Incorrect party named on appeal

Where appellant was convicted under a local ordinance of driving under the influence, the locality, and not the commonwealth, is the proper party on appeal.

As a result, there is no jurisdiction over this appeal.

County conviction

The Henrico County Circuit Court convicted appellant of driving under the influence. “The final order lists ‘Henrico County Ordinance 22-2 incorporating Virginia Code Section 18.2-266,’ as the offense for which appellant was convicted. The order is styled ‘County of Henrico vs. Paul H. Lundmark.’

“Similarly, the warrant in this case cites the Henrico County ordinance, which incorporates the state statute as the offense for which appellant was charged.

“Appellant timely filed a notice of appeal in the trial court naming the Commonwealth of Virginia as the opposing party. The notice styles the case as ‘Commonwealth of Virginia v. Paul H. Lundmark’ and was served on ‘the Commonwealth’s Attorney for the County of Henrico.’

“The notice of appeal lists the circuit court docket number and the date of the final order. Consistent with the notice of appeal, the Clerk of this Court docketed the appeal as ‘Paul H. Lundmark v. Commonwealth of Virginia.’

“The petition for appeal named the Commonwealth as the appellee. An assistant Commonwealth’s attorney filed a brief in opposition to the petition for appeal addressing the merits of the case, signing the brief on behalf of the Commonwealth. No response was filed in the name of Henrico County.

“On December 15, 2021, we granted appellant’s petition for appeal.”

Motion to withdraw

The commonwealth seeks to withdraw as counsel because appellant was tried and convicted under a county ordinance. “[T]herefore, ‘appellee in the appeal is the County of Henrico, not the Commonwealth of Virginia.’

“The Commonwealth states that ‘[w]hile the Attorney General is vested with authority to represent the Commonwealth in criminal appeals, that authority does not extend to matters related to violations of local ordinances’ and thus seeks leave to withdraw as counsel. …

“The Commonwealth avers that it conferred with appellant’s counsel, who advised the Commonwealth that he does not object to the motion and ‘does not plan to file a response to it.’

“We grant the Commonwealth’s motion to withdraw as counsel because the Attorney General does not represent localities. …

“The Attorney General, on behalf of the Commonwealth, further moved the Court to amend the style of the appeal.” Appellant has not responded to the motion. Henrico County has not objected and has not entered an appearance in the case.

No jurisdiction

“For the Court of Appeals to have jurisdiction over a case, a timely notice of appeal must ‘adequately identif[y] the case to be appealed.’ If the notice of appeal is ‘sufficient on its face to identify’ the conviction being appealed, this Court’s potential jurisdiction ‘ripen[s]’ into active jurisdiction over the specific case. …

“‘To adjudicate an appeal, this Court must have jurisdiction over the appeal itself and the indispensable parties.’ …

“‘Where one, or both, is lacking, we cannot adjudicate the appeal. … For this Court to obtain jurisdiction over an individual who was a party in the trial court, the party must be named in the notice of appeal. Otherwise, we lack jurisdiction over the party.’…

“An appellate court does not look to other documents to determine if the notice is sufficient. …

“Here, the notice of appeal was filed timely in the circuit court. It correctly identifies the circuit court, the circuit court docket number, and the date of the sentencing order. The notice, however, incorrectly names ‘Commonwealth of Virginia’ as the prosecuting party, indicating a violation of state law.

“‘The controlling documents for determining what entity served as the prosecuting authority in a criminal trial are the instrument, that is the summons, warrant, or indictment, under which the charge is brought[,] and the orders of conviction and sentencing that conclude the trial.’ …

“Here, both the warrant and final order establish that appellant was charged and convicted under Henrico County Ordinance § 22-2 for driving under the influence. Consequently, Henrico County, not the Commonwealth, was the prosecuting authority.

“It follows that Henrico County ‘was the necessary party to be identified in [the] notice of appeal as the appellee.’ …

“Appellant did not name Henrico County as a party in the appeal and instead incorrectly listed ‘Commonwealth of Virginia’ as the prosecuting party. … Henrico County, an indispensable party, has not been joined in the notice of appeal, has not entered an appearance, and has not waived the procedural defect apparent on the face of the notice of appeal.

“As a result, the notice of appeal ‘failed to satisfy the minimum requirements to confer jurisdiction’ on this Court. … Therefore, we deny the Commonwealth’s motion to amend the style of the case because no proper party has requested that action.

“Upon further consideration, we conclude that we do not have jurisdiction over this appeal because appellant failed to join an indispensable party.”

Appeal dismissed.

Lundmark v. Commonwealth, Record No. 0677-21-2 March 8, 2022. CAV (Humphreys and Frank) (Causey, dissenting) (Published order) From the Henrico County Circuit Court. VLW 022-7-047, 14 pp.