PRESENT: Lemons, C.J., Goodwyn, McClanahan, Powell, Kelsey and McCullough, JJ., and
Millette, S.J.

DONALD KEITH EPPS
                                                                    OPINION BY
v. Record No. 161002                                       JUSTICE S. BERNARD GOODWYN
                                                                    June 1, 2017
COMMONWEALTH OF VIRGINIA

                      FROM THE COURT OF APPEALS OF VIRGINIA

       In this appeal, we consider whether an indictment returned by a grand jury as a true bill in

open court is invalid when the order recording the indictment was not entered until after the trial

on the indictment, and no objection was made to the indictment until after trial.

                                          BACKGROUND

       On October 27, 2014, a grand jury for the City of Danville returned indictments in open

court against Donald K. Epps (Epps) for assault and battery, in violation of Code § 18.2-57, and

abduction, in violation of Code § 18.2-47. Epps pled guilty to assault and battery, and not guilty

to abduction. After a bench trial on November 17, 2014, the circuit court convicted Epps of both

charges. On January 5, 2015, the court sentenced Epps to 12 months in jail, with 6 months

suspended, for assault and battery, and 5 years in prison, with 2 years suspended, for abduction.

       On January 7, 2015, “in contemplation of” an appeal challenging the sufficiency of the

evidence, Epps contacted the clerk to obtain the order recording the presentation of his

indictments, and learned that no such order had been entered. The same day, Epps moved to

dismiss his convictions on the ground that the indictments were improper under Simmons v.

Commonwealth, 89 Va. 156, 157, 15 S.E. 386, 387 (1892).

       On January 13, 2015, the circuit court entered a written order memorializing the grand

jury’s October 27 actions. After a hearing on January 22, 2015, the court denied Epps’s motion

to dismiss. Epps appealed to the Court of Appeals of Virginia.
       The Court of Appeals affirmed Epps’s convictions in a published opinion. 1 Epps v.

Commonwealth, 66 Va. App. 393, 785 S.E.2d 792 (2016). In assigning error on the ground that

the circuit court lacked jurisdiction to try him “because no order recording the presentation of the

indictment in open court had been entered” prior to his trial, Epps stated that this issue required

no preservation, but nevertheless maintained that the January 7, 2015 motion preserved his

objection. The Court of Appeals held that the “validity of an indictment is established by the

grand jury returning a true bill in open court and the subsequent entry and recordation of an order

memorializing those events,” but also cited Supreme Court of Virginia precedent which has held

that felony prosecution by way of an indictment is not jurisdictional, and can be waived. Id. at

399-400, 785 S.E.2d at 795.

       The Court of Appeals noted that Epps challenged only the fact that the presentment order

had not been entered prior to his trial, and explained that the timing of the recordation was

merely a procedural requirement because no statute, rule or case law contains a time requirement

for entry of the order. Id. at 400-01, 785 S.E.2d at 796. The Court of Appeals ultimately

concluded that Epps was properly indicted because of the long-established principle that a court

speaks through its written orders, and the January 13 order specifically stated that the grand jury

met on October 27, 2014, and returned a true bill in open court. Id.

       This Court granted Epps an appeal on the following assignment of error: 2




       1
         In the Court of Appeals, Epps challenged the sufficiency of both the indictment and of
the evidence. The Court of Appeals found the evidence sufficient, and this Court refused Epps’s
assignment of error on that issue.
       2
         While Epps does not expressly restrict his challenge to the abduction charge, the Court
of Appeals limited its consideration of his argument to that charge, noting that he pled guilty to
assault and battery. Epps does not challenge this holding, so we similarly confine our analysis to
the abduction indictment.
                                                 2
        The Court of Appeals of Virginia erred in affirming the conviction of Mr. Epps,
        reasoning that the entry of the order recording that the grand jury returned the
        petitioner’s indictment in open court did not have to be entered prior to his trial
        because it is a mere procedural requirement.

                                                   ANALYSIS

        “The validity of [an] 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). Similarly, we review

compliance with statutes and this Court’s Rules de novo. Woodard v. Commonwealth, 287 Va.

276, 280, 754 S.E.2d 309, 311 (2014).

        Epps asserts that, while it is undisputed that there was clearly an indictment prior to trial

and that the indictment was presented in open court prior to trial, his conviction must be reversed

because no order recording the presentment of the indictment in open court existed at the time of

the trial. He asserts that at the time of the trial he had not been validly indicted, and that this is

fatal to his prosecution because it deprived the circuit court of jurisdiction over him.

        Epps relies upon precedent set forth by this Court in Cawood’s Case, 4 Va. (2 Va. Cas.)

527 (1826) and Simmons, 89 Va. at 156-57, 15 S.E. 387, in support of his position that he was

not properly indicted and his conviction is therefore void.

        As properly recounted by the Court of Appeals in its opinion:

        In Cawood, the defendant’s name was not included on the order that listed the
        indictments returned by the grand jury on April 26-27, 1824. The Supreme Court
        found that Cawood had not been properly indicted because there was no record
        that an indictment against him had ever been returned in open court. Because the
        court found it was “essential that a record should be made of the [grand jury’s]
        finding on the Order Book,” the defendant’s conviction was reversed.

               Likewise, in Simmons, there was no evidence that the indictment, which
        had been endorsed by the foreman as a “true bill,” had ever been presented in
        court and “the fact recorded.” No valid indictment could be found in the Lee
        County Record Book. Based on this omission, the Supreme Court found that “the
        accused [was] not indicted.”

Epps, 66 Va. App. at 399, 785 S.E.2d at 795 (citations omitted).
                                                   3
        Epps claims that under Cawood and Simmons, a valid indictment requires that (1) the

grand jury return a true bill (2) in open court (3) that is recorded by the court. He challenges

only element (3), arguing that the indictment against him in this case was not valid because the

order was not entered of record until after his trial.

        Cawood and Simmons did not involve an alleged flaw regarding the timing of the

recording of the grand jury’s actions. Instead, the indictments in those cases were flawed

because there was no evidence that the grand jury returned a true bill naming the defendant in

open court. Cawood, 4 Va. at 541-42, 547; Simmons, 89 Va. at 156-57, 15 S.E. at 387. In

contrast, here, Epps concedes that the grand jury did, in fact, hand down a true bill in open court.

Thus, Cawood and Simmons are inapposite to the issue here.

        The indictment requirement is statutory and governed by the Code. “An indictment is a

written accusation of a crime, prepared by the attorney for the Commonwealth and returned ‘a

true bill’ upon the oath or affirmation of a legally impanelled grand jury.” Code § 19.2-216.

“The 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.” Rule 3A:5(c). 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.” None of these statutes or rules requires that an order memorializing this action

must be entered prior to trial in order for the indictment to be valid.

        Similarly, Code § 17.1-123, “How orders are recorded and signed,” does not require that

an order be entered on the same day as the event it is memorializing in order to be valid. See

also Weatherman v. Commonwealth, 91 Va. 796, 798, 22 S.E. 349, 350 (1895) (“No order made

by the court or proceeding had in a case during a term and entered by the clerk in the record book



                                                   4
should be allowed to become invalid, or to fail of effect, by the omission of the judge, through

inadvertence or neglect, to sign the record of the orders and proceedings of the day on which it

was made or took place.”).

        Thus, there is no time requirement for entry of an order recording the return of an

indictment in open court. Therefore, the circuit court’s delay in entering the order recording the

grand jury’s October 27, 2014 action until January 13, 2015 did not render Epps’s indictment

invalid. It is undisputed that at the time the circuit court ruled upon Epps’s motion to dismiss,

the circuit court’s record was clear that the grand jury had returned a true bill in open court, and

that fact had been recorded by the court.

        Further, this Court has previously noted that, under statutes enacted after Cawood and

Simmons, the lack of a recording of the indictment did not render the indictment, or trial thereon,

void. In Hanson v. Smyth, 183 Va. 384, 389, 32 S.E.2d 142, 144 (1944), this Court

acknowledged that Cawood and Simmons had held that “it is essential to the validity of an

indictment that it affirmatively appear by an entry in the order book that the indictment was

returned by the grand jury into open court,” but, notably, we did not characterize those cases as

requiring the recordation to occur prior to trial. We stated that subsequent amendments to the

Code showed “a clear expression of the legislative policy that the requirement of an indictment

in the prosecution for a felony may be waived, and hence is not jurisdictional.” Id. at 390, 32

S.E.2d at 144 (citing Pine v. Commonwealth, 121 Va. 812, 835, 93 S.E. 652, 659 (1917)).

“Since 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. at 390-

91, 32 S.E.2d at 144. Accordingly, even if the indictment was not valid before the recording



                                                   5
order was entered after the trial, the defect in the indictment would not have deprived the circuit

court of jurisdiction to try Epps.

       Rule 3A:9(b)(1) and (c) provide that

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

“Failure to comply with these requirements constitutes a waiver.” Prieto v. Commonwealth, 283

Va. 149, 181-82, 721 S.E.2d 484, 503 (2012). “For good cause, however, relief from any waiver

may be granted under Rule 3A:9(d).” Id. at 182, 721 S.E.2d at 503-04.

       Epps did not assign error to the holding of the Court of Appeals that an indictment is not

jurisdictional, and he admits that he did not object to the indictment until 51 days after he had

entered pleas and been convicted. Thus, the January 7, 2015 motion was insufficient to prevent a

waiver of his objection to the indictment.

       Epps argues that the procedural bar of Rules 3A:9(b)(1) and (c) does not apply to his

case, because there was no indictment to challenge prior to trial. We disagree, and rule that Epps

was subject to the requirement, embodied in Rules 3A:9(b)(1) and (c), mandating that he

challenge the indictment at least seven days before his November 17, 2014 trial, which he

concedes he did not do. Because Epps did not argue that there was good cause to excuse this

failure, he waived the right to object to the indictment. Rule 3A:9(d).

                                             CONCLUSION

       Accordingly, for the foregoing reasons, we will affirm the judgment of the Court of

Appeals.

                                                                                            Affirmed.



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