on her arm. Some of her facial bones were fractured. At the time of trial, she continued to suffer from headaches due to the concussion she experienced during the attаck. Her vision remains impaired.

Chatman later admitted that he had attacked his wife but stated that he loved her. At trial, he did not dispute that there had been a physical altercation, but claimed that he “blacked out” and could not remember much of what happened. App. at 83.

Chatman was convicted of aggravated malicious wounding, in violation of Code § 18.2-51.2(A), and abduction, in violation of Code § 18.2-47.2 He filed his petition for appeal with this Court, arguing that the trial court erred in various respects. This Court granted Chatman‘s petition for appeal and directed the parties to address the following additional question:

Where, as here, the only petition for appeal filed within the time period set out in Rule 5A:12(a) does not contain an exact reference to the pages of the transcript, written statement of facts, or record where the alleged error was preserved in the trial court, as required by Rule 5A:12(c)(1), does this Court have active jurisdiction to consider the appeal in light of , and Rule 5A:12(c)(1)(ii)?

A divided panel of this Court held that it was without active jurisdiction to consider Chatman‘s appeal, and consequently dismissed it. The Court subsequently determined on its own motion to rehear the appeal en banc, pursuant to Code § 17.1-402(D).3

ANALYSIS

I. THIS COURT MAY, IN ITS DISCRETION, PERMIT A LITIGANT TO FILE A CORRECTED PETITION FOR APPEAL TO REMEDY AN “EXACT REFERENCE” DEFECT UNDER RULE 5A:12(c)(1), PROVIDED THAT A TIMELY PETITION FOR APPEAL HAS BEEN FILED.

A. Procedural background

The trial court record in this case was received in the clerk‘s office of this Court on June 21, 2011. Rule 5A:12(a) provides that “[w]hen an appeal to the Court of Appeals does not lie as a matter of right, a petition for appeal must be filed with the clerk of this Court not more than 40 days after the filing of the record with the Court of Appeals.” Chatman‘s petition for appeal, therefore, was due by July 31, 2011. Rule 5A:12(a) also provides that “[a]n extension of 30 days may be granted on motion in the discretion of this Court upon a showing of good cause sufficient to excuse the delay.” See Rule 5A:3(c)(2) (providing that a motion for an extension of time for filing a petition pursuant to Rulе 5A:12(a) is timely “if filed ... within the specified extension period“); see also Code § 17.1-408 (not specifying when a motion for extension for filing a petition must be filed or granted). Chatman filed a motion for an extension of time on July 27, 2011. This Court granted that motion on August 11, 2011, extending the deadline for the filing of Chatman‘s petition to August 30, 2011. On August 29, 2011, Chatman filed his petition for appeal. Chatman failed to include with the assignment of error any reference to the place in the record where the alleged error was raised in the trial court. Therefore, the petition for appeal did not comply with Rule 5A:12(c)(1), which requires that “[a]n exact reference to thе pages of the transcript, written statement of facts, or record where the alleged error has been preserved in the trial court ... shall be included with each assignment of error.”

On September 6, 2011, the clerk‘s office of this Court notified Chatman of this and other deficiencies in his petition and directed him to submit a replacement petition within 10 days. Chatman submitted a replacement petition on Septem-ber 16, 2011, that again failed to contain page references to where he had preserved the alleged errors in the trial court. On September 20, 2011, this Court entered an order requiring Chatman ‍​‌‌‌‌‌‌​​‌‌​‌​​‌‌‌​‌‌‌​​‌‌​‌‌‌​‌​​‌​‌​​‌‌​​​​‌​‌‍to file a second replacement petition in compliance with Rule 5A:12(c)(1). Chatman then filed a second replacement petition. This second replacement complied with Rule 5A:12(c)(1).

Unquestionably, when the petition for appeal was filed, it did not comply with Rule 5A:12(c)(1). That Rule required, in conjunction with the assignments of error, that appellant note the exact place in the record where the alleged error was preserved in the trial court. Appellant did eventually correct this defect, albeit after the time for filing his petition for appeal had passed. The initial question before us is whether this Cоurt may permit an appellant to file an amended petition for appeal, after the deadline for filing a petition for appeal has passed, that contains the required exact citation to the part of the record where the alleged error was raised in the trial court.

B. The plain language of Rule 5A:12(c)(1)

The plain text of Rule 5A:12(c)(1) draws a clear distinction between “the assignment of error” and the separate but related requirement that an appellant point out where the alleged error was preserved in the trial court. The requirement to provide “[a]n exact reference to the pages of the transcript, written statement of facts, or record where the alleged error has been preserved” must be included “with” the assignment of error—the exact page reference is not the assignment of error. These two separate requirements serve different roles. The purpose of the assignment of error is to alert the appellate court and opposing counsel to the precise error allegedly committed below and to limit review to that issue. The requirement of providing an exact reference to where the issue was preserved helps the appellate court to grant review only for cases where the issue was preserved, or where the ends of justice exception applies. We decline to conflate these distinct components of the Rule.

Rule 5A:12(c)(1)(ii) does not state “[i]f the assignments of error are insufficient or otherwise fail to comply with the requirements of this Rule, or appellant fails to comply with the requirement to provide an exact reference to where the alleged error has been preserved, the petition for appeal shall be dismissed.” The specific language of the Rule calls for dismissal for insufficient or otherwisе noncompliant assignments of error. In other words, the dismissal remedy triggered by the language “or otherwise fail to comply with the requirements of this Rule” applies only to “assignments of error.” For example, an assignment of error, in addition to being “insufficient,” i.e. too broad, could be unclear, inconsistent, or contain “extraneous argument.” Therefore, the failure to include “with each assignment of error” “[a]n exact reference to the pages of the transcript, written statement of facts, or record where the alleged error has been preserved in the trial court” does not mandate dismissal.

C. Neither thе statute nor the Rule forecloses this Court from allowing a litigant to correct a defect under Rule 5A:12(c)(1).

Code § 17.1–408 provides in relevant part that [t]he petition for appeal in a criminal case shall be filed not more than forty days after the filing of the record with the Court of Appeals. However, a thirty-day extension may be granted in the discretion of the court in order to attain the ends of justice. When an appeal from an interlocutory decree or order is permitted in a criminal case, the petition for appeal shall be presented within the forty-day time limitation provided in this section. (Emphasis аdded).

Similarly, Rule 5A:12(a) provides that [w]hen an appeal to the Court of Appeals does not lie as a matter of right, a petition for appeal must be filed with the Clerk of this Court not more than 40 days after the filing of the record with the Court of Appeals. An extension of 30 days may be granted on motion in the discretion of this Court upon a showing of good cause sufficient to excuse the delay.

A petition for appeal that is filed after the deadline must be dismissed. See (per curiam). Appellant here did not file a late petition for appeal. Neither Code § 17.1-408 nor Rule 5A:12(a) specifies that the petition for appeal must be free of all defects in order to be timely filed. Nothing in this statute or this Rule prohibits a court from considering, and where appropriate, granting, a motion to correct a defect with regard to pointing out where in the record the issue raised on appeal was preserved.

In fact, both this Court and the Supreme Court of Virginia routinely have permitted or ordered litigants to file amended briefs to correct a range of deficiencies, such as typographical errors or pages inadvertently omitted during the printing process. See, e.g., (noting that the Court of Appeals twice required аppellant to file a new petition for appeal to bring it into conformity with the Rules). This practice in Virginia‘s appellate courts is consistent with the understanding that appellate courts have the authority and the discretion to permit a litigant to file a corrected petition for appeal, at least with regard to some defects.

D. Failure to include “with each assignment of error” “[a]n exact reference to the pages of the transcript, written statement of facts, or record where the alleged error has been preserved in the trial court” under Rule 5A:12(c)(1) does not deprivе the appellate court of active jurisdiction.

In (per curiam), the Supreme Court held that a defective assignment of error deprives the court of “active jurisdiction.” Id. at 339, 717 S.E.2d at 796-97. The consequence of such a defect is dismissal of the appeal.4 Here, as we note above, the

defect did not lie with the assignments of error proper, but rather with the separate, supporting requirement under Rule 5A:12(c)(1) that appellant include in the petition for appeal “[a]n exact reference to the pages of the transcript, written statement of facts, or record where the alleged error has been preserved in thе trial court.” Therefore, Davis is not controlling.

Providing the Court with a reference to the place in the record where an issue was preserved is certainly important, and it is mandated by the Rules. But failing to meet this requirement is conceptually distinct from defects in the assignment of error. Therefore, we see no reason why an appellate court would be deprived of its active jurisdiction to adjudicate this appeal—or why it could not require or permit a litigant to correct the defect by filing an amended petition for appeal.

E. Reflexive dismissal for defects under Rule 5A:12(c)(1) would be unwarranted.

As we note in the companion case, (this day decided) (en banc), dismissal is a harsh remedy. The responsibility for filing a corrected petition for appeal falls on the attorney. The consequences of dismissing an appeal fall hardest on the client, even though the mistake was made by counsel. It is up to the client, who must now navigate an unfamiliar legal process, to see to it that the dismissed appeal is reinstated. Some appeals will never be reinstated. Others will be reinstated, but only after a delay of many months. The prompt and efficient administration of justice is best served by permitting a simple amendment to correct a defect under Rule 5A:12(c)(1).

We therefore conclude that appellant, who timely filed a petition for appeal, can file an amended petition for appeal, even after the deadline for filing the petition for appeal had passed, that corrects the defect under Rule 5A:12(c)(1). ‍​‌‌‌‌‌‌​​‌‌​‌​​‌‌‌​‌‌‌​​‌‌​‌‌‌​‌​​‌​‌​​‌‌​​​​‌​‌‍We now proceed to address the merits of Chatman‘s appeal.

II. THE EVIDENCE IS SUFFICIENT TO ESTABLISH CHATMAN‘S GUILT.

Chatman contends that the evidence was insufficient to prove abduction and malicious wounding. We find his arguments unpersuasive.

A. Abduction

Chatman argues the evidence was insufficient to support his abduction conviction because he lacked an intent to abduct and any dеtention of the victim was incidental to the assault. When considering a challenge to the sufficiency of the evidence presented at trial, we “presume the judgment of the trial court to be correct” and reverse only if the trial court‘s decision is “plainly wrong or without evidence to support it.” . Even if our opinion were to differ, we do not “substitute our judgment for that of the trier of fact.” . The relevant question, “after reviewing the evidence in the light most favorable to the prosecution,” is “whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable dоubt.” (citing ). “This standard of review applies not only to the historical facts themselves, but the inferences from those facts as well.” (citation and internal quotation marks omitted).

Code § 18.2-47(A), under which Chatman was convicted, provides: Any person who, by force, intimidation or deception, and without legal justification or excuse, seizes, takes, transports, detains or secretes another person with the intent to deprive such other person of his personal liberty or to withhold or conceal him from any person, authority or institution lawfully entitled to his charge, shall be deemed guilty of “abduction.”

“Intent is the purpose formed in a person‘s mind and may be, and frequently is, shown by circumstances[,]” including “[his] conduct” and “his statements.” .

The specific intent to commit [a crime] may be inferred from the conduct of the accused if such intent flows naturally from the conduct proven. Where the conduct of the accused under the circumstances involved points with reasonable certainty to a specific intent to commit [the crime], the intent element is established.

(citation omitted).

The victim testified that she was scared because she did not know what was going to happen and she did not know “when his rage and anger [were] going to come back and hurt [her].” An abduction can occur by force or intimidation. Code § 18.2-47(A). The factfinder reasоnably could infer that appellant, by force or intimidation, intended to and did prevent Mrs. Chatman from leaving the home against her will when he took off her clothes, refused to seek help after rendering her helpless, insisted on holding her, and disabled or hid the telephones.

Moreover, the abduction was not intrinsic to the malicious wounding. The Supreme Court has held that one accused of abduction by detention and another crime involving restraint of the victim, both growing out of a continuing course of conduct, is subject upon conviction to separate penalties for separate offenses only when the dеtention committed in the act of abduction is separate and apart from, and not merely incidental to, the restraint employed in the commission of the other crime. . Here, the conduct underlying the abduction conviction occurred after the malicious wounding. Therefore, the abduction was “separate and apart from” the malicious wounding and was not incidental to it. See, e.g., ; .

B. Malicious Wounding

Chatman argues the evidence was not sufficient to prove he intended to maim, disfigure, disable or kill the victim and, thus, does not support his malicious wounding conviction. Chatman did not challenge his malicious wounding conviction in his motion to strikе or closing argument.

Under Rule 5A:18, “a challenge to the sufficiency of the Commonwealth‘s evidence is waived if not raised with some specificity in the trial court.” . By failing to specifically challenge the sufficiency of the evidence supporting the malicious wounding charge, appellant waived his right to raise that argument on appeal. See, e.g., (holding the defendant‘s motion to strike the evidence as to one charge did “not also function as a motion to strike” as to another charge).5

CONCLUSION

We affirm Chatman‘s convictions for malicious wounding and abduction.

Affirmed.

PETTY, J., with whom FRANK, HUMPHREYS, ‍​‌‌‌‌‌‌​​‌‌​‌​​‌‌‌​‌‌‌​​‌‌​‌‌‌​‌​​‌​‌​​‌‌​​​​‌​‌‍and HUFF, JJ., join, dissenting.

I believe that Chatman failed to comply with Rule 5A:12(c)(1). Moreover, in light of the Supreme Court‘s pub-lished order in , I also believe that this failure requires us to dismiss Chatman‘s appeal for lack of active jurisdiction. Accordingly, I dissent.

Rule 5A:12(a) states that “[w]hen an appeal to the Court of Appeals does not lie as a matter of right, a petition for appeal must be filed with the clerk of this Court not more than 40 days after the filing of the record with the Court of Appeals.” The trial court record in this case was received in the clerk‘s office of this Court on June 21, 2011. Thus, Chatman‘s petition for appeal was originally due by July 31, 2011. However, Rule 5A:12(a) also provides that “[a]n extensiоn of 30 days may be granted on motion in the discretion of this Court upon a showing of good cause sufficient to excuse the delay.” See Rule 5A:3(c)(2) (providing that a motion for an extension of time for filing a petition pursuant to Rule 5A:12(a) is timely “if filed ... within the specified extension period“); see also Code § 17.1-408 (not specifying when a motion for extension for filing a petition must be filed or granted). Chatman filed a motion for an extension of time on July 27, 2011, and this Court granted that motion on August 11, 2011, extending the deadline for the filing of Chatman‘s petition to August 30, 2011. On August 29, 2011, Chatman filed his original petition for appeal.

Rule 5A:12(c)(1) requires that “[a]n exact reference to the pages of the transcript, written statement of facts, or record where the alleged error has been preserved in the trial court ... shall be included with each assignment of error.” The assignments of error in Chatman‘s original petition contained no such references. On September 6, 2011, the clerk‘s office notified Chatman of this and other deficiencies in his petition and directed him to submit a replacement petition within ten days. On September 16, 2011, Chatman submitted a replacement petition that again failed to contain page references to where he had preserved the alleged errors in the trial court. On September 20, 2011, this Court entered an order requiring Chatman to file a second replacement petition in compliance with Rule 5A:12(c)(1). Chatman then filed a second replacement petition.6

After our order directing Chatman to file a second replacement petition to correct the deficient assignments of error, the Supreme Court entered a published order in the case of .7 In Davis, the Supreme Court dismissed an appeal for failure to comply with Rule 5:17(c)(1)(ii). Rule 5:17 is the Supreme Court‘s counterpart to this Court‘s Rule 5A:12. Under Rule 5:17(c)(1)(ii), “When appeal is taken from a judgment of the Court of Apрeals, only assignments of error relating to assignments of error presented in, and to actions taken by, the Court of Appeals may be included in the petition for appeal to [the Supreme] Court.” The assignment of error in Davis alleged error in the trial court rather than in this Court, thereby violating the Rule‘s directive. Under Rule 5:17, “An assignment of error that does not address the findings or rulings in the ... tribunal from which an appeal is taken ... is not sufficient. If the assignments of error are insufficient, the petition for appeal shall be dismissed.” Rule 5:17(c)(1)(iii) (emphasis added).

Accordingly, pursuant to the dictates of Rule 5:17, the Supreme Court dismissed the appeal in Davis because the assignment of error “[did] not address any finding or ruling of the Court of Appeals.” Davis, 282 Va. at 340, 717 S.E.2d at 797. As the Supreme Court explained, “[b]y prescribing dismissal of the appeal, [Rule 5:17(c)(1)(iii)] establishe[s] that the inclusion of sufficient assignments of error is a mandatory procedural requirement and that the failure to comply with this requirement deprives [the Supreme] Court of its active jurisdiction8 to consider the appeal.” Id. at 339, 717 S.E.2d at 796-97 (emphasis added) (citing ; ).

As I stated above, Rule 5A:12(c)(1) requires that “[a]n exact reference to the pages of the transcript, written statement of facts, or record where the alleged error has been preserved in the trial court ... shall be included with each assignment of error.” With dismissal language mirroring that in Rule 5:17, Rule 5A:12 provides: “If the assignments of error are insuffiсient or otherwise fail to comply with the requirements of this Rule, the petition for appeal shall be dismissed.” Rule 5A:12(c)(1)(ii) (emphasis added). Because the Supreme Court has interpreted Rule 5:17‘s language, “shall be dismissed,” as prescribing mandatory dismissal for lack of active jurisdiction, I am left with no alternative but to conclude that our counterpart Rule 5A:12‘s identical language, “shall be dismissed,” also requires dismissal for lack of active jurisdiction.9

Here, the only petition Chatman timely filed under Rule 5A:12(a) was the initial petition filed on August 29, 2011.10 As already noted, the assignments of error in this petition did not contain any references to where Chatman had preserved the alleged errors in the proceedings below. Thus, the assignments of error failed to comply with the requirements of Rule 5A:12(c)(1). Furthermore, because the initial petition was non-compliant, I do not believe that we can consider an amended petition filed beyond the deadline. Cf. (per curiam) (holding that an amended notice of appeal filed beyond the jurisdictional thirty-day period contained in Rule 5:9(a) was invalid where the original notice of appeal was defective). Therefore, as the Supreme Court has instructed us, Chatman‘s failure to comply with the Rule‘s requirements “deprives this Court of its active jurisdiction to consider the appeal,” Davis, 282 Va. at 339, 717 S.E.2d at 796-97, and requires that we dismiss the appeal, see Rule 5A:12(c)(1)(ii).11

The majority argues that by requiring that an exact page reference “shall be included with each assignment of error,” Rule 5A:12(c)(1), the Supreme Court did not intend the page reference to be a part of the assignment of error. However, “[t]he plain language used by the [Supreme Court] controls our decision, unless that language is ambiguous or otherwise leads to an absurd result.” . Here, I do not believe that the plain meaning of the Rule permits such an interpretation. The word “include” is defined аs “to contain as a part of ‍​‌‌‌‌‌‌​​‌‌​‌​​‌‌‌​‌‌‌​​‌‌​‌‌‌​‌​​‌​‌​​‌‌​​​​‌​‌‍something.” Black‘s Law Dictionary 831 (9th ed.2009). Furthermore, the subsection requiring a page reference is entitled “Assignments of Error.” Cf. (“A title may be read in an attempt to ascertain an act‘s purpose, though it is no part of the act itself.“). Both of these considerations certainly suggest to me that the Supreme Court intended the page reference to be a necessary component of the assignment of error and not a separate and distinct requirement.

Because Chatman failed to timely file a petition for appeal that complied with the requirements of Rule 5A:12(с)(1), I would vacate the order granting his petition and dismiss his appeal.12

Notes

1
At trial, he testified that he hid the telephones before leaving.
2
Chatman was also convicted of assault and battery of a family member, in violation of Code § 18.2-57.2, but assigned no error pertinent to that conviction on appeal.
3
By determining to rehear the case en banc, the Court vacated the previous panel decision. See (en banc).
4
As we note in (this day decided) (en banc), some defects are amenable to correction so as to enable the appellate court to exercise its active jurisdiction.
5
To the extent appellant raises the ends of justice exception under Rule 5A:18, this exception does not apply because the record does not affirmatively establish that an element of the offense did not occur. See, e.g., (delineating the narrow circumstances under which the ends of justice exception applies).
6
Heretofore, it had been this Court‘s practice to permit amendments to non-conforming petitions for appeal after the filing deadline had passed. Indeed, the language of former Rule 5A:12(c) before the July 1, 2010 amendments contained no mention of dismissal for failure to comply with its requirements. However, with the amendment of Rule 5A:12(c) to mandate dismissal of a petition “[i]f the assignments of error ... fail to comply with the requirements of this Rule,” Rule 5A:12(c)(1)(ii), coupled with the Supreme Court‘s recent interpretation and application of such mandatory dismissal language in Davis, I do not believe that our previous practice is permissible. Henceforth, I believe that we must dismiss a petition for appeal containing assignments of error that fail to comply with the requirements of Rule 5A:12(c)(1) if not corrected prior to the deadline for filing.
7
The Supreme Court denied Davis‘s petition for rehearing on January 20, 2012.
8
The Supreme Court has explained that “subject matter jurisdiction, perhaps best understood as the ‘potential’ jurisdiction of a court, ... becomes ‘active’ jurisdiction ... only when various elements are present,” including subject matter jurisdiction, territorial jurisdiction, notice jurisdiction, “‘and the other conditions of fact [that] must exist which are demanded by the unwritten or statute law as the prerequisites of the authority of the court to proceed to judgment or decree.‘” (quoting ). Of course, any jurisdictional requirement other than subject matter jurisdiction may be waived, and the absence of non-subject matter jurisdictional elements renders a resulting judgment or opinion merely voidable, not void. See .
9
While we may at times refer to the procedural rules applicable to proceedings in this Court as “our Rules” or “the Rules of this Court,” see Rule 5A:1(b) (“These Rules may be cited generally as the ‘Rules of the Court of Appeals of Virginia’ ....“), we recognize the Supreme Court‘s conclusion that the provisions of Part 5A of the Rules of the Supreme Court are “precisely that—Rules of [the Supreme] Court,” . Accordingly, we are bound by that Court‘s interpretation of the Rules. See LaCava, 283 Va. at 469–71, 722 S.E.2d at 840.
10
Although Rule 5A:12(a) provides for the granting of a thirty-day extension, this Court had already granted Chatman such an extension, extending the filing deadline for his petition from July 31, 2011 to August 30, 2011. Thus, August 30, 2011 was thе last day Chatman had on which to file a conforming petition before we lost active jurisdiction over his appeal.
11
I note that in Jay, the Supreme Court appeared to limit the remedy of dismissal to jurisdictional violations. 275 Va. at 517, 659 S.E.2d at 315 (“By dismissing rather than denying the appeals, the Court of Appeals rendered the requirements of Rule 5A:20(e) jurisdictional.“). Subsequently, in 2010, Rule 5:1A was added to the Rules of the Supreme Court, providing that “[the Supreme] Court may dismiss an appeal or impose such other penalty as it deems appropriate for non-compliance with these Rules.” Rule 5:1A(a) (emphasis added); see also Rule 5A:26 (“If an appellant fails to file a brief in compliance with these Rules, the Court of Appeals may dismiss the appeal.” (emphasis added)). The new Rule also authorizes the Court, prior to dismissal, to allow a party in violation a chance to correct most defects. See Rule 5:1A(a). Hence, this Rule raises the question of whether the remedy of dismissal continues to be limited to jurisdictional violations. See (dismissing an appeal for appellant‘s failure to properly preserve an issue in the trial court). However, in 2011, the Supreme Court reaffirmed its holding in Jay that “by dismissing the appeal rather than denying it, the Court ‍​‌‌‌‌‌‌​​‌‌​‌​​‌‌‌​‌‌‌​​‌‌​‌‌‌​‌​​‌​‌​​‌‌​​​​‌​‌‍of Appeals еrroneously rendered [Rule 5A:20(e)] jurisdictional.” Smith, 281 Va. at 468, 706 S.E.2d at 892. Moreover, the Court in Davis cited both Jay and Smith in support of its holding that the dismissal language of Rule 5:17(c)(1)(iii) implies that insufficient assignments of error “deprive[] [the] Court of its active jurisdiction to consider the appeal.” Davis, 282 Va. at 339, 717 S.E.2d at 796-97. In light of the Supreme Court‘s repeated affirmation of the idea that dismissal implies lack of jurisdiction, I believe that we are obligated to adhere to this principle in our analysis. But see (holding that an appellant‘s failure to comply with Rule 5:17(c)(1)(iii)‘s requirement to assign error to the pertinent rulings of the Court of Appeals instead of the findings of the trial court meant merely that appellant‘s argument was waived).
12
I recognize if this appeal were dismissed that Chatman would have the right to move this Court for leave to pursue a delayed appeal, pursuant to Code § 19.2-321.1.
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