COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Beales, Fulton and Lorish
MARSHALL STEPHENS
MEMORANDUM OPINION
v. Record No. 1068-22-4 PER CURIAM
MARCH 21, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Daniel S. Fiore, II, Judge
(Robert L. Jenkins, Jr.; Bynum & Jenkins, on briefs), for appellant.
(Jason S. Miyares, Attorney General; Matthew P. Dullaghan, Senior
Assistant Attorney General, on brief), for appellee.
Marshall Stephens appeals from his convictions for first-degree murder and using a firearm
in the commission of a felony, arguing the evidence was insufficient to sustain the convictions.
Because Stephens failed to timely file a transcript or statement of facts instead of a transcript
necessary to the appeal, we cannot address Stephens’s assignment of error. See Rule 5A:8. After
examining the briefs and record, the panel unanimously holds that oral argument is unnecessary
because “the appeal is wholly without merit.” Code § 17.1-403(ii)(a); Rule 5A:27(a). We affirm
his convictions.
BACKGROUND
A jury convicted Stephens of first-degree murder and using a firearm in the commission
of a felony. The trial court sentenced Stephens to life plus three years’ imprisonment by order
entered on April 20, 2022, and Stephens filed a timely notice of appeal on April 29, 2022. The
This opinion is not designated for publication. See Code § 17.1-413.
notice of appeal stated that Stephens “ha[d] ordered from the court reporter who reported the
case the transcript for filing as required by Rule 5A:8(a).”
On August 30, 2022, Stephens moved this Court to extend the deadline for his opening
brief and appendix because this Court “ha[d] not received the trial transcripts as part of the
record transmitted by the Circuit Court.” Stephens did not move for an extension of the 60-day
deadline for filing the transcripts in the trial court. This Court entered an order awarding
Stephens an extension of time to file an opening brief, but the order did not extend the deadline
to file transcripts.
Later, Stephens petitioned this Court to issue a writ of certiorari to the trial court “for the
purpose of including the trial transcripts in the record.” Stephens asserted that “[u]pon
inspection of the record on appeal,” he discovered that the transcripts “he intended to designate
for inclusion in the Appendix were not included.” Stephens also moved for another extension of
time to file an opening brief. On October 4, 2022, Stephens filed the relevant transcripts in the
trial court.
On October 12, 2022, this Court denied Stephens’s petition for a writ of certiorari. We
stated that “the particular transcripts at issue were not timely filed in the trial court” and Stephens
“[was] actually seeking an extension of time in which to file the said transcripts.” We held that
under Rule 5A:8(a), “[t]his Court has no authority to extend the time to file the transcript if a
motion to do so was not filed within 90 days after entry of final judgment.” Accordingly, we
denied Stephens’s petition. In another order entered the same day, we granted Stephens until
October 28, 2022, to file an opening brief. Stephens filed an opening brief on October 28, 2022.
The Commonwealth responded, arguing that indispensable transcripts had not been filed.
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ANALYSIS
Stephens challenges the sufficiency of the evidence to sustain his convictions. He asserts
that while the evidence “may have established [his] presence in the area of the crime scene and
his lack of candor in his communications with the lead detective,” this is insufficient to prove
that he committed the crimes. We cannot reach the merits of Stephens’s arguments, however,
because he failed to file the transcripts—or a written statement of facts rather than the
transcripts—necessary for our review.
“[A]n appellate court’s review of the case is limited to the record on appeal.” Wilkins v.
Commonwealth, 64 Va. App. 711, 717 (2015) (quoting Turner v. Commonwealth, 2 Va. App. 96,
99 (1986)), aff’d, 292 Va. 2 (2016). “It is appellant’s burden to provide this Court with a record
from which it can decide the issues in the case.” Clarke v. Commonwealth, 60 Va. App. 190,
199 (2012). “In the absence [of a sufficient record], we will not consider the point.” Robinson v.
Robinson, 50 Va. App. 189, 197 (2007) (alteration in original) (quoting Jenkins v. Winchester
Dep’t of Soc. Servs., 12 Va. App. 1178, 1185 (1991)).
“The transcript of any proceeding is a part of the record when it is filed in the office of
the clerk of the trial court no later than 60 days after entry of the final judgment.” Rule 5A:8(a).
“This deadline may be extended by a judge of this Court only upon a written motion filed within
90 days after the entry of final judgment.” Id. (emphasis added). “When 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 will not be
considered.” Rule 5A:8(b)(4)(ii). Indeed, if “the transcript [or statement of facts] is
indispensable to the determination of the case, then the requirements for making the transcript
[or statement of facts] a part of the record on appeal must be strictly adhered to.” Bay v.
Commonwealth, 60 Va. App. 520, 528 (2012) (alterations in original) (quoting Turner, 2
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Va. App. at 99). “This Court has no authority to make exceptions to the filing requirements set
out in the Rules.” Id. (quoting Turner, 2 Va. App. at 99).
Stephens filed the transcripts in the trial court on October 4, 2022, well more than 60
days after entry of the final judgment on April 20, 2022. Stephens did not file a statement of
facts in lieu of the transcripts. And even if we construe his August 30, 2022 motion to extend the
deadline for his opening brief and appendix (citing this Court’s failure to receive the trial
transcripts “as part of the record transmitted by the Circuit Court”) as a motion to extend the time
to file the transcripts, it was not filed within 90 days of the final judgment. See Rule 5A:8(a).
Thus, the transcripts were not timely filed in the trial court and are not part of the appellate
record.1
As Stephens challenges the sufficiency of the evidence supporting his convictions, a
timely-filed transcript of the trial proceedings in which the evidence was introduced, or a written
statement of facts in lieu of a transcript, is indispensable to resolving Stephens’s sole assignment
of error. Therefore, we cannot resolve Stephens’s sole assignment of error because he failed to
ensure that the record contained a timely-filed transcript, or a written statement of facts in lieu of
a transcript. Rule 5A:8(b)(4)(ii). Accordingly, we affirm the trial court’s judgment.
CONCLUSION
For the above reasons, we affirm the trial court’s judgment.
Affirmed.
1
Code § 19.2-321.1 permits a motion for delayed appeal in a criminal case in some cases,
including where a “conviction has been affirmed for failure to file or timely file the
indispensable transcript or written statement of facts as required by law or by the Rules of the
Supreme Court.”
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