Amendment Allowed for ‘Exact’ Page Reference

After allowing petitioner to amend his timely petition for appeal to remedy an “exact reference” defect under Rule 5A:12(c)(1), the en banc Court of Appeals grants defendant an appeal and affirms his conviction for the abduction and aggravated malicious wounding of his wife, whom he beat with his fists and an iron, leaving her permanently impaired.

Defendant’s petition did not comply with Rule 5A:12(c)(1), which requires that an 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. Upon notice from the clerk’s office, defendant submitted a replacement petition that again failed to contain page references to where he had preserved the alleged errors in the trial court. He then filed a second replacement petition that complied with the Rule.

The requirement of providing an exact reference to where the issue was preserved helps that appellate court to grant review only for cases where the issue was preserved, or where the ends of justice exception applies. The failure to include with each assignment of error an exact reference as required by the Rule does not mandate dismissal. Further, neither the statute, Va. Code § 17.1-408, nor the Rule forecloses this court from allowing a litigant to correct a defect under Rule 5A:12(c)(1).

Both this court and the Supreme Court 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. Reflexive dismissal for defects under Rule 5A:12(c)(1) would be unwarranted.

We conclude defendant, who timely filed a petition for appeal, can file an amended petition even after the deadline for filing the petition for appeal had passed, that corrects defects under Rule 5A:12(c)(1).

Turning to the merits of defendant’s appeal, the court rejects his claim that the evidence was insufficient to prove abduction and malicious wounding.

The fact finder reasonably could infer that defendant, by force or intimidation, intended to and did prevent his wife 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 telephone. The abduction was not intrinsic to the malicious wounding. The conduct underlying the abduction conviction occurred after the malicious wounding. The abduction was separate and apart from the malicious wounding and was not incidental to it.

Defendant did not challenge his malicious wounding conviction in his motion to strike or closing argument, and that claim is waived under Rule 5A:18.

Dissent

Petty, J., joined by Frank, Humphreys & Huff, JJ.: I believe defendant failed to comply with Rule 5A:12(c)(1). In light of the Supreme Court opinion in Davis v. Commonwealth, 282 Va. 339 (2011), I also believe this failure requires us to dismiss this appeal for lack of active jurisdiction. Accordingly, I dissent. Because defendant failed to timely file a petition for appeal that complied with Rule 5A:12(c)(1), I would vacate the order granting his petition and dismiss his appeal.

Chatman v. Commonwealth (McCullough) No. 0858-11-2, March 26, 2013; Dinwiddie County Cir.Ct. (Baskervill) C. Randall Stone for appellant; Alice T. Armstrong, AAG II, for appellee. VLW 013-7-089, 18 pp.