                   COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Elder and Annunziata
Argued at Richmond, Virginia


JOSEPH D. MORRISSEY
                                         MEMORANDUM OPINION * BY
v.   Record No. 2533-97-2              JUDGE ROSEMARIE ANNUNZIATA
                                             APRIL 20, 1999
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                    William R. Shelton, Judge

          David B. Hargett (Gary R. Hershner;
          Morrissey, Hershner & Jacobs, on brief), for
          appellant.

          John H. McLees, Jr., Assistant Attorney
          General (Mark L. Earley, Attorney General,
          on brief), for appellee.


     Joseph D. Morrissey (“appellant”) was convicted of contempt

based on remarks he made before the circuit court in violation

of Code § 18.2-456(3) and (4).   The court summarily sentenced

appellant to thirty days in jail.   Appellant appeals,

contending:   1) the record does not support his conviction; 2)

the trial court erred, on various constitutional grounds, by

increasing his sentence to thirty days in jail after initially

sentencing him to ten days; and 3) the trial court erred, on two

grounds, by sentencing him to more than ten days in jail.

Because appellant failed to preserve his claims under Rule


     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
5A:18, and because we find no reason to invoke the ends of

justice exception to the Rule’s applicability, we conclude that

our review of these issues raised for the first time on appeal

is procedurally barred.    Thus, we affirm appellant’s conviction.

     On October 20, 1997, appellant appeared before the Circuit

Court of Chesterfield County for the purpose of representing a

client during a sentencing hearing.      After appellant and the

Commonwealth’s Attorney finished argument, the court pronounced

a sentence of twenty-five years in prison with ten of those

years suspended.   The following exchange between appellant and

the court then ensued:

          [APPELLANT]: Your Honor, I don’t -- did I
          hear the Court give him a net sentence of 15
          years?

          THE COURT:     I suspended ten of the 25-year
          sentence.

          [APPELLANT]: That’s outrageous, that is
          absolutely outrageous.

          THE COURT: Mr. Morrissey, the Court cites
          you for contempt and sentences you to ten
          days in jail. Mr. Sheriff?

          [APPELLANT]: I have never seen a more
          jaded, more bitter, more angry jurist in my
          life. He has never been sentenced before.

          THE COURT:     Let him talk, let him talk.

          [APPELLANT]: He’s never come into this
          courtroom before. He’s got a family. He’s
          got a child. He’s got a three-year-old.

          THE SHERIFF:    Step over to the lockup.



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          THE COURT:     Go ahead, Mr. Morrissey.

          [APPELLANT]: He’s got a three-year-old
          child. He’s never done anything before. He
          comes into Court, he’s -- he had never been
          involved in any criminal activity. The
          Commonwealth Attorney said at worst he
          should be sentenced like the codefendant and
          you gave him five additional years more than
          the codefendant gave. It is apparent to me
          that when my clients come into court because
          of whatever bitterness or anger this Court
          has towards me that it’s directing that
          sentence towards my client.

          THE COURT: I don’t have any bitterness
          toward you, Mr. Morrissey. You didn’t try
          this case, you came in on the sentencing
          phase of it and that’s why you don’t
          understand it.

          [APPELLANT]: Judge, I’m as familiar with
          these facts as -- I got in touch -- my
          office got in touch with three detectives
          involved in the case.

          THE COURT: You can explain all that to me,
          but I’ll change it from ten to 30 days in
          jail for the additional comments that you’ve
          just made.

          [APPELLANT]: You asked -- Judge, I’m going
          to appeal it to the Virginia Court of
          Appeals.

          THE COURT:     I hope you will.

     On October 24, 1997, the court entered an order finding

appellant in contempt.    The court’s order cited a violation of

Code §§ 18.2-456(3) and (4).

     On November 6, 1997, appellant moved the court to set aside

its finding of contempt, arguing that it “may only impose a



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maximum term of imprisonment of ten days” because his “acts

f[e]ll, if at all, within the first class of Section 18.2-456.” 1

Appellant also averred that he “did not in any way mean for his

comments to be construed as contumacious to” the circuit court.

     We find that appellant failed to properly preserve the

arguments he raises on appeal.    After the court found appellant

in contempt and imposed punishment summarily, appellant was

permitted to continue addressing the court.      During the colloquy

that followed, appellant raised none of the arguments asserted

on appeal.    Further, appellant failed to raise his arguments

when he subsequently moved the court to set aside its finding of

contempt.    In that motion, appellant’s sole argument was that

his “acts f[e]ll . . . within the first class” of Code

§ 18.2-456 and, on that ground, the court erred in sentencing

him to more than ten days in jail.       Although appellant also

challenges the length of his sentence on appeal, appellant bases

these claims on alternative grounds not raised before the trial

court. 2   Thus, appellant’s claims, raised for the first time on


     1
      A court may not summarily sentence someone to more than ten
days in jail for conduct proscribed by Code § 18.2-456(1). See
Code §§ 18.2-456(1), 18.2-457.
     2
      On appeal, appellant argues the trial court erred in
sentencing him to more than ten days based on: 1) the court's
failure to contemporaneously cite the precise subsection of Code
§ 18.2-456 upon which he was summarily convicted of contempt; and
2) an alleged ambiguity in the court's order, which should be
resolved in his favor and prevent the court from entering a



                                 - 4 -
appeal, are barred.   See Rule 5A:18; see also Buck v.

Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d 414, 416 (1994)

(“[The defendant’s] failure to raise [his] arguments before the

trial court precludes him from raising them for the first time

on appeal.”).

     At oral argument, appellant’s counsel urged this Court to

invoke the “ends of justice” exception to Rule 5A:18, which

would permit consideration of the issues raised on appeal in

order to attain the ends of justice.   Marshall v. Commonwealth,

26 Va. App. 627, 636, 496 S.E.2d 120, 125 (1998).    “‘The ends of

justice exception is narrow and is to be used sparingly’” when

an error at trial is “‘clear, substantial and material.’”

Redman v. Commonwealth, 25 Va. App. 215, 220-21, 487 S.E.2d 269,

272 (1997) (quoting Brown v. Commonwealth, 8 Va. App. 126, 131,

380 S.E.2d 8, 10 (1989)).   “To invoke the ends of justice

exception to Rule 5A:18, the record must ‘affirmatively show[]

that a miscarriage of justice has occurred, not . . . merely

. . . that a miscarriage might have occurred.’”     Id. (quoting

Mounce v. Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744

(1987)).




sentence of more than ten days. Appellant's claim below was
limited to his contention that the evidence only supported a
conviction of contempt under Code § 18.2-456(1).




                               - 5 -
     Finding no justification to invoke the ends of justice

exception in this case, we decline to waive the general bar of

Rule 5A:18 and address appellant’s arguments for the first time

on appeal.   Accordingly, we affirm appellant’s conviction.

                                                        Affirmed.




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