                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, O’Brien and AtLee
UNPUBLISHED


              Argued at Lexington, Virginia


              JOSHUA MARCEL DAVIS
                                                                              MEMORANDUM OPINION* BY
              v.     Record No. 0215-15-3                                     JUDGE MARY GRACE O’BRIEN
                                                                                     MAY 3, 2016
              COMMONWEALTH OF VIRGINIA


                                 FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                                              James J. Reynolds, Judge

                               M. Lee Smallwood, II (Office of the Public Defender, on brief), for
                               appellant.

                               Kathleen B. Martin, Senior Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     Joshua Marcel Davis (“appellant”) was charged with forgery of a public record in

              violation of Code § 18.2-168. The court denied his pre-trial motion to suppress and appellant

              entered a conditional guilty plea, thereby preserving the suppression issue for appeal.

                     Appellant asserts the following assignment of error:

                               The trial court erred in conducting a trial of Mr. Davis when it
                               lacked the jurisdiction to do so because no order recording the
                               presentation of the indictment in open court had been entered.
                               This assignment of error was not preserved by any argument or
                               objection, but no preservation is necessary because this is a
                               challenge to jurisdiction. In the alternative, Mr. Davis contends
                               that the lack of jurisdiction is sufficient to successfully invoke the
                               ends of justice provision of Rule 5A:18 of the Rules of the
                               Supreme Court of Virginia.

              Finding no error, we affirm the decision of the trial court.




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

       In the early morning hours of April 7, 2014, Officer J.A. Pulley stopped a vehicle driven

by appellant because the officer noticed a defective light on the rear license plate. Appellant

identified himself as “Steve Davis,” his brother’s name, and gave his brother’s date of birth.

Information from the Department of Motor Vehicles indicated that Steve Davis’s license was

suspended. Officer Pulley issued a summons to appellant for driving with a suspended license,

and appellant signed the summons with the name “Steve Davis.”

       Appellant’s brother, Steve Davis, subsequently contacted Officer Pulley and advised him

that he was in Florida on April 7, and was not the person stopped by the officer. Following an

investigation, appellant was charged with forging a public record in violation of Code

§ 18.2-168. The grand jury returned an indictment against appellant on October 27, 2014.

       At a suppression hearing on November 19, 2014, appellant argued that the police officer

had no reasonable suspicion to stop his vehicle on April 7, 2014. The trial court denied the

suppression motion, and appellant entered a conditional guilty plea under Code § 19.2-254. The

court accepted the plea, found appellant guilty, and continued the case for sentencing until

January 5, 2015. On that date, the court sentenced appellant to serve five years of incarceration

in the state penitentiary with two years and six months of that sentence suspended.

       On January 13, 2015, the court entered an order memorializing the indictments the grand

jury returned on October 27, 2014. The order reflected that the grand jury met on October 27,

2014 “and, having been charged by the [c]ourt withdrew to their room and after some time

returned into open [c]ourt and made the following presentments,” including a true bill on a

felony indictment against appellant for the charge of forgery of a public record.

       Appellant filed a motion for reconsideration of his sentence on March 3, 2015. The

motion was denied. Appellant never raised the issue of the timeliness of the order reflecting the

                                               -2-
grand jury’s action at any of his pre-trial or post-trial motions; he asserts it for the first time on

appeal.

                                            II. ANALYSIS

                                        A. Standard of Review

          Appellant argues that his indictment for forgery was invalid because it was not properly

recorded prior to trial. “The validity of the indictment is a question of law which we review de

novo.” Howard v. Commonwealth, 63 Va. App. 580, 583, 760 S.E.2d 828, 829 (2014). See also

Reed v. Commonwealth, 281 Va. 471, 477, 706 S.E.2d 854, 857 (2011).

                                         B. Code § 19.2-254

          “When an accused enters a voluntary and intelligent plea of guilty to an offense, he

waives all defenses except those jurisdictional.” Savino v. Commonwealth, 239 Va. 534, 538,

391 S.E.2d 276, 278 (1990). Because appellant entered a conditional guilty plea, his basis for

appeal is limited to “a review of the adverse determination of any specified pretrial motion.”

Code § 19.2-254. See also Johnson v. Commonwealth, 38 Va. App. 137, 143, 562 S.E.2d 341,

344 (2002).

          Appellant’s only contention during the pre-trial motion to suppress was that the police

officer impermissibly stopped him. Code § 19.2-254 limits an appeal from a conditional guilty

plea to only those issues arising out of the trial court’s denial of a motion to suppress. Because

appellant concedes that he never raised the issue of the delayed entry of the order at his pre-trial

suppression hearing, Code § 19.2-254 precludes review of the issue on appeal unless the issue is

jurisdictional.

                                            C. Rule 5A:18

          Appellant is also limited by Rule 5A:18, which provides that “[n]o ruling of the trial

court . . . will be considered as a basis for reversal unless an objection was stated with reasonable

                                                  -3-
certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals

to attain the ends of justice.” “The same argument must have been raised, with specificity, at

trial before it can be considered on appeal.” Correll v. Commonwealth, 42 Va. App. 311, 324,

591 S.E.2d 712, 719 (2004). Additionally, the objection must be timely, or “at a point in the

proceeding when the trial court is in a position, not only to consider the asserted error, but also to

rectify the effect of the asserted error.” Johnson v. Raviotta, 264 Va. 27, 33, 563 S.E.2d 727,

731 (2002).

       Appellant contends that he is not bound by the strictures of Rule 5A:18 because the trial

court never had jurisdiction to hear his case due to the purported defect in the indictment process.

Subject matter jurisdiction “cannot be waived and any judgment rendered without it is void ab

initio.” Moore v. Commonwealth, 259 Va. 431, 437, 527 S.E.2d 406, 409 (2000). Lack of

subject matter jurisdiction may be raised at any time. Humphreys v. Commonwealth, 186 Va.

765, 772-73, 43 S.E.2d 890, 894 (1947).

       Code § 19.2-217 provides that “no person shall be put upon trial for any felony, unless an

indictment or presentment shall have first been found or made by a grand jury in a court of

competent jurisdiction.” Rule 3A:5(c) of the Supreme Court of Virginia states: “[t]he

indictment shall be endorsed ‘A True Bill’ or ‘Not a True Bill’ and signed by the foreman. The

indictment shall be returned by the grand jury in open court.” Appellant does not contest that the

grand jury returned an indictment against him on October 27, 2014, and he does not assign error

to the substance of the indictment, but he asserts that the delayed entry of the order on January

13, reflecting the grand jury’s action, invalidated his conviction.

       The requirement for a felony prosecution to be initiated pursuant to an indictment is

statutory, not constitutional. Code § 17.1-513 provides that “[t]he circuit courts shall . . . have

original jurisdiction of all indictments for felonies.” However, “there is no constitutional

                                                 -4-
requirement that prosecutions for felony be by indictment. The requirement is merely statutory

. . . [and] may be waived.” Livingston v. Commonwealth, 184 Va. 830, 836, 36 S.E.2d 561, 564

(1946) (citation omitted).

        In Hanson v. Smyth, 183 Va. 384, 387-89, 32 S.E.2d 142, 143-44 (1944), the defendant

challenged his conviction in a habeas corpus proceeding, and alleged that the record did not

show that the indictment was returned in court after the grand jury met. The Supreme Court of

Virginia found that because an indictment may be waived, it is not jurisdictional. Id. at 390-91,

32 S.E.2d at 144. The Court held that because “the statutory requirement for an indictment . . . is

not jurisdictional, the failure of the record to show affirmatively that the indictment was returned

into court by the grand jury is not such a defect as will render null and void the judgment of

conviction based thereon.” Id. Accordingly, we find that the trial court did not lack subject

matter jurisdiction. Because the trial court properly had jurisdiction, and appellant failed to raise

this argument below, appellant’s argument on appeal is barred by Rule 5A:18.

                                    D. Ends of Justice Exception

        In the alternative, appellant argues that the ends of justice exception to the requirements

of Rule 5A:18 mandates reversal of his conviction. To invoke the exception, appellant must

establish “(1) that the trial court erred, and (2) that a grave or manifest injustice will occur or the

appellant will be denied essential rights.” Brittle v. Commonwealth, 54 Va. App. 505, 513, 680

S.E.2d 335, 339 (2009). It is not enough for an appellant to show that a miscarriage of justice

“might have occurred.” See Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269,

272 (1997). Instead, appellant “must affirmatively show that a miscarriage of justice has

occurred.” Id. “The burden of establishing a manifest injustice is a heavy one, and it rests with

the appellant.” Brittle, 54 Va. App. at 514, 680 S.E.2d at 340.




                                                 -5-
       Appellant’s sole contention in support of the “ends of justice” exception is his claim that

the trial court lacked jurisdiction to accept his guilty plea. We reject that claim and find that

appellant was not deprived of any constitutional rights. He waived the reading of the indictment

prior to his conditional guilty plea, and he acknowledged during the court’s colloquy that he was

the individual named in the indictment. Any defect in the timing of the order memorializing the

grand jury’s return of the indictment was merely procedural and did not violate appellant’s

constitutional rights or deprive the court of jurisdiction. Accordingly, we deny appellant’s

request to consider his assignment of error under the “ends of justice” exception to Rule 5A:18,

and we affirm the ruling of the trial court.

                                        III. CONCLUSION

       For the foregoing reasons, the decision of the trial court is affirmed.

                                                                                           Affirmed.




                                                 -6-
