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Patricia LaCava was convicted in the circuit court of two counts of embezzlement. LaCava commenced her appeal pro se. LaCava filed a timely notice of appeal and asked the court reporter to order transcripts of the trial proceedings. LaCava subsequently secured representation by appellate counsel, who discovered that the transcripts had not been filed within the sixty-day period required by Va. R. Crim. App. 5A:8(a). After filing the transcripts by hand, counsel filed a motion to extend the deadline for filing transcripts. The court of appeals denied the motion and thereafter denied LaCava's petition for appeal. The Supreme Court vacated the judgment of the court of appeals, holding (1) the court of appeals abused its discretion in denying LaCava's motion to extend the deadline for filing her transcript, as LaCava showed good cause to extend the period for filing transcripts; and (2) the court of appeals erred in denying LaCava's petition for appeal because the order was predicated solely on the absence of a transcript or statement of facts.Receive FREE Daily Opinion Summaries by Email
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PATRICIA MARIE LACAVA
Record No. 110711
JUSTICE WILLIAM C. MIMS
March 2, 2012
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the Court of Appeals
erred in denying Patricia Marie LaCava’s motion to extend the
time for filing transcripts under Rule 5A:8(a).
BACKGROUND AND MATERIAL PROCEEDINGS BELOW
LaCava was convicted in the Circuit Court of the City of
Alexandria of two counts of embezzlement, in violation of Code
On September 13, 2010, the court entered final
judgment sentencing her to a term of three years’ imprisonment
on each count, to run concurrently, and suspended the sentence
for a period of two years subject to conditions.
Though represented by counsel at trial, LaCava commenced
her appeal pro se.
She filed a timely notice of appeal and
contacted the court reporter to order transcripts of the trial
The court reporter informed her that it was the
policy of the clerk of court to order transcripts directly for
pro se litigants.
However, the court reporter did not realize
that LaCava had been represented by counsel at trial and
therefore the clerk would not order her transcripts directly.
LaCava, relying in good faith on the court reporter’s
information, believed that the clerk had ordered the
transcripts and filed them with the record.
LaCava subsequently secured representation by appellate
counsel, who discovered that the transcripts had not been filed
within the 60-day period required by Rule 5A:8(a).
promptly obtained the transcripts and filed them by hand,
together with the notice of filing transcripts required by Rule
5A:8(b), on November 17, 2010.
Counsel also served the
Commonwealth’s attorney with the transcripts and notice of
filing transcripts by hand the same day.
On December 10, 2010, counsel filed a “Motion to Extend
Deadline for Filing Transcript” (“the Motion”) in the Court of
Appeals under Rule 5A:8(a), which states in pertinent part that
that the 60-day period for filing transcripts “may be extended
by a Judge of the Court of Appeals only upon a written motion
filed within 90 days after the entry of final judgment.
motions will be granted only upon a showing of good cause to
excuse the delay.”
The Motion was filed on the 88th day after
the entry of final judgment on September 13, 2010.
set forth the facts recited above and asserted that they
constituted good cause for extending the 60-day period.
The Motion further noted that the Commonwealth had not
been prejudiced by the delay.
Because Rule 5A:8(a) provides a
period of 60 days after entry of final judgment within which to
file transcripts and Rule 5A:8(b) provides a period of 10 days
after the filing of transcripts within which to file and serve
notice that transcripts had been filed, the Rules provide a
period of up to 70 days from entry of final judgment before the
Commonwealth would have been aware that transcripts had been
However, in this case, the Commonwealth received the
transcripts and the notice of filing transcripts by hand on the
65th day after the entry of final judgment.
Motion noted that the Commonwealth’s attorney “consents to the
granting of [the Motion] and does not intend to file responses
The Commonwealth in fact filed no opposition
to the Motion.
On January 3, 2011, the Court of Appeals entered an order
denying the Motion.
The order stated that
[w]hen a motion to extend is filed after the
expiration of the original underlying deadline
(in this instance, 60 days after entry of final
judgment), but before the specific deadline
governing a motion to extend (in this instance,
90 days after judgment), good cause must be
shown as to why an extension was not sought by
the original due date. In other words, the
“good cause” showing must present some
persuasive reason for waiting until after the
expiration of the underlying deadline to file
the motion for an extension of time.
Upon consideration of [the Motion], and
applying the standard set forth above, [the
Motion] hereby is denied.
LaCava filed a motion for reconsideration, which the Court of
Thereafter, the Court of Appeals entered a per
curiam order denying LaCava’s petition for appeal.
curiam order stated that
[w]ithout a transcript or statement of facts, it
is not possible to determine whether the issues
raised by [LaCava] on appeal were preserved in
the trial court. Furthermore, it is not
possible to determine the merits of [her]
allegations without examining the evidence
presented. Therefore, the transcripts or a
statement of facts are indispensible to a
determination of these issues. Accordingly,
this appeal is denied.
We awarded LaCava this appeal.
LaCava argues that the Court of Appeals erred in
interpreting Rule 5A:8(a) to require her to show good cause for
failing to file the Motion within 60 days. *
A lower court’s
The Commonwealth asserts that LaCava’s notice of appeal
is inadequate because it “challenges only ‘the decisions of the
Court of Appeals denying her motion for an extension of time
. . . and denying her motion to reconsider that ruling,”
neither of which is the final judgment of the Court of Appeals.
The Court therefore should not consider LaCava’s appeal, the
Commonwealth argues, because the notice of appeal “does not
challenge the final judgment.”
This argument fails to distinguish between the
requirements for notices of appeal and assignments of error set
forth in our Rules and between their respective purposes. Our
Rules require assignments of error to “address the findings or
rulings in the trial court or other tribunal from which an
appeal is taken,” Rule 5:17(c)(1)(iii), because “[t]he purpose
of assignments of error is to point out the errors . . . on
which [an] appellant intends to ask a reversal of the judgment,
and to limit discussion to these points." Yeatts v. Murray,
interpretation of the Rules of this Court, like its
interpretation of a statute, presents a question of law that we
review de novo.
Brown v. Commonwealth, 279 Va. 210, 217, 688
S.E.2d 185, 189 (2010); Moore v. Commonwealth, 276 Va. 747,
753, 668 S.E.2d 150, 153 (2008); Jay v. Commonwealth, 275 Va.
510, 517, 659 S.E.2d 311, 315 (2008).
While conceding that the
de novo standard of review applies, the Commonwealth
nevertheless argues that the Court of Appeals’ interpretation
of Rule 5A:8(a) is analogous to an administrative agency’s
interpretation of its own rules.
We have said that “decisions by administrative agencies
are given deference when they fall within an area of the
agency’s specialized competence.”
Va. Dep't of Health v. NRV
Real Estate, LLC, 278 Va. 181, 185, 677 S.E.2d 276, 278 (2009).
249 Va. 285, 290, 455 S.E.2d 18 (1995). But unlike Rule
5:17(c)(1)(iii), Rule 5:14(a) does not require an appellant to
challenge the final judgment in a notice of appeal from the
Court of Appeals because the purpose of the notice of appeal is
merely to place the opposing party on notice and to direct the
clerk to prepare the record on appeal. Rule 5:15(a) ("The
clerk of the Court of Appeals shall transmit all such documents
to the clerk of this Court within 10 days after the filing of
the notice of appeal to this Court . . . ."); see also Avery v.
County School Board, 192 Va. 329, 330, 64 S.E.2d 767, 770
(1951) (interpreting substantially similar language of former
Rule 5:1 to mean that until the notice of appeal is filed, "the
clerk is under no duty and has no authority to make up the
record. The purpose . . . is not to penalize the appellant but
to protect the appellee. If the required papers are not filed
[within the time required], the appellee is entitled to assume
that the litigation is ended, and to act on that assumption.
Litigation is a serious and harassing matter, and the right to
know when it is ended is a valuable right.").
However, we give little deference to an agency’s decision that
falls outside its specialized competence, Sims Wholesale Co. v.
Brown-Forman Corp., 251 Va. 398, 404, 468 S.E.2d 905, 908
(1996), and when the issue is one of statutory interpretation
we have said an agency’s decisions “are not entitled to
deference on judicial review.”
Va. Dep’t of Health, 278 Va. at
185, 677 S.E.2d at 278.
We also have said that we will defer to the State
Corporation Commission in the interpretation of its own rules.
See Level 3 Commc’ns. of Va. v. State Corp. Comm’n, 268 Va.
471, 478, 604 S.E.2d 71, 74 (2004).
However, the General
Assembly has expressly authorized the State Corporation
Commission to prescribe its own rules of practice and
Code § 12.1-25.
By contrast, the General Assembly
has empowered this Court to promulgate the rules of practice
and procedure both for circuit courts and for the Court of
Code §§ 17.1-403 and 17.1-503.
Part 5A of the Rules of this Court governs the proceedings of
the Court of Appeals, the provisions of Part 5A remain
precisely that – Rules of this Court.
Accordingly, this Court
reviews the Court of Appeals’ interpretation de novo.
The plain language of Rule 5A:8(a) provides a party 90
days from the entry of final judgment within which to file a
motion to extend the 60-day period within which to file
Nothing in the Rule provides a basis for
distinguishing such a motion filed on the first day after the
entry of final judgment from a motion filed on the ninetieth
The Commonwealth argues that the Rule is ambiguous because
the word “delay” may refer either to the delay in filing the
transcripts in the circuit court after the 60-day period set
forth by the Rule has expired or to the delay in filing a
motion to extend the period if the motion itself was not filed
in the Court of Appeals within 60 days.
This argument is
Nothing in the Rules imposes a 60-day period
for the filing of such a motion.
Consequently, there is no
basis upon which the Court of Appeals may require a party to
show good cause for failing to file such a motion within the
first 60 days of the 90-day period set forth in the Rule.
The Commonwealth contends that the Court of Appeals’
interpretation is supported by the language of Rule 5A:8(a)
prior to its amendment by this Court on April 1, 2010.
Rule 5A:8(a) provided that “[u]pon a written motion filed
within 60 days after entry of the final judgment, a judge of
the Court of Appeals may extend [the period for filing
transcripts] for good cause shown.”
But that language was
superseded by the present rule, which took effect on July 1,
2010, well before the proceedings in this case.
And it is
well-settled that “when an enactment is unambiguous, extrinsic
legislative history may not be used to create an ambiguity, and
then remove it, where none otherwise exists.”
Taylor v. Shaw &
Cannon Co., 236 Va. 15, 19, 372 S.E.2d 128, 131 (1988) (quoting
Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985)).
Therefore, because Rule 5A:8(a) in its present form clearly
provides parties 90 days within which to file a motion to
extend, the 60-day limitation set forth in former Rule 5A:8(a)
Accordingly, the Court of Appeals erred in requiring
LaCava to show good cause why the Motion was not filed within
60 days from the entry of final judgment.
not end the inquiry.
However, this does
Rule 5A:8(a) provides that a judge of the
Court of Appeals “may” extend the period for filing transcripts
“upon a showing of good cause,” which LaCava alleged in her
We thus review the Court of Appeals’ decision to deny
the Motion for abuse of discretion.
See AME Fin. Corp. v.
Kiritsis, 281 Va. 384, 392, 707 S.E.2d 820, 824 (2011).
In Landrum v. Chippenham & Johnston-Willis Hospitals,
Inc., 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011), we stated
[a]n abuse of discretion . . . can occur in
three principal ways: when a relevant factor
that should have been given significant weight
is not considered; when an irrelevant or
improper factor is considered and given
significant weight; and when all proper factors,
and no improper ones, are considered, but the
court, in weighing those factors, commits a
clear error of judgment.
In its January 3, 2011 order, the Court of Appeals
expressly stated that its denial of the Motion was based upon
its conclusion that LaCava was required to show good cause why
the Motion had not been filed within 60 days from the entry of
the final order.
That conclusion was erroneous and the order
supplies no other factor considered by the Court of Appeals to
support its ruling.
Because the Court of Appeals considered
and gave significant weight to an irrelevant and improper
factor, it abused its discretion.
Based on our review of the facts of this case, we conclude
that LaCava has shown good cause to extend the period for
We therefore will vacate the Court of
Appeals’ order denying the Motion.
We also will vacate its
order denying LaCava’s petition for appeal because the order
was predicated solely on the absence of a transcript or
statement of facts.
We will remand this case to the Court of
Appeals with directions to grant the Motion and consider
LaCava’s petition for appeal on its merits with the transcripts
incorporated into the record on appeal.
Vacated and remanded.
JUSTICE McCLANAHAN, concurring in part and dissenting in part.
I agree with the majority's interpretation of Rule 5A:8.
However, I disagree with the majority in determining the issue of
whether "good cause" was shown to "excuse the delay" in appellant
filing her transcripts.
In my judgment, this case
should be remanded to the Court of Appeals, directing it to make
the "good cause" determination pursuant to the new interpretation
of this amended rule announced in today's decision.