COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Annunziata
Argued at Richmond, Virginia
JOSEPH D. MORRISSEY
MEMORANDUM OPINION * BY
v. Record No. 2533-97-2 JUDGE ROSEMARIE ANNUNZIATA
APRIL 20, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
David B. Hargett (Gary R. Hershner;
Morrissey, Hershner & Jacobs, on brief), for
appellant.
John H. McLees, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.
Joseph D. Morrissey (“appellant”) was convicted of contempt
based on remarks he made before the circuit court in violation
of Code § 18.2-456(3) and (4). The court summarily sentenced
appellant to thirty days in jail. Appellant appeals,
contending: 1) the record does not support his conviction; 2)
the trial court erred, on various constitutional grounds, by
increasing his sentence to thirty days in jail after initially
sentencing him to ten days; and 3) the trial court erred, on two
grounds, by sentencing him to more than ten days in jail.
Because appellant failed to preserve his claims under Rule
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
5A:18, and because we find no reason to invoke the ends of
justice exception to the Rule’s applicability, we conclude that
our review of these issues raised for the first time on appeal
is procedurally barred. Thus, we affirm appellant’s conviction.
On October 20, 1997, appellant appeared before the Circuit
Court of Chesterfield County for the purpose of representing a
client during a sentencing hearing. After appellant and the
Commonwealth’s Attorney finished argument, the court pronounced
a sentence of twenty-five years in prison with ten of those
years suspended. The following exchange between appellant and
the court then ensued:
[APPELLANT]: Your Honor, I don’t -- did I
hear the Court give him a net sentence of 15
years?
THE COURT: I suspended ten of the 25-year
sentence.
[APPELLANT]: That’s outrageous, that is
absolutely outrageous.
THE COURT: Mr. Morrissey, the Court cites
you for contempt and sentences you to ten
days in jail. Mr. Sheriff?
[APPELLANT]: I have never seen a more
jaded, more bitter, more angry jurist in my
life. He has never been sentenced before.
THE COURT: Let him talk, let him talk.
[APPELLANT]: He’s never come into this
courtroom before. He’s got a family. He’s
got a child. He’s got a three-year-old.
THE SHERIFF: Step over to the lockup.
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THE COURT: Go ahead, Mr. Morrissey.
[APPELLANT]: He’s got a three-year-old
child. He’s never done anything before. He
comes into Court, he’s -- he had never been
involved in any criminal activity. The
Commonwealth Attorney said at worst he
should be sentenced like the codefendant and
you gave him five additional years more than
the codefendant gave. It is apparent to me
that when my clients come into court because
of whatever bitterness or anger this Court
has towards me that it’s directing that
sentence towards my client.
THE COURT: I don’t have any bitterness
toward you, Mr. Morrissey. You didn’t try
this case, you came in on the sentencing
phase of it and that’s why you don’t
understand it.
[APPELLANT]: Judge, I’m as familiar with
these facts as -- I got in touch -- my
office got in touch with three detectives
involved in the case.
THE COURT: You can explain all that to me,
but I’ll change it from ten to 30 days in
jail for the additional comments that you’ve
just made.
[APPELLANT]: You asked -- Judge, I’m going
to appeal it to the Virginia Court of
Appeals.
THE COURT: I hope you will.
On October 24, 1997, the court entered an order finding
appellant in contempt. The court’s order cited a violation of
Code §§ 18.2-456(3) and (4).
On November 6, 1997, appellant moved the court to set aside
its finding of contempt, arguing that it “may only impose a
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maximum term of imprisonment of ten days” because his “acts
f[e]ll, if at all, within the first class of Section 18.2-456.” 1
Appellant also averred that he “did not in any way mean for his
comments to be construed as contumacious to” the circuit court.
We find that appellant failed to properly preserve the
arguments he raises on appeal. After the court found appellant
in contempt and imposed punishment summarily, appellant was
permitted to continue addressing the court. During the colloquy
that followed, appellant raised none of the arguments asserted
on appeal. Further, appellant failed to raise his arguments
when he subsequently moved the court to set aside its finding of
contempt. In that motion, appellant’s sole argument was that
his “acts f[e]ll . . . within the first class” of Code
§ 18.2-456 and, on that ground, the court erred in sentencing
him to more than ten days in jail. Although appellant also
challenges the length of his sentence on appeal, appellant bases
these claims on alternative grounds not raised before the trial
court. 2 Thus, appellant’s claims, raised for the first time on
1
A court may not summarily sentence someone to more than ten
days in jail for conduct proscribed by Code § 18.2-456(1). See
Code §§ 18.2-456(1), 18.2-457.
2
On appeal, appellant argues the trial court erred in
sentencing him to more than ten days based on: 1) the court's
failure to contemporaneously cite the precise subsection of Code
§ 18.2-456 upon which he was summarily convicted of contempt; and
2) an alleged ambiguity in the court's order, which should be
resolved in his favor and prevent the court from entering a
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appeal, are barred. See Rule 5A:18; see also Buck v.
Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d 414, 416 (1994)
(“[The defendant’s] failure to raise [his] arguments before the
trial court precludes him from raising them for the first time
on appeal.”).
At oral argument, appellant’s counsel urged this Court to
invoke the “ends of justice” exception to Rule 5A:18, which
would permit consideration of the issues raised on appeal in
order to attain the ends of justice. Marshall v. Commonwealth,
26 Va. App. 627, 636, 496 S.E.2d 120, 125 (1998). “‘The ends of
justice exception is narrow and is to be used sparingly’” when
an error at trial is “‘clear, substantial and material.’”
Redman v. Commonwealth, 25 Va. App. 215, 220-21, 487 S.E.2d 269,
272 (1997) (quoting Brown v. Commonwealth, 8 Va. App. 126, 131,
380 S.E.2d 8, 10 (1989)). “To invoke the ends of justice
exception to Rule 5A:18, the record must ‘affirmatively show[]
that a miscarriage of justice has occurred, not . . . merely
. . . that a miscarriage might have occurred.’” Id. (quoting
Mounce v. Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744
(1987)).
sentence of more than ten days. Appellant's claim below was
limited to his contention that the evidence only supported a
conviction of contempt under Code § 18.2-456(1).
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Finding no justification to invoke the ends of justice
exception in this case, we decline to waive the general bar of
Rule 5A:18 and address appellant’s arguments for the first time
on appeal. Accordingly, we affirm appellant’s conviction.
Affirmed.
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