ERIC AMIR GHAMESHLOUY v. COMMONWEALTH OF VIRGINIA
Record No. 091120
SUPREME COURT OF VIRGINIA
February 25, 2010
JUSTICE LAWRENCE L. KOONTZ, JR.
FROM THE COURT OF APPEALS OF VIRGINIA
Present: All the Justices
Because the Court of Appeals did not address the merits of the challenge to the conviction under the local ordinance, we are concerned here only with the procedural status of the appeal. Accordingly, we will confine our consideration to the procedural history of the case, addressing only those aspects of the merits necessary to place the proceedings in proper context.
On February 24, 2007, officers of the City of Virginia Beach Police Department responded to a report of a domestic altercation at a local motel. In the course of their investigation, the police entered a motel room occupied by Eric Amir Ghameshlouy and a female. When asked by police to identify himself, Ghameshlouy gave evasive and conflicting answers concerning both his name and age. The officers frisked Ghameshlouy and found two identification cards that showed his true name and date of birth. The officers advised Ghameshlouy that he was being arrested for giving false identity information to police, subsequently charging him by warrant with a violation of Virginia Beach City Code § 23-7.1 (hereinafter, “VBCC § 23-7.1“), which provides:
It shall be unlawful and a Class 1 misdemeanor for any person at a public place or place open to the public to refuse to identify himself by name and address at the request of a uniformed police officer or of a properly identified police officer not in
uniform, or to provide false information in response to such a request, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety requires such identification.
In a search incident to this arrest, police discovered a bag containing a white powder, later identified as cocaine, on Ghameshlouy‘s person. Consequently, Ghameshlouy also was charged by a felony warrant with possession of cocaine in violation of
Ghameshlouy was tried on the VBCC § 23-7.1 violation in the City of Virginia Beach General District Court on April 6, 2007. He was convicted and sentenced to 180 days in jail with 170 days suspended on condition of 2 years probation. Ghameshlouy noted his appeal from this conviction to the circuit court.
On April 30, 2007, the Circuit Court of the City of Virginia Beach conducted a hearing on a motion to suppress the cocaine discovered on Ghameshlouy‘s person during the search incident to his arrest. In briefing his motion to suppress, Ghameshlouy contended that the officers’ warrantless entry into the motel room was unlawful because they had no probable cause to believe that a crime was being committed in the room and lacked a sufficient basis for believing that they could enter the room under a “community caretaker” function, since
On July 24, 2007, in a proceeding before the circuit court, Thomas M. Murphy, a Deputy Commonwealth‘s Attorney in the Office of the Commonwealth‘s Attorney for the City of Virginia Beach, was acknowledged by the court as “present for the Commonwealth.” It is not disputed, however, that Murphy was also representing the City in prosecuting the appeal of the local ordinance violation. See
After accepting the plea to the state charges, the circuit court conducted a bench trial on the VBCC § 23-7.1 charge on stipulated evidence. The sole issue before the
On July 31, 2007, Ghameshlouy filed a notice of appeal in the record of the VBCC § 23-7.1 case, listing in its caption the circuit court docket number for that case as well as those assigned to each of the state law offenses for which he had entered guilty pleas. However, the caption named only the Commonwealth of Virginia as the prosecuting authority, and also named only the Commonwealth as the appellee in the
In his petition for appeal in the Court of Appeals, Ghameshlouy acknowledged that the conviction for failure to identify was under the local ordinance. Nonetheless, the
Ghameshlouy requested a review of his petition by a three-judge panel, which in an order dated June 10, 2008 refused the appeal as to the suppression issue related to the state cocaine conviction, but granted an appeal on the challenge to the VBCC § 23-7.1 conviction. This order also styled the appellees as “Commonwealth of Virginia and City of Virginia Beach” and was served on both the Virginia Beach
On June 18, 2008, Ghameshlouy filed his opening brief in the Court of Appeals, reasserting his contention that a motel room is not “a public place or place open to the public.” Despite the modification of the style of the case by the Court of Appeals in its orders, in the caption of his brief and in the certificate at its end Ghameshlouy continued to identify the “Commonwealth of Virginia” as the appellee and further averred that service had been made upon the Assistant Attorney General representing the Commonwealth.4
On August 6, 2008, the Office of the Attorney General, on behalf of the Commonwealth, filed a motion in the Court of Appeals to amend the caption of the appeal in which it averred that “[t]he proper appellee is now the City of Virginia Beach and the Commonwealth‘s Attorney from that jurisdiction has agreed to become co-counsel in this matter.” Noting that “upon an appeal to the Supreme Court the appellant could again challenge his [cocaine possession] conviction under the state statute,” the Attorney General stated that the Commonwealth
On August 12, 2008, the Attorney General and the Commonwealth‘s Attorney for the City of Virginia Beach filed a joint brief styled as the “Brief for the Commonwealth,” but captioned in accord with the style of the case in the order granting the appeal giving both the Commonwealth and the City as appellees. The brief made no objection to Ghameshlouy‘s failure to include the City as an appellee in the notice of appeal, addressing only the merits of the challenge to the VBCC § 23-7.1 conviction.
On September 26, 2008, the Attorney General filed a motion to dismiss the appeal, contending for the first time
Following oral argument before a three-judge panel of the Court of Appeals, a majority of the panel determined that the appeal was barred for lack of jurisdiction and dismissed Ghameshlouy‘s appeal. Ghameshlouy v. Commonwealth, 54 Va. App. 47, 56, 675 S.E.2d 854, 858 (2009). The majority of the panel held that Ghameshlouy‘s failure to name the City as an appellee deprived the Court of jurisdiction over the appeal with respect to the local ordinance issue and that the doctrine of waiver could not be applied to provide the Court with that jurisdiction. Id. at 51-56, 675 S.E.2d at 856-58. The dissenting judge was of opinion that because the notice of appeal was timely filed in this case, the failure to
Ghameshlouy filed a notice of appeal in the Court of Appeals seeking to challenge this judgment and the denial of his petition for appeal as to the cocaine possession charge. By an order dated September 11, 2009, we awarded Ghameshlouy an appeal, limited to the challenge of his conviction on the VBCC § 23-7.1 conviction and the Court of Appeals’ dismissal of the appeal on that issue. In that order, we directed the City to file a brief “address[ing] whether it was a party to the appeal of this case in the Court of Appeals.”
DISCUSSION
The resolution of this appeal requires us to once again plumb the murky depths of the sea of “jurisdiction.” As aptly noted in the dissent below, “[j]urisdiction is a word of
In this context, we recently observed, in Board of Supervisors v. Board of Zoning Appeals, 271 Va. 336, 343-44 & n.2, 626 S.E.2d 374, 379 & n.2 (2006), that subject matter jurisdiction, perhaps best understood as the “potential” jurisdiction of a court, is the authority granted to it by constitution or statute over a specified class of cases or controversies, and becomes “active” jurisdiction, the power to adjudicate a particular case upon the merits, only when various elements are present.
Those elements are subject matter jurisdiction, which is the authority granted through constitution or statute to adjudicate a class of cases or controversies; territorial jurisdiction, that is, authority over persons, things, or occurrences located in a defined geographic area; notice jurisdiction, or effective notice to a party or if the proceeding is in rem seizure of a res; and the other conditions of fact 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. All these elements are necessary to enable a court to proceed to a valid judgment.
Id. at 343-44, 626 S.E.2d at 379 (internal quotation marks, citations and footnote omitted).
In an effort to achieve further clarity, we begin our discussion of the jurisdiction issue raised in this appeal by
Rather, the issue with which we are concerned is whether Ghameshlouy‘s appeal of his VBCC § 23-7.1 conviction was properly before the Court based upon the July 31, 2007 notice of appeal. That is, did the filing of the July 31, 2007 notice of appeal cause the potential jurisdiction of the Court of Appeals over this type of appeal to ripen into active
When a circuit court renders a judgment that provides complete relief, leaving nothing to be done except for the superintendence of the judgment, that judgment is final and subject to being appealed. Although the circuit court‘s jurisdiction over the case extends 21 days beyond the entry of the final order,
As relevant to our resolution of the issue raised in this appeal,
(a) Filing Deadline; Where to File - No appeal shall be allowed unless, within 30 days after the entry of final judgment . . . counsel files with the
clerk of the trial court a notice of appeal, and at the same time mails or delivers a copy of such notice to all opposing counsel and the Clerk of the Court of Appeals . . . . (d) Certificate - The appellant shall include with the notice of appeal a certificate stating:
(1) the names . . . of all appellants and appellees, [and] the names . . . of counsel for each party, . . . .
(2) that a copy of the notice of appeal has been mailed or delivered to all opposing counsel.
(Emphasis added.)
This Court has held that filing a timely notice of appeal is a mandatory prerequisite to an appellate court acquiring jurisdiction over a case. Super Fresh Food Mkts. of Va. v. Ruffin, 263 Va. 555, 563, 561 S.E.2d 734, 739 (2002); School Board of City of Lynchburg v. Caudill Rowlett Scott, Inc., 237 Va. 550, 556, 379 S.E.2d 319, 323 (1989); Vaughn, 215 Va. at 329-330, 210 S.E.2d at 142. Likewise, the Court of Appeals has recognized that strict adherence to the time requirement of
Strict enforcement of the time requirements of the rules governing the noting of appeal is necessary because “[l]itigation is a serious and harassing matter, and the right to know when it is ended is a valuable right.” Avery v. County School Bd., 192 Va. 329, 333, 64 S.E.2d 767, 770 (1951). Thus, dismissal of an untimely appeal is not merely a mechanical application of a technical rule to deprive a litigant of the right to appeal, rather “[t]he purpose of the specific time limit [for filing a notice of appeal] is not to penalize the appellant but to protect the appellee.” Id.
While the filing of a timely notice of appeal is a prerequisite to an appellate court‘s obtaining and exercising jurisdiction over a case, not every requirement of the rule prescribing when and how a notice of appeal is to be prepared and filed implicates the court‘s initial acquisition of jurisdiction. Thus, we have never required that a notice of appeal be precise, accurate, and correct in every detail before the appellate court can acquire jurisdiction over the case in which the notice is filed. To the contrary, both this Court and the Court of Appeals have consistently held that most statutory and rule-based procedural prerequisites for the valid exercise of jurisdiction by a court may be waived, even when couched in mandatory terms by the language of the statute or rule. See, e.g., Porter v. Commonwealth, 276 Va. 203, 236-37, 661 S.E.2d 415, 431 (2008) (holding that statutory requirements for effecting granted motions for change of venue were not jurisdictional and were waived); Jay v. Commonwealth, 275 Va. 510, 520, 659 S.E.2d 311, 317 (2008) (holding that a
In Johnson the Court of Appeals held that while the time limit for filing the notice of appeal under
More recently in Woody v. Commonwealth, 53 Va. App. 188, 197, 670 S.E.2d 39, 44 (2008), the Court of Appeals held that where the appellant was convicted under a local ordinance for driving under the influence, and he failed to include the locality in the caption or certificate of his notice of appeal of that conviction, the Court never acquired jurisdiction over the appeal. In reaching this conclusion, the Court of Appeals rejected the appellant‘s argument that service of the notice of appeal on the Commonwealth‘s Attorney, who, as in this case, had prosecuted the local ordinance offense in the circuit court, “effectively joined the [locality] as a party.” Id. at 197-98, 670 S.E.2d at 44. In doing so, the Court noted that the locality “has not appeared as a party on any pleading filed in this Court. It has not filed a brief in opposition
Relying upon Woody, the majority of the panel of the Court of Appeals below found that Ghameshlouy‘s failure to identify the City as an appellee in the notice of appeal was a “jurisdictional defect that requires dismissal of the
The majority went on to find that “this jurisdictional defect was not waived, as [Ghameshlouy] contends, as a result of the Commonwealth moving this Court to amend the caption of the case by adding the City of Virginia Beach as an appellee, and the City of Virginia Beach later purportedly joining in the Commonwealth‘s brief, addressing the merits of the misdemeanor conviction.” Id. at 54, 675 S.E.2d at 857. The majority reasoned that because the defect in the notice of appeal was, in its view, “jurisdictional,” Ghameshlouy never filed a valid notice of appeal with respect to the VBCC § 23-7.1 conviction and, thus, there was no case before the Court in which the City‘s appearance would constitute such a waiver.
The essential question in this case, however, is whether the notice of appeal timely filed by Ghameshlouy on July 31, 2007, although defective, was sufficient to cause the potential jurisdiction of the Court of Appeals to consider such appeals to ripen into active jurisdiction over this specific case. The notice of appeal filed by Ghameshlouy identified the conviction which he sought to appeal by its docket number in the circuit court, and by further indicating that it was an appeal from a “final judgment of the Circuit Court of the City of Virginia Beach, rendered . . . on July 24, 2007” in which Ghameshlouy was convicted of “the charge of refusing to provide identification to a police officer, a violation of [the] Virginia Beach municipal code.” (Emphasis added.) Moreover, since a court ” ‘speaks only through its orders,’ ” Jefferson v. Commonwealth, 269 Va. 136, 139, 607 S.E.2d 107, 109 (2005) (citation omitted), at the time this
The Court of Appeals having obtained jurisdiction over the case, the defect in the notice of appeal in not naming the proper appellee, which otherwise would have justified dismissal of the appeal, was potentially subject to waiver. That waiver clearly occurred by the subsequent actions of the City and Ghameshlouy‘s assertion of that waiver when the issue was raised for the first time by the Commonwealth after the appeal had been briefed by the Commonwealth and the City jointly. Accordingly, we hold that the Court of Appeals erred in dismissing Ghameshlouy‘s appeal of his VBCC § 23-7.1 conviction on the ground that it did not have jurisdiction over the case or the proper appellee.
For these reasons, we will reverse the judgment of the Court of Appeals dismissing Ghameshlouy‘s appeal. Because the Court of Appeals did not reach the merits of the issue whether the circuit court erred in ruling that a motel room was a “public place or place open to the public” for purposes of applying VBCC § 23-7.1, we will not address that issue here, but will remand the case to the Court of Appeals for further proceedings consistent with the views expressed in this opinion. Upon remand, the style of the case shall be amended to reflect that the City of Virginia Beach is the appellee.
Reversed and remanded.