Roberson v. Com.

Present: All the Justices

CHAD CRAWFORD ROBERSON
OPINION BY
v. Record No. 091299 JUSTICE LAWRENCE L. KOONTZ, JR.
February 25, 2010
COMMONWEALTH OF VIRGINIA 1

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, the dispositive issue we consider is

whether the Court of Appeals correctly determined that an

appeal of a conviction for driving under the influence (“DUI”)

pursuant to a local ordinance was procedurally barred because

the notice of appeal failed to name the locality, an

indispensable party, as the appellee. The appellant contends,

as he did in the Court of Appeals, that the DUI conviction was

obtained under a state statute and, thus, the notice of appeal

properly named the Commonwealth as the appellee.

BACKGROUND

Because the Court of Appeals dismissed the appeal without

addressing the merits of the appellant’s challenge to the DUI

conviction, we are concerned here only with the procedural

1
This appeal was decided in the Court of Appeals sub nom.
Roberson v. City of Virginia Beach. Because the principal
issue in the appeal is the identity of the proper appellee,
and consistent with our usual practice, we docketed the appeal
using the style given by Roberson in his notice of appeal in
the Court of Appeals identifying the Commonwealth as the
appellee.
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 May 19, 2007, a City of

Virginia Beach police officer arrested Chad Crawford Roberson

for DUI. On the preprinted summons form completed by the

officer at the scene, the officer checked a box indicating

that Roberson was being charged under “City law section 21-

1/18.2-266.” A warrant of arrest subsequently issued by the

Virginia Beach Magistrate on a preprinted form described the

offense as a “Misdemeanor (Local)” and identified the offense

as a “violation of Section 21-1/18.2-266, Code or Ordinances

of this city.” Other preprinted language on the warrant

stated that “any authorized officer” was “commanded in the

name of the Commonwealth of Virginia” to affect the arrest.

The commitment order concurrently entered with the warrant

stated that Roberson was being charged under a “local

ordinance” and identified the offense as “Code Section 21-

1/18.2-266.”

Section 21-1 of the Virginia Beach City Code

(hereinafter, “VBCC § 21-1”), in relevant part, provides that

“[p]ursuant to the authority of § 46.2-1313 of the Code of

Virginia, 1950, as amended, all of the provisions and

requirements of the laws of the State contained in Title 46.2

2
and Article 2 (§ 18.2-266 et seq.) of Chapter 7 of Title 18.2

of the Code of Virginia, as amended, and pursuant to § 1-220

of the Code of Virginia as amended in the future . . . are

hereby adopted and incorporated in this Chapter by reference

and made applicable within the City.” Code § 18.2-266, in

relevant part, makes it “unlawful for any person to drive or

operate any motor vehicle . . . while such person is under the

influence of alcohol.”

On September 11, 2007, Roberson was tried on the warrant

of arrest in the City of Virginia Beach General District

Court, entered a plea of not guilty, and was found “guilty as

charged” by the court. Roberson noted an appeal from the

judgment of the general district court.

On appeal in the Circuit Court of the City of Virginia

Beach, Roberson was tried without a jury and was again

convicted of DUI. The order of conviction, entered on

November 5, 2007, was styled “City of Virginia Beach v. Chad

Crawford Roberson.” However, the order makes no reference to

VBCC § 21-1, identifying the offense of conviction as a

violation of Code § 18.2-266.

On November 21, 2007, Roberson filed a notice of appeal

from the judgment of the circuit court styled as “Commonwealth

of Virginia, Plaintiff v. Chad Crawford Roberson, Defendant”

and denoted the appellee in the Rule 5A:6(d) certificate as

3
“the Commonwealth of Virginia.” The notice of appeal

contained the circuit court docket number of Roberson’s case,

recited that he was convicted of DUI, and recited the jail

portion of the sentence imposed. However, the notice of

appeal did not identify the date of the trial or the date of

the final order; nor did it reference either VBCC § 21-1 or

Code § 18.2-266 as the offense of conviction.

On December 20, 2007, Roberson’s counsel presented a

statement of facts to the circuit court and again the style of

the case denoted the Commonwealth as the prosecuting

authority. Throughout the statement of facts the prosecuting

authority was similarly designated as “the Commonwealth.”

Jason S. Miyares, an Assistant Commonwealth’s Attorney for the

City of Virginia Beach, signed the statement of facts as “Seen

and Agreed.” The circuit court entered the statement of facts

without modification.

The Court of Appeals received the record of Roberson’s

case from the circuit court on December 30, 2007. The style

of the case on the cover sheet of the record containing the

circuit court clerk’s certification styled the case as

“Commonwealth of Virginia [v.] Chad Crawford Roberson,

Defendant,” and identified Miyares as the “attorney for the

Commonwealth.” In accord with the style of the notice of

appeal and the certified record received from the circuit

4
court, the Clerk of the Court of Appeals docketed the appeal

as “Chad Crawford Roberson v. Commonwealth of Virginia.”

On March 7, 2008, Roberson filed his petition for appeal

in the Court of Appeals. The petition was styled with the

Commonwealth as the appellee; the Rule 5A:12(c) certificate at

the conclusion of the petition, while not identifying the

appellee, stated that a copy of the petition had been mailed

“to counsel for the Appellee, Jason Miyares, Assistant

Commonwealth Attorney for the City of Virginia Beach.”

Throughout the petition for appeal, Roberson identified the

offense of conviction as a violation of Code § 18.2-266, with

no reference to VBCC § 21-1 being made.

On March 28, 2008, Miyares, the Virginia Beach Assistant

Commonwealth’s Attorney, filed a brief in opposition to

Roberson’s petition for appeal. Like the petition for appeal,

the brief in opposition referenced the offense of conviction

as a violation of Code § 18.2-266, with no reference to the

charge having been brought under VBCC § 21-1. Likewise, in

the style of the case and in the certificate, the Commonwealth

was identified as the appellee.

On July 17, 2008, the Court of Appeals entered an order

awarding Roberson an appeal. Although the record contains no

explanation, the order granting the appeal restyled the case

as “Chad Crawford Roberson, Appellant v. Commonwealth of

5
Virginia/City of Virginia Beach, Appellee.” The order further

stated that it was served on “all counsel of record.”

On August 26, 2008, Roberson filed his opening brief in

the Court of Appeals. As before with his petition, and

contrary to the revised style of the case in the Court of

Appeals’ July 17, 2008 order, Roberson identified the

Commonwealth as the sole appellee. Likewise, within the brief

he maintained that he had been convicted of DUI under Code

§ 18.2-266, making no reference to VBCC § 21-1.

On September 26, 2008, the Attorney General filed a brief

on behalf of the Commonwealth. This brief was styled in

accord with the July 17, 2008 order giving both the

Commonwealth and the City as joint appellees. Significantly,

within the brief, the Commonwealth noted for the first time

the apparent discrepancy in the record with regard to whether

Roberson had been convicted under the state statute or the

local ordinance. The Commonwealth averred that it believed

there was a “clerical error” in the circuit court’s final

order, which recited the offense of conviction as Code § 18.2-

266, but styled the conviction as having been procured by the

City. Accordingly, the Commonwealth indicated on brief its

intent to request leave of the Court of Appeals to seek a

correction of the final order in the circuit court to reflect

6
that the Commonwealth was the prosecuting authority. A motion

to that effect was filed along with the Commonwealth’s brief.

In an order dated December 9, 2008, the Court of Appeals

granted the Commonwealth’s motion. The order stated that

“leave is hereby granted the trial court to consider a motion

to correct, nunc pro tunc, the [November 5, 2007 final]

order.” The order further noted that there is “an alleged

clerical error in the order.”

In response to the Court of Appeals’ December 9, 2008

order, the circuit court entered an order dated December 15,

2008 stating that “an order of correction is not needed.” The

circuit court expressly found that Roberson had been charged

and convicted of DUI under VBCC § 21-1. While acknowledging

that the local ordinance adopts Code § 18.2-266 by reference,

the circuit court concluded that the reference to the state

code section on the warrant and in other court documents

identified the nature of the offense only, not the statute

under which the offense was to be prosecuted. Accordingly,

the circuit court declined to modify its November 5, 2007

order to reflect that the Commonwealth was the prosecuting

authority.

Thereafter, the Attorney General advised the Court of

Appeals by letter that, in light of the circuit court’s

December 15, 2008 order, the Commonwealth was of opinion that

7
Roberson “named the incorrect appellee in his notice of

appeal.” The Attorney General further noted that it did not

have authority to represent the City in the appeal. See Code

§ 2.2-511(A).

On March 31, 2009, the Court of Appeals issued a

published opinion in which it styled the case as “Chad

Crawford Roberson v. City of Virginia Beach,” explaining in a

footnote that the style had been modified “to correctly

reflect our holding as to the proper appellee.” Roberson v.

City of Virginia Beach, 53 Va. App. 666, 666 n.1, 674 S.E.2d

569, 569 n.1 (2009). The Court reviewed the procedural

history of the case through the entry of the December 15, 2008

order in the circuit court, and specifically found that “[t]he

Commonwealth’s Attorney for the City of Virginia Beach did not

appear on behalf of the City of Virginia Beach in connection

with this appeal.” Id. at 669, 674 S.E.2d at 570 (emphasis

added). Holding that the December 15, 2008 order “clarified

that the City of Virginia Beach was the proper plaintiff in

the case at trial” and that “Roberson did not join the City of

Virginia Beach in his appeal,” the Court, citing Woody v.

Commonwealth, 53 Va. App. 188, 198, 670 S.E.2d 39, 44 (2008),

concluded that it “lack[ed] jurisdiction to consider [the

appeal].” Roberson, 53 Va. App. at 671, 674 S.E.2d at 571.

Accordingly, the Court dismissed Roberson’s appeal.

8
 After noting an appeal of these judgments in the Court of

Appeals, Roberson filed a motion in this Court again seeking

leave to have the circuit court correct the record to reflect

that the Commonwealth was the prosecuting authority on the DUI

conviction. Persisting in his view that the City was not a

party to the appeal, Roberson styled his notice of appeal and

this motion as “Chad Crawford Roberson v. Commonwealth of

Virginia” and served the motion and all subsequent pleadings

filed in this Court prior to the opening brief of the granted

appeal only on the Attorney General. In his petition for

appeal, Roberson contended that the Court of Appeals erred in

determining that it lacked jurisdiction over the appeal

because the Commonwealth was the “correct party in interest.”

The Attorney General responded to Roberson’s motion on

behalf of the Commonwealth, contending that the December 15,

2008 order resolved the issue of the identity of the

prosecuting authority in the circuit court. By separate

letter, the Attorney General advised the Court that it did not

intend to respond to the petition for appeal because “the

Attorney General does not represent the City.” Both this

letter and the response to the motion were styled in accord

with the opinion of the Court of Appeals giving the City as

the appellee. In an order dated August 19, 2009, we denied

9
Roberson’s motion for leave to seek correction of the record

in the circuit court.

Subsequently, in an order dated September 11, 2009, we

awarded Roberson this appeal. In that order, we directed the

City to appear and address the issue of whether the City was

the proper appellee and, if so, whether it had made an

appearance before the Court of Appeals. Likewise, we directed

the Commonwealth to appear and address the issue of whether it

was the proper appellee.

DISCUSSION

The similarity of the procedural posture of Roberson’s

appeal before the Court of Appeals with that of the appeals in

Ghameshlouy v. Commonwealth, 54 Va. App. 47, 675 S.E.2d 854

(2009), rev’d and remanded, 279 Va. ___, ___ S.E.2d ___

(2010)(this day decided), and Woody, the decision upon which

the Court of Appeals based its dismissals of the present

appeal and the appeal in Ghameshlouy, are readily apparent.

However, there are dissimilarities among these three cases

that distinguish them and that warrant a brief review in order

to explain the decisions rendered by this Court in resolving

the challenges raised by the appellants in each case. As will

become apparent, the differences in their records, and the

different manner in which the appellants sought to challenge

the dismissal of their appeals by the Court of Appeals,

10
control our analysis of the jurisdictional issue in each

appeal.

We begin with Woody. The defendant in that case was

convicted in Amherst County of DUI under Amherst County Code

§ 9.1, a local ordinance that for all practical purposes is

identical to VBCC § 21-1. Woody, 53 Va. App. at 191-92 & n.1,

670 S.E.2d at 41 & n.1. As in the present case, the record in

the trial court was inconsistent as to whether Woody was

convicted of DUI pursuant to the state statute or local

ordinance. Id. at 193, 670 S.E.2d at 42. After Woody filed a

notice of appeal which styled the appeal as being against the

Commonwealth and identified the Commonwealth as the only

appellee, the Court of Appeals directed the trial court to

clarify its final order. In accord with that direction, the

trial court confirmed that Woody had been charged and

convicted under the local ordinance. Id.

In Woody, the argument advanced before the Court of

Appeals by the appellant was that service of the notice of

appeal on the Commonwealth’s Attorney, who, as in the present

case, had prosecuted the local ordinance offense in the

circuit court, “effectively joined the County as a party.”

Id. at 197-98, 670 S.E.2d at 44. The Court of Appeals

rejected this contention. The Court also noted that “[t]he

County has not appeared as a party on any pleading filed in

11
this Court. It has not filed a brief in opposition to Woody’s

petition for appeal nor a brief in opposition to Woody’s

opening brief. In fact, there is no evidence in the record

that the County is even aware that this appeal is pending.

Thus, the argument that the opposing party is fully aware of

the issues is completely unsupported by the facts.” Id. at

199 n.7, 670 S.E.2d at 45 n.7. Accordingly, the Court found

that it did not have jurisdiction to consider the appeal of

the DUI conviction under the local ordinance and dismissed the

appeal. Id. at 199-200, 670 S.E.2d at 45.

Upon appeal to this Court, Woody did not reassert the

argument that the locality had actual notice and, thus, was a

de facto party to the appeal. Rather, similar to the

principal argument advanced by Roberson in this case, Woody

maintained that the circuit court record supported his

contention that the Commonwealth, not the locality, had been

the prosecuting authority on the DUI offense. This argument

had not been advanced in the Court of Appeals and, thus, could

not be considered for the first time on appeal to this Court.

Rule 5:25. Accordingly, we refused Woody’s petition for

appeal. Woody v. Commonwealth, Record No. 090229 (May 22,

2009)(order).

In Ghameshlouy, the defendant was convicted of various

state charges as well as the violation of a local ordinance

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for giving false identification to police. 279 Va. at ___,

___ S.E.2d at ___. In a notice of appeal seeking to challenge

only the conviction under the local ordinance, Ghameshlouy

styled the appeal as being against the Commonwealth and

identified the Commonwealth as the only appellee. However,

within the notice of appeal there were references, including

an express statement that the conviction had been obtained

under a local ordinance, clearly indicating that the appeal

pertained to the local ordinance conviction. Id. at ___, ___

S.E.2d at ___.

The local Commonwealth’s Attorney filed a response to

Ghameshlouy’s petition for appeal in the Court of Appeals

addressing the merits of his challenge to the local ordinance

conviction, as well as the merits of one of the state

convictions that Ghameshlouy had concurrently appealed in the

petition. 2 Id. at ___, ___ S.E.2d at ___. The Court of

Appeals awarded Ghameshlouy an appeal to review the local

ordinance conviction only. After the appeal had been briefed,

the Commonwealth filed a motion to dismiss, asserting that the

2
The state convictions and local ordinance conviction had
been assigned separate docket numbers in the circuit court.
Accordingly, although tried together, the various convictions
had separate records. Ghameshlouy filed a separate notice of
appeal in the record of the state conviction which he
challenged, but filed a single petition for appeal as
permitted by Rule 5A:12(d).

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Court lacked jurisdiction over the appeal because Ghameshlouy

had failed to identify the locality as the proper appellee on

the local ordinance conviction in the notice of appeal.

Ghameshlouy acknowledged that there was a defect in the notice

of appeal. He contended, however, that any objection to that

defect had been waived by the participation of the

Commonwealth’s Attorney as counsel for the locality by

addressing the merits of the challenge to the local ordinance

conviction in opposing the petition for appeal and then

joining in the Commonwealth’s brief on the merits of the

granted appeal which had been limited to a review of the local

ordinance conviction. Id. at ___, ___ S.E.2d at ___.

A divided panel of the Court of Appeals held that the defect

in Ghameshlouy’s notice of appeal of failing to name the

locality as the necessary party to the appeal deprived the

Court of jurisdiction over the case and that under the

procedural facts of the case waiver was not available to cure

the defect. Id. at ___, ___ S.E.2d at ___.

We granted Ghameshlouy an appeal from this judgment, and,

for reasons more fully stated in our opinion in that case,

reversed and remanded the case to the Court of Appeals. Id.

at ___, ___ S.E.2d at ___. To the extent that the rationale

for our decision in Ghameshlouy impacts the analysis of the

14
issues in this case, we will include those aspects of the

decision in that case within our discussion below.

In the present case, Roberson asserts that the City of

Virginia Beach was not an indispensable party because the

Commonwealth was the “real party in interest in the appeal.”

Roberson maintains that this is so because he was prosecuted

by the Commonwealth under Code § 18.2-266 rather than by the

City of Virginia Beach under VBCC § 21-1. In support of this

contention, Roberson notes that the warrant of arrest stated

that it was issued “in the name of the Commonwealth of

Virginia.” Additionally, he asserts that the circuit court’s

November 5, 2007 order of conviction, though naming the City

as the prosecuting authority in its caption, makes no

reference to the local ordinance, but identifies the offense

of conviction only as “18.2-266.” Roberson discounts any

import or effect of the order entered by the circuit court on

December 15, 2008 in response to the directive of the Court of

Appeals, contending that this order supports his view that in

drafting that order, the circuit court “substitute[d]” the

City for the Commonwealth solely for the purpose of assuring

that “the city could receive [the] revenue” of the fine

imposed on Roberson. We do not agree with Roberson’s

interpretation of the record in this case.

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 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. In this case, each of

those documents clearly indicates that the City was the

prosecuting authority and that Roberson was charged with a

violation of VBCC § 21-1.

While it is true that the order of conviction did not

refer to the local ordinance, it is clear from the context in

which the case was prosecuted that the reference to Code

§ 18.2-266 in that order identifies that statute as being

incorporated into the Virginia Beach City Code by VBCC § 21-1,

rather than indicating that the case was tried under Code

§ 18.2-266. Any doubt in that regard was resolved

conclusively in favor of the conviction having been obtained

under the local ordinance by the circuit court’s clarification

in its December 15, 2008 order. The court’s reference in that

order to the City receiving the revenue from the fine does

not, as Roberson implies, show an improper motive of the court

in “substituting” the City for the Commonwealth when drawing

the final order. Rather, the statement clearly indicates that

the court was merely aware of the effect of the magistrate

16
having caused the charge to be brought under the local

ordinance.

The record in this case establishes that Roberson was

charged and convicted for DUI pursuant to VBCC § 21-1.

Accordingly, we hold that the Court of Appeals did not err in

finding that the City, not the Commonwealth, was the

prosecuting authority on the DUI charge in the circuit court

and, thus, was the necessary party to be identified in

Roberson’s notice of appeal as the appellee.

Finally, as indicated in the order granting this appeal,

we will consider whether the City actually was a party before

the Court of Appeals. 3 Both the City and the Commonwealth have

taken the position, consistent with the view expressed by the

Court of Appeals in this case, in Woody, and by a majority of

the panel in Ghameshlouy, that the failure of a party to

identify the proper appellee in the notice of appeal alone

3
Despite our direction that this issue would be addressed
in the appeal, Roberson did not file a reply brief responding
to the arguments of the City and the Commonwealth. Moreover,
when during the oral argument of this appeal the Court
attempted to elicit the views of Roberson’s counsel on the
question of the Court of Appeals’ jurisdiction over the appeal
and, if so, whether the City might have waived its objection
to not being named as the appellee in the notice of appeal,
Roberson’s counsel stated that he did not “think it was a
waiver question.” Rather, Roberson continued to maintain that
the issue was one of “fairness” as to whether he should have
been required to determine that the City was the prosecuting
authority by “ferreting out some piece of paper that says City
on it.”

17
deprives an appellate court of jurisdiction over the case.

Thus, they contend that the City was not a party to the appeal

because, in effect, there was no mechanism for the Court of

Appeals to acquire jurisdiction over any aspect of the local

DUI conviction case in the absence of a properly filed notice

of appeal naming the City as the proper appellee.

In Ghameshlouy, we have today explained that proper

jurisdictional analysis initially involves a determination

whether a timely notice of appeal, a mandatory prerequisite to

an appellate court acquiring jurisdiction, adequately

identifies the case to be appealed. Ghameshlouy, 279 Va. at

___, ___ S.E.2d at ___. Any defect in the notice of appeal

that does not touch on its timeliness or the identity of the

case to be appealed is procedural only. Thus, the failure to

identify a necessary appellee in the notice of appeal is

subject to being waived by subsequent actions of the unnamed

appellee participating on the merits of the appeal if the

appellant properly asserts the waiver when an objection is

subsequently raised. Id. at ___, ___ S.E.2d at ___.

The sole element of the notice of appeal filed by

Roberson that would have indicated that the case being

appealed was for the conviction under the local ordinance was

the circuit court’s docket number in the caption of the

notice. A docket number serves only to direct the circuit

18
court’s clerk to file a pleading in the specified record. On

its face, the notice of appeal appears to be what Roberson has

steadfastly, although incorrectly, maintained it was, i.e. a

notice of appeal for a DUI conviction obtained by the

Commonwealth pursuant to Code § 18.2-266. Given the absence

of information sufficient to identify the offense being

appealed as the conviction for DUI under the local ordinance

on November 5, 2007, the notice of appeal failed to satisfy

the minimum requirements to confer jurisdiction over the case

to the Court of Appeals. Accordingly, while we do not agree

with the Court of Appeals’ rationale for reaching this same

result, we agree that the Court did not have jurisdiction over

the appeal of Roberson’s conviction for DUI under VBCC § 21-1.

CONCLUSION

For these reasons, we hold that the Court of Appeals did

not err in dismissing Roberson’s appeal of his conviction for

DUI under VBCC § 21-1. Accordingly, the judgment of the Court

of Appeals will be affirmed. 4

Affirmed.

4
In light of our resolution of the appeal on these
grounds, we do not reach the issues raised by Roberson’s other
assignment of error.

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