                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Decker, Russell and AtLee
UNPUBLISHED


              Argued at Richmond, Virginia


              COMMONWEALTH OF VIRGINIA
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0559-15-2                                    JUDGE WESLEY G. RUSSELL
                                                                                SEPTEMBER 22, 2015
              JOSEPH DEE MORRISSEY, A/K/A
               JOSEPH D. MORRISSEY


                                    FROM THE CIRCUIT COURT OF HENRICO COUNTY
                                           Alfred D. Swersky, Judge Designate

                               Robert H. Anderson, III, Senior Assistant Attorney General (Mark R.
                               Herring, Attorney General, on briefs), for appellant.

                               Anthony F. Troy (Joseph D. Morrissey; Eckert Seamans Cherin &
                               Mellott, LLC; Morrissey & Goldman, LLC, on brief), for appellee.


                     Pursuant to Code § 19.2-398, the Commonwealth seeks to appeal the circuit court’s order

              of April 9, 2015, dismissing four indictments against appellee. The Commonwealth claims that

              the trial court erred in finding that the indictments breached the immunity provision of a plea

              agreement previously entered into by the Commonwealth and appellee. The Commonwealth

              also argues that the trial court erred in finding that the indictments violated appellant’s double

              jeopardy rights. For the reasons that follow, we conclude that we lack jurisdiction to review the

              circuit court’s dismissal of the indictments based on its interpretation of the immunity provision

              of the plea agreement. Because that conclusion forecloses our ability to grant the

              Commonwealth the relief it seeks, we grant appellee’s motion to dismiss the Commonwealth’s

              appeal and dismiss the case.


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                         BACKGROUND

       On June 20, 2014, a Henrico County grand jury returned indictments against Joseph D.

Morrissey (“appellee”) charging him with four felonies and one misdemeanor arising out of a

sexual relationship he had had with a seventeen-year-old female. On December 12, 2014,

appellee entered an Alford plea1 in Henrico County Circuit Court to one misdemeanor charge of

contributing to the delinquency of a minor.2 The twenty-one-page written plea agreement

contained a summary of the evidence that both the Commonwealth and appellee would have

introduced had the case gone to trial. With the concurrence of the circuit court and the

Commonwealth, appellee also presented testimony from two witnesses and introduced as an

exhibit a purported copy of a child support order from the Chesterfield County Juvenile and

Domestic Relations District Court.

       At the conclusion of the hearing, the court accepted appellee’s plea and the terms of the

agreement. The court noted that the plea was entered knowingly and voluntarily and found

appellee guilty. The court sentenced appellee in accordance with the agreement, explaining also

that the Commonwealth “agrees to withhold any other potential criminal charges against

[appellee].” Specifically, the written agreement contained the following language, which the

parties referred to in the trial court as an “immunity” provision:

               The Commonwealth’s Attorney/Special Prosecutor further agrees
               to withhold any other potential criminal charges against the
               Defendant, such as conspiracy to suborn perjury, conspiracy to
               obstruct justice, etc.


       1
          North Carolina v. Alford, 400 U.S. 25, 37-38 (1970) (acknowledging that a trial court
can accept a guilty plea even if the defendant will agree only that the evidence is sufficient to
convict him, but he will not admit his guilt). For practical purposes and on appeal, such a plea is
treated the same as a guilty plea. Carroll v. Commonwealth, 54 Va. App. 730, 747, 682 S.E.2d
92, 100 (2009) (quoting State ex rel. Warren v. Schwarz, 579 N.W.2d 698, 706 (Wis. 1998)).
       2
         The Commonwealth agreed to request that the circuit court nolle prosequi the remaining
charges against appellee in exchange for his plea.
                                               -2-
       After the appellee was sentenced, the Commonwealth became aware that there might be

issues with the evidence appellee had introduced at the plea hearing. Henrico County detectives

conducted an investigation and discovered that the purported support order had never been

entered by the Chesterfield County Juvenile and Domestic Relations District Court and believed

that the document was actually a forgery. As a result of the investigation, a Henrico County

grand jury returned four indictments against appellee charging: 1) perjury in violation of Code

§ 18.2-434; 2) uttering a public record in violation of Code § 18.2-168; 3) conspiracy to utter a

forged public document in violation of Code §§ 18.2-22 and 18.2-168; and 4) inducing false

testimony in violation of Code § 18.2-436.

       Appellee filed a motion to dismiss the indictments, arguing that he could not be

prosecuted for the offenses because, pursuant to the immunity provision in the plea agreement,

the Commonwealth had agreed to “withhold” any charges of past criminal conduct, including

past attempts to commit or suborn perjury. Appellee argues that the plea agreement was not

effective until it was accepted by the circuit court at the conclusion of the hearing. Thus,

according to appellee, any crimes committed before or during the hearing on the plea agreement

necessarily occurred prior to the plea agreement becoming effective, and therefore, are past

crimes that fall within the immunity provision.

       Ultimately, the circuit court dismissed the indictments for two reasons.3 First, the circuit

court dismissed the indictments based on the terms of the immunity provision of the plea

agreement, ruling that the offenses charged in the indictments “were past crimes and were

covered by the . . . Plea Agreement provision.” The circuit court added that it also was


       3
        In its opening brief, the Commonwealth concedes that the circuit court dismissed the
indictments for two reasons, noting that the judge “expressly based his order dismissing the
indictments on both double jeopardy and contract grounds.” (Emphasis added). At the oral
argument, the Commonwealth further acknowledged that the circuit dismissed the indictments
based on “two separate grounds.”
                                                -3-
dismissing the indictments because the “double jeopardy rights of Mr. Morrissey are implicated.”

The circuit court stated that it was making the double jeopardy ruling “because I honestly believe

that this matter should, if it can be, heard, should be heard by the Court of Appeals . . . .”

       The Commonwealth filed a notice of appeal to this Court. Appellee responded with a

motion to dismiss for lack of jurisdiction, arguing that this Court lacks jurisdiction to review a

circuit court’s dismissal of indictments based on the interpretation of a plea agreement. This

Court awarded the Commonwealth an appeal without ruling on the motion to dismiss, allowing

the parties a full opportunity to brief and argue both the jurisdictional issue and the merits.4

                                             ANALYSIS

                                             Jurisdiction

       “[T]he question of jurisdiction is one for the determination of the appellate court only.

Before the merits of this case can be considered, [this Court] must determine whether it has

jurisdiction.” Comcast of Chesterfield County, Inc. v. Bd. of Supervisors, 277 Va. 293, 299, 672

S.E.2d 870, 872 (2009) (internal quotation marks and citations omitted). See also Kotara v.

Kotara, 55 Va. App. 705, 707, 688 S.E.2d 908, 909 (2010); Woody v. Commonwealth, 53



       4
          The Commonwealth suggests that the fact that this Court granted the petition for appeal
in the face of appellee’s motion to dismiss is a tacit rejection of appellee’s jurisdictional
argument. This view is mistaken. Prior to today, we have not ruled on the substance of the
motion to dismiss. We often allow full briefing and argument on questions of jurisdiction. As
we have noted in a different context,

               when questions of jurisdiction arise, a court has a duty to permit
               argument and to take the time required for such consideration as it
               might need. In these situations, a court’s authority to hear and
               adjudicate the question of jurisdiction arises from the necessity of
               the case. Thus, the resolution of these questions [often] does not
               come until the parties have briefed and argued the issue before us
               ....

Kotara v. Kotara, 55 Va. App. 705, 709-10, 688 S.E.2d 908, 910 (2010) (internal quotation
marks and citations omitted).
                                             -4-
Va. App. 188, 193, 670 S.E.2d 39, 42 (2008). Determining whether a Virginia court has

jurisdiction over a case implicates both the Virginia Constitution and the statutes governing the

operation of the judicial system. As the Supreme Court of Virginia has observed,

               [t]he general powers of the judiciary in Virginia are conferred by
               Article VI, Section 1 of the Constitution of Virginia. This section
               by itself confers jurisdiction upon the Supreme Court of Virginia in
               certain matters and further states: “Subject to the foregoing
               limitations, the General Assembly shall have the power to
               determine the original and appellate jurisdiction of the courts of the
               Commonwealth.” The concept of jurisdiction defines power.
               With regard to the Court of Appeals of Virginia . . . , the powers
               . . . are . . . prescribed by statute.

Kelley v. Stamos, 285 Va. 68, 75, 737 S.E.2d 218, 221 (2013).

       Article VI, Section 1 of the Virginia Constitution provides, in pertinent part, that “[t]he

General Assembly may allow the Commonwealth the right to appeal in all cases, including those

involving the life or liberty of a person, provided such appeal would not otherwise violate this

Constitution or the Constitution of the United States.” Accordingly, we turn to the relevant

statutory provisions to determine whether we have jurisdiction in this matter.

       The grant of jurisdiction for the Court of Appeals to hear appeals in criminal cases is

found in Code § 17.1-406. Regarding appeals by the Commonwealth, Code § 17.1-406 provides

that “[t]he Commonwealth may also petition the Court of Appeals for an appeal in a criminal

case pursuant to § 19.2-398.”

       In turn, Code § 19.2-398 grants the Commonwealth the right to appeal to this Court in a

limited number of circumstances. Pertinent here is Code § 19.2-398(A)(1), which provides that

the Commonwealth may appeal

               [a]n order of a circuit court dismissing a warrant, information or
               indictment, or any count or charge thereof on the ground that
               (i) the defendant was deprived of a speedy trial in violation of the
               provisions of the Sixth Amendment to the Constitution of the
               United States, Article I, Section 8 of the Constitution of Virginia,
               or § 19.2-243; or (ii) the defendant would be twice placed in
                                               -5-
                jeopardy in violation of the provisions of the Fifth Amendment to
                the Constitution of the United States or Article I, Section 8 of the
                Constitution of Virginia . . . .

       Whether Code § 19.2-398(A)(1) enables us to reach the merits of the Commonwealth’s

appeal presents a question of statutory construction. When considering such questions, “our

primary objective is ‘to ascertain and give effect to legislative intent,’ as expressed by the

language used in the statute.” Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420,

425, 722 S.E.2d 626, 629 (2012) (quoting Commonwealth v. Amerson, 281 Va. 414, 418, 706

S.E.2d 879, 882 (2011)) (further citation and internal quotation marks omitted). In doing so, we

“give statutory language its plain meaning.” Davenport v. Little-Bowser, 269 Va. 546, 555, 611

S.E.2d 366, 371 (2005) (citing Jackson v. Fid. & Deposit Co., 269 Va. 303, 313, 608 S.E.2d 901,

904 (2005)). Because the Commonwealth’s statutory right to appeal is in derogation of the

general prohibition against appeals by the Commonwealth, the statutory requirements “must be

strictly construed against the state and limited in application to cases falling clearly within the

language of the statute.” Commonwealth v. Hawkins, 10 Va. App. 41, 44, 390 S.E.2d 3, 5

(1990) (citations omitted).

               The Commonwealth’s Requested Relief and the Circuit Court’s Ruling

       In its appeal, the Commonwealth requests that we vacate the circuit court’s order

dismissing the indictments “and that the case be remanded for trial on those charges.” To afford

the Commonwealth this relief, we must find that the circuit court erred in dismissing the

indictments.

       The circuit court based its dismissal of the indictments on two distinct grounds—the

immunity provision of the plea agreement and appellee’s double jeopardy rights. Assuming the

circuit court’s analysis is correct, either ground, independent of the other, would be sufficient to




                                                 -6-
support the dismissal of the indictments.5 Accordingly, to afford the Commonwealth the relief it

seeks, we must have jurisdiction to consider both grounds and find that the circuit court erred

regarding each.

                            Immunity Provision of the Plea Agreement

       Code § 19.2-398(A)(1) specifies two instances in which the Commonwealth may appeal

a circuit court’s order dismissing indictments: when the dismissal is predicated upon a finding

that a defendant’s speedy trial rights have been violated and when the dismissal is predicated

upon a finding that the defendant’s double jeopardy rights have been violated. Notably absent

from the types of cases that the Commonwealth may appeal is an order of a circuit court

interpreting a plea or immunity agreement.

       By its plain language, Code § 19.2-398(A)(1) simply does not permit us to review a

circuit court’s dismissal of indictments based on the interpretation of a plea or immunity

agreement. The grant of jurisdiction is limited to the issues specified in the statute and no others.

Hawkins, 10 Va. App. at 44, 390 S.E.2d at 5 (The Commonwealth’s right to appeal is “limited in

application to cases falling clearly within the language of the statute.” (internal quotation marks

and citations omitted)); Commonwealth v. Brown, 8 Va. App. 41, 43, 378 S.E.2d 623, 624

(1989) (“The constitutional and statutory authority for Commonwealth appeals is narrowly

circumscribed. It was not enacted to allow Commonwealth appeals from all allegedly erroneous


       5
          Despite repeated references to the circuit court deciding the case on two distinct
grounds, see supra 3 note, the Commonwealth asserts that the two grounds are sufficiently
intertwined so as to render them one indivisible issue on appeal. The Commonwealth advances
this position by arguing that the double jeopardy issue cannot be resolved without first
determining what is covered by the immunity provision of the plea agreement. Even assuming
this to be so, the reverse is clearly not true. Interpreting the meaning of the immunity provision
can be accomplished through consideration only of the “four-corners” of the agreement and other
contract principles. Because the interpretation of the immunity provision was not dependent on
double jeopardy principles, the two grounds for the circuit court’s dismissal of the indictments
pose distinct appellate questions.

                                                -7-
pre-trial rulings by the trial court. Even if the trial court’s ruling was erroneous . . . [that does]

not provide a basis for the exercise of this Court’s appellate jurisdiction.”); Commonwealth v.

Ragland, 7 Va. App. 452, 453, 374 S.E.2d 183, 183 (1988) (holding that appeals by the

Commonwealth are limited to the issues delineated in the statute). Accordingly, we conclude

that we are without jurisdiction to review the circuit court’s conclusion that the attempted

prosecution violated the immunity provision of the plea agreement.6

        That the circuit court’s determination regarding the immunity provision of the plea

agreement may have double jeopardy implications does not alter the analysis. In Commonwealth

v. Rodgers, 21 Va. App. 745, 748, 467 S.E.2d 813, 815 (1996), we were asked to review a circuit

court’s suppression of certain evidence based upon the doctrine of collateral estoppel. Despite

acknowledging that the circuit court’s ruling had double jeopardy implications, we found that the

circuit court’s ruling on collateral estoppel was not reviewable because the statute did not

expressly authorize review of evidence suppressed as a result of collateral estoppel. Id.

Similarly, even if the circuit court’s ruling has double jeopardy implications, our consideration of

the circuit court’s interpretation of the immunity provision is barred because the contractual basis

for the circuit court’s decision is not a dismissal based on double jeopardy.

        That the circuit court stated its desire that “this matter . . . be heard by the Court of

Appeals” is immaterial. As noted above, our jurisdiction to hear appeals by the Commonwealth

in criminal cases is set by statute. That jurisdiction can be expanded only by statute; it cannot be

expanded by the parties, by a lower court, by this Court, or even by the Supreme Court of


        6
          Although supported by the plain language of the statute and our prior cases regarding
appeals by the Commonwealth, our conclusion finds further support in the ancient canon of
construction expressio unius est exclusio alterius, which “‘provides that mention of a specific
item in a statute implies that omitted items were not intended to be included within the scope of
the statute.’” GEICO v. Hall, 260 Va. 349, 355, 533 S.E.2d 615, 617 (2000) (quoting Turner v.
Wexler, 244 Va. 124, 127, 418 S.E.2d 886, 887 (1992)).

                                                  -8-
Virginia. Although the circuit court wished for this Court to review its conclusions regarding the

effect of the immunity provision of the plea agreement, we simply lack the authority to do so.7

                                          Double Jeopardy

       Turning to the circuit court’s alternative holding, that constitutional protections against

double jeopardy required dismissal of the indictments, it is clear that we have jurisdiction to

review the ruling. As noted above, Code § 19.2-398(A)(1)(ii) provides that the Commonwealth

may seek appellate review in such cases, and appellee concedes that we have such jurisdiction,

noting that the statute “vests this Court with jurisdiction over the Trial Court’s holding that the

indictments violated Appellee’s double jeopardy rights . . . .”

       The existence of jurisdiction, however, does not mean that such jurisdiction should be

exercised. As we have noted previously, “if a case can be decided on either of two grounds, one

involving a constitutional question, the other a question of statutory construction or general law,

the Court will decide only the latter.” Bailey v. Commonwealth, 62 Va. App. 499, 505 n.1, 749

S.E.2d 544, 547 n.1 (2013) (emphasis added) (internal quotation marks and citations omitted).

       Here, our determination that Code § 19.2-398 does not permit us to review the circuit

court’s ruling regarding the immunity provision resolves the case.8 Our inability to consider the

substance of that ruling leaves it in place, meaning that the indictments remain dismissed


       7
          Having concluded that we are without jurisdiction to review the circuit court’s ruling
regarding the effect of the immunity provision of the plea agreement, we offer no opinion on
whether the circuit court’s ruling was correct on the merits. We note, however, that we do have
jurisdiction to consider a circuit court’s interpretation of agreements granting immunity from
prosecution in appeals brought by defendants. We regularly exercise that jurisdiction. However,
when the appeal is brought by the Commonwealth, Code § 17.1-406 limits our jurisdiction to the
grounds specified in Code § 19.2-398.
       8
          Although arguing that the issues were “inextricably intertwined,” the Commonwealth
tacitly conceded this point at oral argument, stating that “[i]t’s equally clear that if the only basis
for the lower court’s dismissal was this essentially contractual notion that the plea agreement
terms . . . prohibited the new indictments and prosecution on them . . . then [the Commonwealth]
would be out of luck.”
                                                -9-
irrespective of what we might conclude regarding the circuit court’s double jeopardy ruling.

Because no ruling on the double jeopardy issue would allow us to grant the Commonwealth the

relief it seeks, we decline, consistent with the doctrine of constitutional avoidance, to reach the

issue.9 Id.

                                          CONCLUSION

       For the reasons stated above, we conclude that we lack jurisdiction to review the circuit

court’s dismissal of the indictments based on its interpretation of the immunity provision of the

plea agreement. Because that conclusion forecloses our ability to grant the Commonwealth the

relief it seeks, we grant appellee’s motion to dismiss the Commonwealth’s appeal and dismiss

the case.

                                                                                          Dismissed.




       9
         Furthermore, because no ruling on the double jeopardy issue would allow us to grant the
Commonwealth the relief it seeks, any such ruling would amount to nothing more than an
advisory opinion that we are not empowered to issue. Charlottesville Area Fitness Club
Operators Ass’n v. Albemarle County Bd. of Supervisors, 285 Va. 87, 100, 737 S.E.2d 1, 7
(2013) (Appellate courts “do not have the power to render a judgment that is only advisory.”
(citing Martin v. Ziherl, 269 Va. 35, 40, 607 S.E.2d 367, 369 (2005))).
                                               - 10 -
