Insufficient evidence appeal procedurally defaulted

Appellant’s appeal cannot be considered because he did not timely file transcripts. Although the trial court heard and denied a post-trial motion to reconsider the guilty verdict after sentencing appellant, this did not extend the deadline for filing the transcripts. The sentencing order was the final order in the case.

Background

After a bench trial, appellant was convicted of “using a communications system to solicit a minor at least fifteen years old but younger than eighteen for sexual activity[.]” He moved for reconsideration, arguing that the crime for which he was convicted was not a lesser included offense of the charged offense.

The court sentenced appellant on Dec. 2, 2019, without ruling on the motion to reconsider. The sentencing order was entered Dec. 5. On Dec. 19, the court heard and denied the reconsideration motion.

On appeal, appellant argued there was insufficient evidence to convict. He also challenged the court’s ruling on his motion to reconsider. The parties filed briefs. The Court of Appeals asked for “additional briefs addressing the timeliness of the transcripts and whether they are indispensable for consideration of the assignments of error.”

Transcript deadline

“Rule 5A:8(a) requires that for a transcript to be part of the record on appeal, it must be ‘filed in the office of the clerk of the trial court no later than [sixty] days after entry of the final judgment.’ Alternatively, an appellant may submit a written statement of facts in lieu of a transcript in compliance with Rule 5A:8(c). 

“If the appellant fails to ‘ensure that the record contains transcripts or a written statement of facts necessary to permit resolution of appellate issues, any assignments of error affected by such omission shall not be considered.’ …

“We first address what constituted the final judgment in order to determine when it was entered and the date from which the sixty days is counted. A judgment is final if it ‘disposes of the whole subject, gives all the relief contemplated, provides with reasonable completeness for giving effect to the sentence, and leaves nothing to be done in the cause save to superintend ministerially the execution of the order.’ …

“Generally, a sentencing order is considered a final order or final judgment. … In this case, the sentencing order, by its terms, did not contemplate any further proceedings and left nothing more to be done. … Therefore, the sentencing order constitutes the final judgment. …

“The trial court entered the appellant’s sentencing order on December 5, 2019. Accordingly, based on the sixty-day window given by Rule 5A:8, the transcripts were due by February 3, 2020. The court did not enter an order suspending or vacating the sentencing order. Consequently, it remained the final order with no restrictions. …

“The fact that the trial court conducted a hearing to consider the appellant’s post-trial motion to reconsider after entering the sentencing order and ultimately entered an order on January 6, 2020, denying that motion did not extend his deadline for filing the transcripts. As a result, the sixty-day window under Rule 5A:8 began to run on December 5, 2019, and the transcripts were due by February 3, 2020. Neither a transcript nor a statement of facts in lieu of a transcript was filed by that date. Instead, the transcripts were filed eleven days later on February 14, 2020.”

Transcript or facts needed

“We turn next to whether a transcript or a statement of facts is indispensable in addressing the assignments of error. … 

“The assignments of error challenge the sufficiency of the Commonwealth’s evidence regarding the victim’s age and the appellant’s knowledge thereof. It is axiomatic that this Court’s scope of appellate review is limited to the assignments of error. … The record properly before us does not contain any evidence regarding the victim’s age at the time of the offense. We hold that a timely-filed transcript or a written statement of facts in lieu of a transcript is indispensable to a determination of the appellant’s assignments of error. … 

“The appellant failed to ensure that the record contains the material necessary to permit the Court to resolve the assignments of error he presents on appeal. … Therefore, we cannot consider them and affirm the appellant’s conviction.”

Mackey v. Commonwealth, Record No. 0043-20-3, Jan. 26, 2021. CAV (Decker) from Rockbridge County Cir. Ct. (Stein). Charles S. Moore for appellant, Rosemary V. Bourne for appellee. VLW 021-7-009, 7 pp. Unpublished.