DANIEL ERNEST McGINNIS v. COMMONWEALTH OF VIRGINIA
Record No. 180055
Supreme Court of Virginia
December 13, 2018
OPINION BY SENIOR JUSTICE LAWRENCE L. KOONTZ, JR.
Present: Lemons, C.J., Goodwyn, McClanahan, Powell, Kelsey, and McCullough, JJ. and Koontz, S.J. FROM THE COURT OF APPEALS OF VIRGINIA
Consistent with our Rule 5:17(c)(1), McGinnis has assigned error to the judgment of the Court of Appeals. We take this opportunity to stress that the failure of counsel to heed the directives of Rule 5:17(c)(1)(ii) that 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 this Court” and “[i]f the error relates to failure of the Court of Appeals to rule on any issue, error must be assigned to such failure to rule,” are among the principal reasons an appeal from the Court of Appeals is dismissed by this Court without a review of the merits of the underlying claim. See, e.g., Davis v. Commonwealth, 282 Va. 339 (2011).
- The Court of Appeals erred in finding that Mr. McGinnis’ assignment of error was not preserved for appeal under Rule 5A:18 and thus not addressing the merits of the issue.
- The Court of Appeals erred in denying appellant‘s counsel‘s motion to this Court to sign a copy of the Motion filed in the trial court and have that newly signed copy then added to the record on appeal.
- The Trial Court erred in convicting Mr. McGinnis of three counts of larceny by worthless check, in violation of
Va. Code §18.2-181 , as the evidence was insufficient as a matter of law.
In cases where the Court of Appeals has determined that it cannot reach the merits of an assignment of error because of a procedural bar, we review de novo that court‘s application of its rules to determine whether the procedural bar was properly applied. Jay v. Commonwealth, 275 Va. 510, 517 (2008). In this context, we begin our review of this case with a summary of the appellate proceedings that resulted in the Court of Appeals affirming McGinnis’ convictions without reviewing the merits of his assignment of error.
A. Proceedings Relevant to Preservation of Error in the Circuit Court and Court of Appeals
The circuit court entered final judgment against McGinnis in a sentencing order dated December 29, 2016. On January 18, 2017, the twentieth day after entry of the final judgment, McGinnis filed a pleading styled as a “motion to set aside verdict and for a new trial.” Therein, McGinnis contended that the evidence was insufficient to sustain his convictions because the
The motion was signed by McGinnis personally and served on the Commonwealth‘s Attorney. However, the motion had no provision for a signature by his trial counsel nor does the certificate of service indicate that a copy of the motion was served on his trial counsel. On January 19, 2017, the final day of the circuit court‘s jurisdiction under Rule 1:1, the circuit court considered the motion and entered an order denying McGinnis’ motion to set aside the verdict and for a new trial.
On January 20, 2017, McGinnis’ appellate counsel2 filed a notice of appeal “from the final judgment of the Lynchburg Circuit Court entered on December 29, 2016.” On April 19, 2017, McGinnis’ counsel electronically filed a petition for appeal in the Court of Appeals asserting one assignment of error:
The Trial Court erred in convicting Mr. McGinnis of three counts of larceny by worthless check, in violation of
Va. Code §18.2-181 , as the evidence was insufficient as a matter of law.
In compliance with Rule 5A:12(c)(1), McGinnis averred that this error had been preserved in the “Motion to Set Aside filed January 18, 2017, and Order dated January 19, 2017.” The Court of Appeals granted McGinnis an appeal on this assignment of error in an order dated June 7, 2017.
Is a motion to set aside the verdict that was signed by the defendant but was not signed by the defendant‘s attorney of record sufficient to preserve an issue for appellate review? See
Code Section 8.01-271.1 .”
On October 4, 2017, McGinnis’ appellate counsel “requested to sign the original Motion that is located in the Lynchburg Circuit Court Clerk‘s Office. The Clerk‘s Office denied this request . . . and did not permit him to sign the original Motion.” McGinnis, 68 Va. App. at 266. On October 6, 2017, McGinnis’ appellate counsel, relying upon
On October 11, 2017, the Court of Appeals heard oral argument in the appeal. At that time the Court asked McGinnis’ counsel whether a pro se motion “raised at the last second” provided the circuit court with an opportunity to rule on the issue and, thus, preserve it for appeal. See, e.g., Commonwealth v. Bass, 292 Va. 19, 26 (2016) (an objection must be raised “at a point in the proceeding when the trial court is in a position not only to consider the asserted error, but also to rectify the effect of the asserted error“). Counsel conceded that had the circuit court not ruled on the motion before it lost jurisdiction over the case, the appeal likely would be
The Court of Appeals then asked counsel to address the significance of McGinnis having been “represented by counsel throughout the entire time in the trial court,” and, thus, “he was never pro se.” McGinnis’ counsel, while conceding that McGinnis was “technically represented by counsel,” contended that the filing of the motion pro se “does not matter in this case.” McGinnis’ counsel contended that
Addressing the procedural issue in its opinion, the Court of Appeals relied upon our decision in Shipe v. Hunter, 280 Va. 480, 484 (2010), for the principle that a represented party generally is not permitted to file pro se pleadings. The Court of Appeals further relied upon the provision in our Rule 1:4(c) that “[c]ounsel or an unrepresented party who files a pleading shall sign it,” finding that the use of the disjunctive “or” indicated that represented parties were not authorized to sign pleadings. Similarly, the Court of Appeals noted that our Rule 1:5(c) makes reference to unrepresented parties being permitted to file pleadings.
B. Analysis of the Procedural Issue
We begin our analysis of this issue by addressing the Court of Appeals’ application of Shipe. Shipe is the most recent in a series of cases in which we have addressed the efficacy of a pleading “signed only by a person . . . who is not licensed to practice law in Virginia.” 280 Va. at 483; see also, e.g., Aguilera v. Christian, 280 Va. 486 (2010); Kone v. Wilson, 272 Va. 59 (2006); Nerri v. Adu-Gyamfi, 270 Va. 28 (2005); Wellmore Coal Corp. v. Harman Mining Corp., 264 Va. 279 (2002). In Shipe, the issue was whether an attorney not licensed to practice law in Virginia could sign a pleading on behalf of a Virginia attorney in his capacity as “co-counsel” without having been admitted to practice pro hac vice, 280 Va. at 482, while in Aguilera, decided the same day as Shipe, we considered whether a pro se litigant may validly authorize a person not licensed to practice law in Virginia to sign a pleading on the litigant‘s behalf. Aguilera, 280 Va. at 487. In Wellmore Coal the issue was whether a pleading signed only by a foreign attorney admitted pro hac vice was sufficient where it was not also signed by a Virginia attorney in violation of Rule 1A:4. 264 Va. at 281. In Kone the issue was whether the administrator of a decedent‘s estate may file a wrongful death action pro se, 272 Va. at 61, and
In each of these cases we held that such pleadings were “invalid.” Shipe, 280 Va. at 485; Aguilera, 280 Va. at 489; Kone, 272 Va. at 63; Nerri, 270 Va. at 31; Wellmore Coal, 264 Va. at 283. In none of these cases, however, were we required to consider the efficacy of a pleading filed pro se by a represented party. Likewise, in Spencer v. Commonwealth, 238 Va. 295 (1989), the issue was not the efficacy of a pleading filed pro se by a represented criminal defendant, but whether a criminal defendant could serve as his own co-counsel in order to assert control over the presentation of his case at trial. See id. at 302-03. Thus, while these cases may have some instructional value in the analysis of the issue presented in the present case, none is sufficiently on point to be dispositive of that issue.
There can be no question that “every pleading, written motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record” or by a party “proceeding pro se.”
Neither Rule 1:4 nor Rule 1:5 provides for any sanction for the failure to sign a pleading.
In the Court of Appeals and again on appeal to this Court, McGinnis‘s counsel has contended that because the absence of the signature of an attorney of record was not “called to the attention” of the parties until the issue was raised sua sponte by the Court of Appeals, the pleading had not yet been stricken and was still subject to cure by the appending of his signature. This argument, however, misses the point. The safe harbor provision of
The Commonwealth urges us to construe the language of the statute permitting “[a] party who is not represented by an attorney” to file a pleading pro se as implicitly meaning that a party who is represented by an attorney may not do so. Applying this construction, the Commonwealth contends that the present case is no different than Wellmore Coal and its
We can certainly envision circumstances where a criminal defendant, for example being unable to contact his counsel or having counsel refuse to act on his behalf and facing the expiration of the 21-day period under Rule 1:1, would wish to prosecute a post-verdict motion pro se. The record in the present case does not reflect why trial counsel did not sign McGinnis’ post-conviction motion. Nevertheless, we conclude that we are unable to make a determination of this issue in the present case because it is the function of appellate courts to interpret statutes passed by the General Assembly, not to add language to them to address situations perhaps not contemplated when the legislation was drafted.4 “Courts cannot ‘add language to the statute the General Assembly has not seen fit to include.’ Holsapple v. Commonwealth, 266 Va. 593, 599 (2003). ‘[N]or are they permitted to accomplish the same result by judicial interpretation.’ Burlile v. Commonwealth, 261 Va. 501, 511 (2001).” Washington v. Commonwealth, 272 Va. 449, 459 (2006).
In any event, in cases where the ability of the Court to review an issue on appeal is in doubt, we may “assume without deciding” that the issue can be reviewed provided that this permits us to resolve the appeal on the best and narrowest grounds. See, e.g., Commonwealth v. White, 293 Va. 411, 419 (2017). Accordingly, we will assume, without deciding, that the circuit
Because we do not resolve the procedural issue upon which the Court of Appeals based its judgment, we will reverse that judgment. However, finding that we can resolve this appeal on its merits by addressing de novo the question of law presented by McGinnis’ third assignment of error and enter final judgment here, we need not remand the case to the Court of Appeals. Town of Leesburg v. Giordano, 280 Va. 597, 611 (2010) (holding that where an appeal presents a pure question of law, remand is unnecessary if final judgment may be entered on appeal).
C. Proceedings in the Circuit Court Relevant to the Merits of the Third Assignment of Error
McGinnis was the owner of “Quest Media,” an event planning service. Quest Media had an agreement with the Kirkley Hotel (“the Kirkley“) to hold events at the hotel. Under this agreement, McGinnis was authorized to collect money for the Kirkley as an authorized vendor. McGinnis was also permitted to collect for guest rooms used by event attendees and for the food and beverages prepared and served by the Kirkley at Quest Media events. McGinnis was then required to pay the Kirkley for these expenses.
In early 2015, Quest Media and McGinnis held two events at the Kirkley. On the weekend of February 27-28, Quest Media sponsored an event described as “Walton‘s Homecoming 2015.” In addition to the use of the Kirkley‘s facilities and services, Quest Media incurred expenses for guest rooms between February 26 and March 3, 2015. A program called “Dead End Con” was held at the Kirkley on April 17-19, 2015 with Quest Media incurring expenses for guest rooms, facilities and services between April 16-20, 2015.
According to the Kirkley‘s accounting statements for these events, the expenses for Walton‘s Homecoming 2015 were billed to Quest Media, while those for the Dead End Con
On June 2, 2015, the Kirkley sent McGinnis and Quest Media a certified letter informing McGinnis of the returned checks and requesting immediate payment for the total amount of $4,554.44. The Kirkley received the return receipt for this letter showing that it had been delivered on June 5, 2015. Two additional letters sent to McGinnis later that month were returned by the postal service as undeliverable with no forwarding address.
On August 4, 2015, a felony arrest warrant was issued against McGinnis charging him with three violations of
McGinnis testified that he typically would present a check for payment on a Quest Media account to a sales representative at the Kirkley on a Friday of an event and request that it not be deposited until the following Monday because the funds necessary to cover the checks would be collected during the weekend and deposited the following Monday. He maintained that this was the common practice under this agreement with the owner of the Kirkley. He further maintained that he would have followed this practice with regard to the three checks at issue.
On cross-examination, McGinnis conceded that he knew the three checks had been returned for insufficient funds. He maintained that he did not intend to defraud the Kirkley because at that time he had “five or six more [events] on the books” from which he intended to pay off existing and future debts to the Kirkley. However, in June 2015, McGinnis abruptly closed Quest Media, vacated his leased office space, and plans for further events at the Kirkley were cancelled.
In its summation, the circuit court noted that there was no evidence as to what agreement McGinnis may have had with the Kirkley with respect to holding the checks apart from his claim to have discussed this with the hotel‘s owner. The court expressly stated that it did not find McGinnis’ assertion of such an agreement with the hotel to be credible. The court then reviewed the dates on which the checks were delivered, noting that only the first was presented on a Friday in advance of a scheduled event at the Kirkley, the checks were not deposited for payment until
McGinnis was sentenced to nine years’ imprisonment with six years and six months suspended. As discussed above, on the twentieth day after the sentencing order was entered, McGinnis filed a pro se motion to set aside his convictions. In denying McGinnis‘s motion, the circuit court did not state its rationale for doing so.
D. Analysis of the Merits of the Third Assignment of Error
The issue presented in McGinnis’ third assignment of error, and the contentions of the parties thereon, is straightforward. In sum, we are asked to resolve whether the language relied upon by McGinnis, which the General Assembly added to
In any case involving statutory construction we begin with the language of the statute. Appalachian Power Co. v. State Corp. Comm‘n, 284 Va. 695, 705 (2012). In considering the construction to be given the language of
Any person who, with intent to defraud, shall . . . deliver any check . . . upon any bank knowing, at the time of such . . . delivering, that [he] has not sufficient funds in, or credit with, such bank . . . for the payment of such check . . . although no express representation is made in reference thereto, shall be guilty of larceny; and, if this check . . . has a represented value of $200 or more, such person shall be guilty of a Class 6 felony.
The word “credit” as used herein, shall be construed to mean any arrangement or understanding with the bank, trust company, or other depository for the payment of such check, draft or order.
Any person . . . delivering any such check . . . in payment as a present consideration for goods or services for the purposes set out in this section shall be guilty as provided herein.
We have previously held that
Prior to the 1978 amendment of
Given the fact that
The construction of a statute given by the Attorney General, while not binding on the courts, is entitled to due consideration. Board of Supervisors v. Marshall, 215 Va. 756, 762 (1975); see also Commonwealth v. Williams, 295 Va. 90, 98 (2018). As the Attorney General‘s opinion is addressed directly to the issue raised in this appeal, we will give consideration to the assertion therein that the 1978 amendment “does not negate language contained in the first paragraph.” That is, we must determine whether the addition of the final paragraph of
In Payne, prior to the amendment of
We have not previously construed
As we have already noted,
We hold that as defined by
Accordingly, when reviewing a conviction under
McGinnis conceded that he knew that he did not have sufficient funds in his bank accounts when he delivered the checks to the Kirkley. Moreover, he further conceded that he needed the Kirkley to continue to extend him credit for future events being planned by Quest Media in order for him to have sufficient funds in his bank accounts to pay the Kirkley. It is a reasonable inference from this evidence that McGinnis, cognizant that his business was in financial difficulty, passed the checks to the Kirkley with the fraudulent intent to have the hotel continue to extend him credit. In this respect, it is of particular significance that the circuit court
In refusing McGinnis’ motion to vacate his convictions, the circuit court implicitly found that
E. Conclusion
For the reasons stated above, we will reverse the judgment of the Court of Appeals, vacate the December 12, 2017 opinion of the Court of Appeals, and reinstate the judgment of the circuit court.
Reversed, vacated, and final judgment.