                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges Humphreys, Beales and O’Brien
PUBLISHED


            Argued at Norfolk, Virginia


            RAYSHAWN TORRELL GREER
                                                                                OPINION BY
            v.     Record No. 0175-16-1                                  JUDGE RANDOLPH A. BEALES
                                                                             FEBRUARY 21, 2017
            COMMONWEALTH OF VIRGINIA


                         FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                                          Timothy S. Fisher, Judge

                           Jeffrey C. Rountree for appellant.

                           Katherine Quinlan Adelfio, Assistant Attorney General (Mark R.
                           Herring, Attorney General, on brief), for appellee.


                   In this appeal, Rayshawn Torrell Greer (“appellant”) argues that the trial court erred in

            denying his motion to strike the charge of possession of a firearm by a convicted felon, where the

            common law defense of necessity applied to his possession of a firearm. Appellant also asks this

            Court to reconsider its decision from Commonwealth v. Greer, 63 Va. App. 561, 760 S.E.2d 132

            (2014), where this Court reversed the trial court’s ruling in part, vacated appellant’s sentence,

            and remanded the case to the trial court for a new sentencing proceeding before a different jury.

                                                     I. BACKGROUND

                                                A. PROCEDURAL HISTORY

                   On September 12, 2013, appellant was tried and convicted by a jury in Newport News

            Circuit Court of one count of possession of a firearm by a violent felon in violation of Code

            § 18.2-308.2. During the penalty phase of appellant’s trial, the trial court gave the following

            instruction to the jury: “You have found the defendant guilty of the crime of possessing or

            transporting a firearm after having been convicted of a violent felony. Upon consideration of all
the evidence you have heard, you shall fix the defendant’s punishment at a specific term of

imprisonment of five years.” During its deliberations, the jury submitted two questions to the

trial court. The first question asked, “Is the 5 years the only option?” The trial court responded,

“The answer is yes.” The second question asked, “What if we do not all agree to fix punishment

of 5 years?” In response to that question, the trial court issued an Allen charge and instructed the

jury to resume its deliberations.1

       Later, the jury submitted the following question: “We cannot all agree on 5 years but we

agree on 2 years. Do we have any other options or sit here till we agree on 5 years? Is this the

minimal sentence for this crime?” The trial court brought the jury back into the courtroom and

asked the foreman if the jury had reached a unanimous verdict. The foreman indicated that the

jury had reached a unanimous verdict, so the trial court directed the jury to return to the jury

room to complete the sentence verdict form. Ultimately, the jury returned a verdict sentencing

appellant to two years in prison. The sentencing verdict form stated, “We, the jury, having found

the defendant guilty of Possession of a Firearm by Convicted Violent Felon, fix his punishment

at 2 years.” The jury had struck through “5 years” on the sentencing verdict form and replaced it

with “2 years.”

       After the trial court excused the jury, the Commonwealth objected to the jury’s sentence

as being below the mandatory minimum sentence required by statute. The trial court overruled

the objection and entered an order on September 12, 2013, sentencing appellant in accordance

with the jury’s verdict. The Commonwealth then filed a written motion to set aside sentence and




       1
         Allen v. United States, 164 U.S. 492 (1896). An Allen charge reminds the jurors of
their duty to reach a verdict and “is appropriate ‘when jurors have announced their inability to
agree.’” Joseph v. Commonwealth, 249 Va. 78, 87, 452 S.E.2d 862, 868 (1995) (quoting
Petcosky v. Bowman, 197 Va. 240, 252, 89 S.E.2d 4, 13 (1955)).
                                                -2-
to impanel a new jury on September 17, 2013. After a hearing on September 25, 2013, the trial

court denied the motion to set aside the sentence.

        The Commonwealth appealed the trial court’s imposition of the jury’s recommended

sentence to this Court pursuant to Code § 19.2-398(C). This Court found that the jury’s sentence

was unlawful and that the trial court’s imposition of that sentence was void ab initio.

Commonwealth v. Greer, 63 Va. App. 561, 760 S.E.2d 132 (2014) (“Greer I”). Accordingly, this

Court vacated the September 12, 2013 final order in part and remanded the case to the trial court

for a new sentencing proceeding before a different jury. On January 11, 2016, the trial court,

sitting without a jury, sentenced appellant to five years in prison, with three years of that

sentence to run concurrently with a federal sentence appellant was serving at that time. This

time the Commonwealth did not appeal, but appellant filed his notice of appeal on February 2,

2016.

        On June 10, 2016, this Court granted appellant’s petition for appeal. This Court directed

the parties to address in their briefs this Court’s jurisdiction over this appeal by responding to the

following question:

               Was the original sentencing order dated September 12, 2013 the
               final order for purposes of computing the filing deadline for
               appellant’s notice of appeal where we subsequently reversed the
               trial court’s entry of that order holding “that the jury’s sentence of
               two years was erroneous and the trial court’s imposition of that
               sentence was void ab initio”? Commonwealth v. Greer, 63
               Va. App. 561, 569, 760 S.E.2d 132, 135 (2014).

                        B. FACTS RELATED TO APPELLANT’S CONVICTION

        At trial, appellant testified in his own defense. On August 4, 2010, appellant told Frank

Griffin that he was no longer allowed to stay at appellant’s apartment. Appellant testified that he

did not live with Griffin, but that Griffin “stayed there from time to time.” Appellant claimed

that Griffin had “overstayed his welcome and was asking [appellant] for money and all types of

                                                 -3-
strange behavior.” Later that night, appellant went to a nightclub called the Alley. When

appellant left the nightclub around 1:30 or 2:00 a.m., he checked his cell phone and noticed that

he had several missed calls from Griffin. At some point after appellant had returned to his

residence, he answered a phone call from Griffin. Appellant testified that Griffin demanded to

know where appellant was. Appellant described Griffin as aggressive. Appellant lied to Griffin

by telling him that he “was at Jobet’s parking lot.” Appellant testified that he was afraid that

Griffin would try to harm him.

       After he had spoken to Griffin on the phone, appellant retrieved his firearm from his

apartment to arm himself. He then left his apartment and “went to the next parking lot” to get

“as far away from [his] apartment as possible.” The parking lot in question was the same

parking lot where appellant told Griffin he was located, despite appellant’s having testified that

he was afraid of Griffin. The Commonwealth asked the question, “You went inside your

apartment, armed yourself with the firearm and went to the exact place you supposedly lied

about to stay away from him. Is that what you’re testifying to today?” Appellant responded,

“Yes, ma’am.” Appellant then testified:

               At the point in time when I told him I was at Jobet’s parking lot, I
               really wanted to keep him as far away from my apartment as
               possible and really wanted to get a location on where he was at. I
               didn’t feel safe not knowing where he was at. So I really felt I
               would be safe if I knew his location.

Eventually, appellant arrived at the parking lot near Jobet’s and observed Griffin outside of

Jobet’s residence. Appellant noticed that Griffin was carrying a firearm in his hand. Appellant

testified that Griffin then called out to appellant. However, Police Detective Wayne

Verdaasdonk testified that appellant told him that it was appellant himself who first called out to

Griffin by stating, “Hey, I’m over here.” When appellant first observed Griffin, appellant did not

leave – even though he knew Griffin was armed and he admitted that nothing prevented him

                                                -4-
from being able to leave the scene. Appellant also testified he did not leave because he “really

didn’t believe the situation was as serious as it was” at that time despite having previously

testified that he did not feel safe around Griffin.

       Griffin then approached appellant, who tried to keep his distance from Griffin by

standing on the other side of a car. When Griffin got close enough to appellant, Griffin put his

gun to appellant’s head. Appellant pushed the gun aside, claiming later that he believed that

Griffin was “horseplaying.” When Griffin placed his gun to appellant’s head a second and third

time, appellant realized Griffin “was serious.” A struggle between the two individuals ensued as

both men struggled for control of Griffin’s weapon. During that struggle, appellant “just

panicked,” pulled out his own firearm, and shot Griffin twice. Griffin died from his wounds.2

       Police Detective Verdaasdonk testified that he spoke with appellant on August 6, 2010

about the shooting death of Frank Griffin. During the course of the interview, appellant told

Verdaasdonk that he shot Griffin with a gun that appellant owned – “a Taurus 9mm” handgun.

Appellant told Verdaasdonk that he had been convicted of a felony and that he knew he was not

allowed to carry a firearm. Appellant admitted to Verdaasdonk that he sold marijuana, and he

explained to Verdaasdonk that he carries a firearm because he lives in a dangerous neighborhood

and because he sells marijuana. After the conclusion of his interview with the police, appellant

voluntarily took the police to his girlfriend’s house to retrieve his firearm.

                                            II. ANALYSIS

   A. JURISDICTION OF THIS COURT TO CONSIDER APPELLANT’S FIRST ASSIGNMENT OF ERROR

       In this Court’s order granting appellant’s petition for appeal, this Court directed the

parties to respond to the following question:


       2
        While not expressly clear from the record, it appears from the testimony of Detective
Verdaasdonk that charges against appellant regarding the killing of Griffin were not pursued
based on the belief that appellant had acted in self-defense.
                                                -5-
                Was the original sentencing order dated September 12, 2013 the
                final order for purposes of computing the filing deadline for
                appellant’s notice of appeal where we subsequently reversed the
                trial court’s entry of that order holding “that the jury’s sentence of
                two years was erroneous and the trial court’s imposition of that
                sentence was void ab initio”? Commonwealth v. Greer, 63
                Va. App. 561, 569, 760 S.E.2d 132, 135 (2014).

Appellant argues that because this Court determined that the September 12, 2013 sentencing

order was void ab initio and a complete nullity, that order cannot be the final order for purposes

of computing the filing deadline for appellant’s notice of appeal in this matter. The

Commonwealth argues that appellant cannot challenge the merits of his conviction in this appeal

because he failed to appeal his conviction in a timely fashion in 2013. We find that appellant’s

failure to file a timely notice of appeal of the trial court’s September 12, 2013 final order of

conviction deprived this Court of active jurisdiction to address appellant’s first assignment of

error.

         Pursuant to Code §§ 17.1-408 and 8.01-675.3, “a notice of appeal to the Court of Appeals

in any case within the jurisdiction of the court shall be filed within 30 days from the date of any

final judgment order, decree or conviction.” Code § 8.01-675.3. The Rules of the Supreme

Court state,

                No appeal shall be allowed unless, within 30 days after entry of
                final judgment or other appealable order or decree, or within any
                specified extension thereof granted by this Court under Rule
                5A:3(a), counsel files with the clerk of the trial court a notice of
                appeal, and at the same time mails or delivers a copy of such notice
                to all opposing counsel.

Rule 5A:6(a). In order for a notice of appeal to confer active jurisdiction on this Court, it must

be timely filed and identify the order being appealed. Roberson v. Commonwealth, 279 Va. 396,

407, 689 S.E.2d 706, 712-13 (2010).

         First, we note that this Court’s decision in Greer I only vacated the trial court’s final,

appealable September 12, 2013 order in part. This Court did not remand the matter for a new
                                                  -6-
trial because this Court did not vacate appellant’s criminal conviction. Instead, this Court merely

vacated appellant’s sentence and remanded the case to the trial court for a new sentencing

hearing before a different jury. 63 Va. App. at 579, 760 S.E.2d at 141. For these reasons,

appellant’s argument that the final order of his conviction entered September 12, 2013 was void

ab initio is without merit.

       Second, our review of the relevant statutes compels us to conclude that the

Commonwealth’s decision to exercise its limited right to a post-trial appeal of the trial court’s

imposition of the void sentence did not preclude appellant in any way from perfecting his own

appeal of the final order of conviction rendered on September 12, 2013. In addition, Code

§ 19.2-401 expressly allows a defendant to file a cross-appeal in the event that the defendant also

is aggrieved by the order appealed by the Commonwealth (“If the Commonwealth appeals, the

defendant may cross appeal from any orders from which the Commonwealth may appeal,

pursuant to [Code] § 19.2-398.”). Thus, appellant had the statutory right to challenge his

conviction either by filing his own notice of appeal within the required time frame or by filing a

cross-appeal pursuant to Code § 19.2-401. Appellant did neither in this instance.

       When the trial court entered its final, appealable order on September 12, 2013, appellant

did not notice an appeal of his conviction within the required thirty-day period. After appellant

was initially sentenced to only two years imprisonment, appellant and his counsel made the

strategic decision not to challenge the merits of his conviction and instead argued on appeal that

his sentence was proper – even though that sentence fell below the statutory mandatory

minimum of five years for that offense. See Code § 18.2-308.2. Appellant did not file his notice

of appeal of the final order of conviction until February 2, 2016. Accordingly, we conclude that

appellant’s notice of appeal was not timely filed with respect to appellant’s first assignment of

error challenging the merits of his conviction below. Because the time requirement for the filing

                                                -7-
of a notice of appeal is jurisdictional, this Court is without active jurisdiction to address

appellant’s first assignment of error. See Roberson, 279 Va. at 407, 689 S.E.2d at 712-13

(holding that in order for a notice of appeal to confer active jurisdiction on this Court, it must be

timely filed); see also Watkins v. Fairfax Cty. Dep’t of Family Servs., 42 Va. App. 760, 769, 595

S.E.2d 19, 24 (2004) (“‘[T]he [30-day] time requirement for the filing of a notice of appeal is

jurisdictional,’ because it ‘forestalls the finality of the appealed adjudication, notifies the

appellee that he cannot rest on his victory, and initiates the time frame of the case in the Court of

Appeals . . . .’” (quoting Zion Church Designers & Builders v. McDonald, 18 Va. App. 580, 583,

445 S.E.2d 704, 705 (1994))). For these reasons, we dismiss appellant’s first assignment of error

for lack of active jurisdiction to consider it.

                   B. RECONSIDERATION OF THIS COURT’S DECISION IN GREER I

        Appellant asserts in his second and third assignments of error that this Court erred in

Greer I by reversing the trial court’s sentencing of appellant to two years of imprisonment. The

Commonwealth asserts that the law of the case doctrine bars this Court from reconsidering its

earlier ruling vacating Greer’s unlawful two-year sentence.

        “The ‘law of the case’ doctrine is well established in the courts of this Commonwealth.”

Miller-Jenkins v. Miller-Jenkins, 276 Va. 19, 26, 661 S.E.2d 822, 826 (2008). Under this

doctrine,

                [when] there have been two appeals in the same case, between the
                same parties, and the facts are the same, nothing decided on the
                first appeal can be re-examined on a second appeal. Right or
                wrong, it is binding on both the trial court and the appellate court,
                and is not subject to re-examination by either. For the purpose of
                that case, though only for that case, the decision on the first appeal
                is the law.

Id. (quoting Steinman v. Clinchfield Coal Corp., 121 Va. 611, 620, 93 S.E. 684, 687 (1917)).

This matter represents the second appeal of the same case, is between the same parties, and

                                                  -8-
involves the same facts. Accordingly, under the law of the case doctrine, this Court’s decision in

Greer I was binding on both the trial court on remand and this Court on appeal.

       The General Assembly, however, has created a statutory exception to the law of the case

doctrine in the context of certain Commonwealth appeals. Code § 19.2-409 reads:

               This section applies only to pretrial appeals. The provisions of
               § 19.2-243 shall not apply to the period of time commencing when
               the Commonwealth’s notice of pretrial appeal is filed pursuant to
               this chapter and ending 60 days after the Court of Appeals or
               Supreme Court issues its mandate disposing of the pretrial appeal.
               Such finality of the Court of Appeals’ decision shall not preclude a
               defendant, if he is convicted, from requesting the Court of Appeals
               or Supreme Court on direct appeal to reconsider an issue which
               was the subject of the pretrial appeal.

(Emphasis added). Thus, in a scenario in which (1) the Commonwealth has exercised its right to

a pretrial appeal, (2) an opinion of this Court is rendered, and (3) the defendant is ultimately

convicted in the trial court on remand, the defendant would have a statutory right to the

reconsideration of “an issue which was the subject of the pretrial appeal.” Id. The matter of

Greer I, however, came before this Court by way of the Commonwealth’s post-trial appeal

pursuant to Code § 19.2-398(C) (“A petition for appeal may be taken by the Commonwealth in a

felony case after conviction where the sentence imposed by the circuit court is contrary to

mandatory sentencing or restitution terms required by statute.”).

       “It is a fundamental principle of statutory construction that expressio unius est exclusio

alterius, or ‘where a statute speaks in specific terms, an implication arises that omitted terms

were not intended to be included within the scope of the statute.’” Conkling v. Commonwealth,

45 Va. App. 518, 522, 612 S.E.2d 235, 237 (2005) (quoting Commonwealth v. Brown, 259 Va.

697, 704-05, 529 S.E.2d 96, 100 (2000)). Applying that principle of statutory construction to the

instant case, this Court finds that the General Assembly has not extended to post-trial

Commonwealth appeals the right to reconsideration of issues previously decided by this Court.

                                                -9-
In contrast, the General Assembly has expressly extended this right to reconsideration in pretrial

Commonwealth appeals. The Court notes that this distinction regarding the finality of decisions

of this Court in Commonwealth pretrial appeals versus post-trial appeals is also present in Code

§ 17.1-410(A)(4):

                When the Court of Appeals has . . . decided an appeal, its decision
                shall be final, without appeal to the Supreme Court, in:

                    ....

                Appeals in criminal cases pursuant to §§ 19.2-398 and 19.2-401.
                Such finality of the Court of Appeals’ decision shall not preclude a
                defendant, if he is convicted, from requesting the Court of Appeals
                or Supreme Court on direct appeal to reconsider an issue which
                was the subject of the pretrial appeal[.]

Therefore, absent a statutory provision specifically granting to a defendant the right to request

this Court on direct appeal to reconsider an issue which was the subject of a prior post-trial

Commonwealth appeal, this Court must conclude that the law of the case doctrine bars our

reconsideration of this Court’s decision in Greer I.3

                                          III. CONCLUSION

        In summary, we find that appellant’s February 2, 2016 notice of appeal was not timely

filed. For that reason, it is insufficient now to confer active jurisdiction on this Court at this

point to consider appellant’s challenge of the merits of his conviction. Accordingly, we dismiss

appellant’s first assignment of error. In addition, on Assignments of Error 2 and 3, we find that

the law of the case doctrine prevents appellant from mounting a successful challenge to this

Court’s decision in Greer I. For these reasons, we dismiss the appeal’s assignment of error



        3
         Moreover, the Supreme Court has already considered and dismissed appellant’s appeal
of this Court’s decision in Greer I. By order entered September 19, 2014, the Supreme Court
found that “the July 22, 2014 judgment of the Court of Appeals in the Commonwealth appeal
filed pursuant to Code § 19.2-398(C) [was] final, without appeal to this Court,” pursuant to
Code § 17.1-410(A)(4) and (B).
                                               - 10 -
challenging appellant’s conviction, and we affirm the trial court with regard to appellant’s

assignments of error related to his sentence.4

                                                           Affirmed in part, and dismissed in part.




       4
           As we noted supra, because the Commonwealth did not file an appeal regarding how
the trial court handled the resentencing on remand in the trial court, we do not reach the issue of
whether the sentencing on remand was appropriate.
                                               - 11 -
