Simmons v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Powell and Senior Judge Coleman
Argued at Richmond, Virginia

LYNELL BUTLER SIMMONS
OPINION BY
v. Record No. 0542-08-2 JUDGE SAM W. COLEMAN III
AUGUST 18, 2009
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Richard D. Taylor, Jr., Judge

John A. March for appellant.

Joshua M. Didlake, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.

Lynell Butler Simmons was convicted of murder, attempted murder, attempted robbery, and

related firearms charges. On appeal, Simmons maintains his attempted murder conviction is void

because he was never arraigned and never entered a plea on that charge. For the reasons that follow,

we disagree and affirm his conviction.

Background

In the early morning hours of June 10, 2007, Jalier Burleigh and his cousin, Jamar

Blackwell, were walking home from a 7-Eleven convenience store when Simmons stepped out from

behind a tree. Simmons pointed a gun at Burleigh and Blackwell and ordered them to empty their

pockets. Upon discovering the men had no money, Simmons shot Burleigh in the head and killed

him. As Blackwell fled, Simmons fired at him as well, narrowly missing him and leaving a bullet

hole in the armpit of his jersey.

Simmons was arraigned on charges of murder, two counts of attempted robbery, use of a

firearm in the commission of murder, two counts of use of a firearm in the commission of
attempted robbery, and use of a firearm in the commission of attempted murder. While the latter

firearm count charged that Simmons used a firearm “while committing or attempting to commit

the . . . murder of Jamar Blackwell,” the trial transcript reflects that the attempted murder charge

was omitted from arraignment. Simmons pled not guilty to each of the charges on which he was

arraigned. In questioning Simmons about his pleas, the trial court inquired whether Simmons

had “had an opportunity to take a look at these indictments,” and Simmons responded

affirmatively. He expressed his understanding of the indictments and acknowledged he had

discussed them with his attorney.

Throughout the trial, the trial court and the parties apparently proceeded under the

assumption that Simmons had been arraigned on the attempted murder charge and had entered a

plea of not guilty. Prior to trial, Simmons’s counsel sought to exclude the introduction of

Blackwell’s bullet-ridden jersey and referred to Blackwell as the “surviving eyewitness, victim.”

In explaining to the jury the charges they would hear, the trial judge stated Simmons had been

charged with the attempted murder of Blackwell, and had pled not guilty. During opening

statements, the Commonwealth’s attorney told the jury they would hear testimony that Simmons

fired at Blackwell after killing Burleigh.

In addition to moving for a mistrial based upon the introduction into evidence of

Blackwell’s jersey, Simmons expressly moved to strike the attempted murder charge. The trial

court denied Simmons’s motions, and instructed the jury, along with instructions on the other

counts, that Simmons was charged with Blackwell’s attempted murder. Simmons’s counsel did

not object to the court instructing the jury on attempted murder. A verdict form for the attempted

murder charge was provided to the jury, also without objection from Simmons’s counsel.

During closing argument, both counsel specifically explained and argued at length the

attempted murder charge. The Commonwealth’s attorney directed the jury’s attention to the

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bullet holes in Blackwell’s jersey and Blackwell’s testimony that appellant fired at him. It also

argued that Simmons’s jailhouse statement that his gun had “f---ed up” meant that it was

supposed to kill Blackwell. The Commonwealth’s attorney asserted that Simmons’s “own words

convict him of murder, attempted murder, attempted robbery, and use of a firearm.” Simmons’s

counsel responded that the correct interpretation of Simmons’s statement was that the gun

accidentally fired. Simmons’s counsel also maintained Blackwell’s testimony about Simmons

shooting at him was not credible because Blackwell did not see appellant firing the gun.

On separate verdict forms, the jury returned a guilty verdict against Simmons on the

attempted murder charge and use of a firearm in the commission of attempted murder. The jury

recommended a sentence of nine years on the attempted murder conviction.

The final order specifically referenced the jury’s findings and sentencing

recommendations with respect to each charge, including attempted murder. The order contained

the following language regarding Simmons’s arraignment: “The defendant was arraigned and

pled NOT GUILTY and requested a trial by jury.” The final order did not specify that Simmons

was arraigned and pled not guilty as to each separate charge. Neither party objected to the

accuracy of the final order language.

Analysis

Simmons maintains his attempted murder conviction is void because the trial court failed

to arraign him on that charge, thereby depriving the trial court of jurisdiction. While Simmons

concedes that he raises the trial court’s failure to arraign him for the first time on appeal, he

asserts that jurisdictional issues may not be waived and may be raised at any time.

The Commonwealth concedes there can be no trial of a felony charge without the entry of

a plea, but maintains Simmons cannot rise above the language of the conviction order stating

Simmons was arraigned and pled not guilty. The Commonwealth notes that a trial court “speaks

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through its orders and those orders are presumed to accurately reflect what transpired.” Citing

Kern v. Commonwealth, 2 Va. App. 84, 88, 341 S.E.2d 397, 400 (1986), the Commonwealth

characterizes the recitals in an order as an “absolute verity . . . not subject to collateral attack.”

While “[a] court speaks through its orders and those orders are presumed to accurately

reflect what transpired,” McBride v. Commonwealth, 24 Va. App. 30, 35, 480 S.E.2d 126, 128

(1997), we are “not restricted to the precise, technical wording of a court’s order when other

evidence in the record clearly establishes that the court had a different intent.” Id. at 36, 480

S.E.2d at 129. “The burden is on the party alleging an irregularity in a court proceeding to show

affirmatively from the record that the irregularity exists.” Howerton v. Commonwealth, 36

Va. App. 205, 212, 548 S.E.2d 914, 917 (2001).

Because the trial transcript clearly demonstrates that Simmons was not arraigned, we

conclude Simmons has met this burden. Cf. id. (errors in final order not established by “flaws in

the record”). Accordingly, we turn to Simmons’s argument that the trial court lacked subject

matter jurisdiction as a result of its failure to arraign him on the attempted murder charge.

“Jurisdiction is a term which can engender much confusion because it encompasses a

variety of separate and distinct legal concepts.” Porter v. Commonwealth, 276 Va. 203, 228, 661

S.E.2d 415, 427 (2008). “‘Subject matter jurisdiction alone cannot be waived or conferred on

the court by agreement of the parties.’” Id. (quoting Morrison v. Bestler, 239 Va. 166, 169-70,

387 S.E.2d 753, 755 (1990)). “Because a court’s power to act presupposes subject matter

jurisdiction, the absence of subject matter jurisdiction ‘may be raised at any time, in any manner,

before any court, or by the court itself.’” Jones v. Commonwealth, 42 Va. App. 142, 146, 590

S.E.2d 572, 574 (2004) (quoting Humphreys v. Commonwealth, 186 Va. 765, 772, 43 S.E.2d

890, 893 (1947)) (footnote omitted).

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 Simmons was indicted for attempted murder in the circuit court. “All the circuit courts of

the Commonwealth ‘have original jurisdiction of all indictments for felonies and of

presentments, informations and indictments for misdemeanors.’” Porter, 276 Va. at 229, 661

S.E.2d at 427 (quoting Code § 17.1-513). See also Code § 19.2-239 (Circuit courts “have

exclusive original jurisdiction for the trial of all presentments, indictments and informations for

offenses committed within their respective circuits.”).

Simmons contends his conviction for attempted murder was void based on his reading of

Code §§ 19.2-254 1 and 19.2-259 2 providing for arraignment as a mandatory requirement for a

circuit court obtaining subject matter jurisdiction. Cf. Porter, 276 Va. at 227-29, 661 S.E.2d at

426-27 (jurisdiction granted to circuit court pursuant to Code § 19.2-239 in nature of territorial

jurisdiction rather than subject matter jurisdiction, and thereby subject to waiver). To support

that position, Simmons relies on Roach v. Commonwealth, 157 Va. 954, 162 S.E. 50 (1932), and

Cassidy v. Peyton, 210 Va. 80, 168 S.E.2d 125 (1969). Based on those cases, Simmons asserts

1
Code § 19.2-254 provides in pertinent part as follows:

Arraignment shall be conducted in open court. It shall consist of
reading to the accused the charge on which he will be tried and
calling on him to plead thereto. In a felony case, arraignment is
not necessary when waived by the accused. In a misdemeanor
case, arraignment is not necessary when waived by the accused or
his counsel, or when the accused fails to appear.
2
Code § 19.2-259 states as follows:

A person tried for felony shall be personally present during the
trial. If when arraigned he will not plead or answer and does not
confess his guilt the court shall have the plea of not guilty entered
and the trial shall proceed as if the accused had put in that plea.
But for the purposes of this section a motion for a continuance,
whether made before or after arraignment, shall not be deemed to
be part of the trial.

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that the failure to arraign a defendant on a felony charge deprives the trial court of subject matter

jurisdiction. We disagree.

Roach and Cassidy were decided based upon Section 4894 and Code § 19.1-240, the

predecessors to Code § 19.2-259. Roach held that “[w]ithout a plea entered in person by the

accused, or by the court, there can be no trial of a felony charge.” Roach, 157 Va. at 960, 162

S.E. at 52. The Supreme Court of Virginia reasoned that, “without a joinder of issue upon any

valid plea . . . there [could] be no trial of a felony charge.” Id. Relying upon this reasoning,

Cassidy held that the entry of a plea was “jurisdictional in nature in the sense that without such a

plea, ‘there can be no trial of a felony charge.’” Cassidy, 210 Va. at 82, 168 S.E.2d at 126

(quoting Roach, 157 Va. at 960, 162 S.E. at 52).

Based upon this premise, Roach and Cassidy held that the entry of a nolo contendere plea

was insufficient to create a joinder of issue and thereby vest the trial court with jurisdiction. See

id. (“The effect of the court’s . . . ruling [in Roach] is that a plea of nolo contendere is not such a

confession of guilt under the statute [Code § 19.1-240] as is sufficient to sustain a conviction.”).

The state of the law governing the entry of pleas and presence at trial and arraignment has

evolved by statute and by caselaw since Cassidy and Roach were decided. A plea of nolo

contendere is now expressly permitted by statute. See Code § 19.2-254 (“[I]n misdemeanor and

felony cases the court shall not refuse to accept a plea of nolo contendere.”). Furthermore, other

requirements under Code § 19.1-240 previously held to be jurisdictional, such as a defendant’s

presence at trial, see Lewis v. Commonwealth, 212 Va. 411, 184 S.E.2d 818 (1971), 3 have since

3
Lewis, decided two years after Roach, held as follows:

Code § 19.1-240 provides “A person tried for felony shall be
personally present during trial. . . .”

This provision, which is declaratory of a principle of the common
law, is an essential part of the process of law provided for the trial
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been held to be subject to waiver. See Jones v. Commonwealth, 227 Va. 425, 429, 317 S.E.2d

482, 484 (1984) (expressly overruling Noell v. Commonwealth, 135 Va. 600, 115 S.E. 679

(1923), “which [had] made the presence of the accused a jurisdictional prerequisite”). See also

Cruz v. Commonwealth, 24 Va. App. 454, 460, 482 S.E.2d 880, 883 (1997) (recognizing a

defendant may waive both his constitutional and statutory right to be present at trial and

reiterating that Noell had been overruled). “Today, we know that an accused by his conduct or

by choice may forfeit or waive any number of rights.” Jones, 227 Va. at 430, 317 S.E.2d at 484.

See, e.g., Bilokur v. Commonwealth, 221 Va. 467, 474, 269 S.E.2d 747, 752 (1980) (waiver of

Sixth Amendment right to confrontation). Significantly, Code § 19.2-254 now provides, “[i]n a

felony case, arraignment is not necessary when waived by the accused.”

Even prior to Noell and Roach, the United States Supreme Court recognized that a

defendant who understands the nature of the charges against him and defends against them may

not void his conviction based upon the absence of a formal arraignment. See Garland v.

Washington, 232 U.S. 642 (1914). See also United States v. Williams, 152 F.3d 294, 299 (4th

Cir. 1998) (“[a] failure to arraign only warrants a reversal if it causes prejudice or impairs a

substantial right”). Garland expressly overruled Crain v. United States, 162 U.S. 625 (1896), a

case decided on grounds similar to those in Roach.

In tracing the historical background against which Garland and Crain were decided, the

Supreme Court of North Carolina observed as follows:

In 1890, in Crain v. United States, supra, the Supreme Court
reversed a felony conviction because the record failed to show that
the accused was ever formally arraigned. Mr. Justice Harlan,

of persons charged with a felony. Conformity to the rule is
essential to jurisdiction and the accused cannot waive it. Noell v.
Commonwealth, 135 Va. 600, 115 S.E. 679 (1923).

Lewis, 212 Va. at 412, 184 S.E.2d at 819 (emphasis added).

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speaking for six members of the Court, said: “[W]e think it may be
stated to be the prevailing rule, in this country and in England, at
least in cases of felony, that a plea to the indictment is necessary
before the trial can be properly commenced, and that unless this
fact appears affirmatively from the record the judgment cannot be
sustained.” Id. at 643. Mr. Justice Peckham, with whom two
members of the Court concurred, wrote a dissenting opinion which
was to become the law twenty-four years later when the Supreme
Court overruled Crain v. United States in Garland v. Washington,
232 U.S. 642 (1914).

In Garland v. Washington, speaking for a unanimous Court,
Mr. Justice Day said with reference to Crain v. United States:

Such rulings originated in that period of English history
when the accused was entitled to few rights in the
presentation of his defense, when he could not be
represented by counsel, nor heard upon his own oath, and
when the punishment of offenses, even of a trivial
character, was of a severe and often of a shocking nature.
Under that system the courts were disposed to require that
the technical forms and methods of procedure should be
fully complied with. But with improved methods of
procedure and greater privileges to the accused, any reason
for such strict adherence to the mere formalities of trial
would seem to have passed away, and we think that the
better opinion, when applied to a situation such as now
confronts us, was expressed in the dissenting opinion of
Mr. Justice Peckham, speaking for the minority of the court
in the Crain Case, when he said:

“‘Here the defendant could not have been injured by an
inadvertence of that nature. He ought to be held to have
waived that which under the circumstances would have
been a wholly unimportant formality. A waiver ought to be
conclusively implied where the parties had proceeded as if
defendant had been duly arraigned, and a formal plea of not
guilty had been interposed, and where there was no
objection made on account of its absence until, as in this
case, the record was brought to this court for review. It
would be inconsistent with the due administration of justice
to permit a defendant under such circumstances to lie by,
say nothing as to such an objection, and then for the first
time urge it in this court.’”

Id. at 649.

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 The logic of the words of Mr. Justice Peckham is inescapable, and
his words are applicable in toto to this case. Today the modern
trend is that “[a]rraignment may be waived by pleading not guilty
or by silence, at least in all except capital cases, if the accused is
fully informed as to the charge and is not otherwise prejudiced in
the trial of the case by the omission of that formality.” 21 Am. Jur.
2d, Criminal Law § 457 (1965); 22 C.J.S., Criminal Law § 408
(1961).

State v. McCotter, 217 S.E.2d 525, 529 (N.C. 1975). See also State v. Smith, 265 S.E.2d 164,

166 (N.C. 1980) (“Where there is no doubt that a defendant is fully aware of the charge against

him, or is in no way prejudiced by the omission of a formal arraignment, it is not reversible error

for the trial court to fail to conduct a formal arraignment proceeding.”).

McCotter overruled an earlier case, State v. Lueders, 200 S.E. 22 (N.C. 1938), which

held, like Roach and Cassidy, that “[i]n the absence of a plea to the indictment or charge, there

was nothing for the jury to determine.” Id. at 23. Lueders reasoned that “where defendant filed

no plea there was no issue to be submitted to the jury; [and] that consequently the verdict

returned was a nullity, and no judgment could be pronounced upon such a verdict.” McCotter,

217 S.E.2d at 530.

Expressly “nullifying” this language in Lueders, the North Carolina Supreme Court

concluded the defendant had waived his right to arraignment through his silence.

In this case there can be no doubt either that defendant was fully
aware of the charge against him or that he was in nowise
prejudiced by the omission of a formal arraignment -- if indeed it
was omitted. When the case was called for trial defendant’s first
motion was to quash the bill of indictment because “a charge of
conspiracy violated his rights under the Constitutions.” At the
beginning of his charge Judge Exum read the bill of indictment to
the jury and then said, “To this charge the defendant has entered a
plea of not guilty.” Neither defendant nor his counsel arose to
deny that he had entered such a plea. Under all the circumstances
the judge’s recitals are entitled to full faith and credit.

From beginning to end, defendant’s trial was a completely
adversary proceeding. While the record is silent as to defendant’s
arraignment, it shows that he was tried as if he had been arraigned

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 and had entered a plea of not guilty. In such case the absence of
formal arraignment does not constitute reversible error, and the
statements in State v. Lueders . . . are nullified.

Id.

Neither Code § 19.2-254 nor Code § 19.2-259 expressly provides that formal arraignment

and entry of a plea are jurisdictional requirements. To the contrary, Code § 19.2-254 expressly

provides that a defendant may waive arraignment. The record is clear that Simmons was fully

aware of the attempted murder charge against him and was tried as if he had been arraigned and

entered a plea of not guilty. Simmons points to no evidence indicating he was prejudiced by the

trial court’s failure to formally arraign him.

The fact that Simmons was on trial for attempted murder was repeatedly communicated

to him through the course of the trial. Although Simmons was not arraigned on the attempted

murder charge, he was arraigned on a charge of using a firearm in a threatening manner “while

committing or attempting to commit the crime of the murder of Jamar Blackwell.” Immediately

after arraignment, the trial court inquired whether Simmons could read English and whether he

had “had an opportunity to take a look at these indictments.” Simmons responded affirmatively.

He also expressed his understanding of the indictments and acknowledged he had discussed the

charges with his attorney. In fact, when the jury entered the courtroom, the trial court informed

them that Simmons had been charged with Blackwell’s attempted murder and that he had pled

not guilty. Neither Simmons nor his counsel “arose to deny that he had entered such a plea.”

McCotter, 217 S.E.2d at 530.

Simmons’s counsel prepared his defense as if Simmons had been charged with and pled

not guilty to Blackwell’s attempted murder. He objected to the introduction of Blackwell’s

jersey, referring to Blackwell as the “surviving eyewitness, victim.” Simmons and his counsel

listened without objection to the Commonwealth’s opening statement, remarks which

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specifically asserted Simmons fired a shot at Blackwell. In fact, Simmons’s counsel later moved

to strike the attempted murder charge. He also moved for a mistrial based upon the introduction

of Blackwell’s jersey into evidence.

After denying Simmons’s motions, the trial court instructed the jury that Simmons was

charged with Blackwell’s attempted murder. A verdict form which included the attempted

murder charge was provided to the jury, and both parties addressed the attempted murder charge

in closing argument. The jury convicted Simmons of attempted murder and recommended a

nine-year sentence. The final order specifically referenced the jury’s findings and

recommendations regarding each charge, including the attempted murder charge. Despite

references to the attempted murder charge during motions, the presentation of evidence, the jury

instructions, the verdict forms, and closing argument, appellant never objected to the trial court’s

failure to arraign him at any phase of the trial.

As in McCotter, Simmons was fully aware of the attempted murder charge and was in no

way prejudiced by the omission of a formal arraignment. “From beginning to end, [the] trial was

a completely adversary proceeding.” Id. Virginia law recognizes that the rights guaranteed by

Code § 19.2-259, the successor to the statute referenced in Roach, are subject to waiver. The

trial court’s failure to arraign Simmons on the attempted murder charge could only have rendered

the resulting judgment voidable if it had been subject to a proper and timely objection.

Simmons’s continued silence in the face of repeated references to the attempted murder charge

was tantamount to a waiver of his right to be arraigned and to enter a not guilty plea. Having

failed to raise any objection, Simmons waived any such defect and the judgment of the circuit

court is therefore unaffected.

The trial court’s judgment is affirmed.

Affirmed.

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