                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Beales and Decker
UNPUBLISHED


              Argued by teleconference


              WAYNE EDWARD MEADOWS, JR.
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1026-14-2                                  JUDGE ROBERT J. HUMPHREYS
                                                                                  APRIL 7, 2015
              COMMONWEALTH OF VIRGINIA


                                 FROM THE CIRCUIT COURT OF APPOMATTOX COUNTY
                                              Kimberley S. White, Judge

                               Roger B. Stough (Roger B. Stough, PC, on brief), for appellant.

                               Aaron J. Campbell, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     Wayne Edward Meadows, Jr., (“Meadows”) appeals his three convictions for taking

              indecent liberties with a minor in violation of Code § 18.2-370 in the Circuit Court of

              Appomattox County (the “trial court”). In support of his appeal, Meadows argues: (1) that “the

              trial court erred in not using strict scrutiny to evaluate the constitutionality of Code § 18.2-370

              because Code § 18.2-370 prohibits the exercise of free speech by consenting adults;” and (2) that

              “the trial court erred in not finding that Code § 18.2-370 is unconstitutionally overbroad in

              violation of the First Amendment of the United States Constitution.” For the reasons that follow,

              we hold that Meadows’s arguments are procedurally defaulted pursuant to Rule 5A:18 and we

              therefore decline to consider the merits of his arguments.

                     Meadows orally moved to dismiss the charges against him on the basis that Code

              § 18.2-370 was unconstitutionally overbroad on the morning of his trial. The parties briefly


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
discussed the merits of his argument, and then the trial court ruled that the motion was untimely.

The trial court stated, “[f]irst, the [c]ourt will find that the provisions of 3A:9 of the Rules of the

Supreme Court have not been followed and that the motion has not been made in the manner set

forth in the rule.” The trial court further explained:

                   if the [c]ourt were to consider the substantive nature of the motion
                   notwithstanding the lateness and not withstanding that it’s not in
                   writing, the [c]ourt would find that for the reasoning set forth in
                   [Podracky v. Commonwealth, 52 Va. App. 130, 662 S.E.2d 81
                   (2008),] that the motion should be denied; that the Code
                   [§] 18.2-370 has not been shown to prohibit speech protected
                   under the First Amendment. And for that reason the motion will
                   be denied.

The trial court issued a written order denying Meadows’s motion to dismiss “based upon Rule

3A:9 of the Supreme Court of Virginia.”

        At oral argument, Meadows suggests that even though his motion to dismiss was

untimely, the issue should be considered by this Court because the trial court addressed the

merits of his motion in its ruling from the bench. However, it is well settled that “a court speaks

only through its written orders.” Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96,

103, 639 S.E.2d 174, 177 (2007). Therefore, because the trial court’s written order denied

Meadows’s motion as procedurally untimely “based upon Rule 3A:9,” and remained silent as to

the merits of his argument, it is without consequence that the trial judge opined from the bench

as to how she might rule on the motion if the constitutional challenge had been properly before

the trial court.

        Rule 3A:9(b)(1) describes defenses and objections that a defendant must raise before trial

that will otherwise be considered waived:

                   Defenses and objections based on defects in the institution of the
                   prosecution or in the written charge upon which the accused is to
                   be tried, other than that it fails to show jurisdiction in the court or
                   to charge an offense, must be raised by motion made within the
                   time prescribed by paragraph (c) of this Rule. The motion shall
                                                     -2-
               include all such defenses and objections then available to the
               accused. Failure to present any such defense or objection as herein
               provided shall constitute a waiver thereof.

Rule 3A:9(c) requires that a motion referred to in subparagraph (b)(1) “shall be filed or made

before a plea is entered and, in a circuit court, at least 7 days before the day fixed for trial.” This

Court has clarified that “‘[t]he plain language of the Rule states that the requirements of Rule

3A:9(b)(1) are mandatory, and failure to raise such [motions] properly is a waiver, unless good

cause is shown.’” Rambo v. Commonwealth, 51 Va. App. 418, 424-25, 658 S.E.2d 688, 691

(2008) (emphasis added) (quoting Harris v. Commonwealth, 39 Va. App. 670, 675, 576 S.E.2d

228, 230 (2003) (en banc)). In this case, the trial court found that Meadows had failed to comply

with Rule 3A:9 and therefore his constitutional arguments were waived. Meadows does not

assign error to the trial court’s denial of his motion to dismiss on the grounds that he failed to

comply with Rule 3A:9.

       Rule 5A:18 provides that this Court will review a ruling of the lower court only if “an

objection was stated with reasonable 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 rule requires that “a

specific argument must be made to the trial court at the appropriate time, or the allegation of

error will not be considered on appeal.” Edwards v. Commonwealth, 41 Va. App. 752, 760, 589

S.E.2d 444, 448 (2003) (en banc). Consequently, because Meadows’s constitutional challenge

was not made at the appropriate time and was deemed waived by the trial court, his argument is

not properly preserved under Rule 5A:18. See, e.g., Parker v. Commonwealth, 42 Va. App. 358,

379, 592 S.E.2d 358, 369 (2004) (holding that it would not consider the merits of the appellant’s

arguments because they were not properly preserved for appeal pursuant to Rule 5A:18 because

the appellant had waived his argument at the trial court by failing to comply with Rule 3A:9).




                                                 -3-
       In addition to Rule 3A:9, there is a statutory requirement for filing motions to dismiss

based on constitutional grounds. Code § 19.2-266.2(A)(ii) mandates that defense motions or

objections seeking “dismissal of a warrant, information, or indictment or any count or charge

thereof on the ground that a statute upon which it was based is unconstitutional shall be raised by

motion or objection.” “Such a motion or objection in a proceeding in circuit court shall be raised

in writing, before trial . . . [and] shall be filed and notice given to opposing counsel not later than

seven days before trial in circuit court.” Code § 19.2-266.2(B). “[T]he plain language of Code

§ 19.2-266.2 requires without exception that defense motions or objections seeking dismissal” on

the basis that the charging statute is unconstitutional must be raised by a defendant “in writing

before trial to preserve his objection.” Williams v. Commonwealth, 57 Va. App. 750, 768 n.4,

706 S.E.2d 530, 539 n.4 (2011) (emphasis added). This Court has unequivocally held that the

filing requirements of Code § 19.2-266.2 are “mandatory.” Upchurch v. Commonwealth, 31

Va. App. 48, 51-53, 521 S.E.2d 290, 291-92 (1999).1 Therefore, because Meadows did not

comply with Code § 19.2-266.2(ii)’s requirement to file a written motion raising his

constitutional objection at least seven days before the trial, he failed to preserve his arguments

for appeal.

       Meadows does not offer any authority explaining why he should be excused from the

filing requirements of Rule 3A:9 or Code § 19.2-266.2, nor does he present any argument as to

the applicability of any exceptions to Rule 5A:18. Moreover, because no evidence was presented

by either party regarding the merits of Meadows’s motion, and because the trial court never


       1
         The legislative rationale behind this statutory mandate is not difficult to discern. The
requirements of both the statute and Rule 3A:9 ensure that both the Commonwealth and the trial
court have adequate notice of the precise alleged constitutional defect in the statute the defendant
is charged with violating. Moreover, in conjunction with section (B) of the statute that requires a
hearing on such motions not later than three days before trial, the Commonwealth is thereby not
deprived of its statutory right to an interlocutory appeal of an adverse decision by the trial court
pursuant to Code § 19.2-398.
                                                  -4-
actually adjudicated the merits of Meadows’s constitutional challenge, there is no record upon

which the merits of Meadows’s arguments can be resolved.

       Consequently, we hold that Meadows’s assignments of error are procedurally defaulted

and therefore we will not address the merits of his constitutional arguments. Accordingly, we

affirm Meadows’s convictions on the basis that he failed to properly preserve his arguments

pursuant to Rule 5A:18.

                                                                                       Affirmed.




                                              -5-
