COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Alston and Senior Judge Bumgardner

Argued by teleconference

MURRAE FONCHE MACK

MEMORANDUM OPINION* BY

v. Record No. 1584-11-1 JUDGE ROBERT P. FRANK

NOVEMBER 6, 2012

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE

E. Preston Grissom, Judge Designate

Murrae Fonche Mack, pro se.

Donald E. Jeffrey, III, Senior Assistant Attorney General 

(Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Murrae Fonche Mack, appellant, was convicted in a bench trial of one count of possession 

with intent to distribute marijuana, in violation of Code § 18.2-248.1, one count of possession with 

intent to distribute ecstasy, in violation of Code § 18.2-248, and one count of simple possession of 

cocaine, in violation of Code § 18.2-250. On appeal, he assigns a number of errors, regarding the 

admission of evidence, credibility of witnesses, and sufficiency of the evidence.1

 For the reasons 

stated, we dismiss the appeal.

BACKGROUND

Because of the procedural resolution of this appeal, the underlying facts of the case are not 

relevant to our analysis. 

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

1 On October 11, 2012, appellant filed three additional motions: 1) to continue oral 

argument; 2) for an extension of time to file a reply brief; and 3) for the appointment of counsel 

or a legal advisor. We do not address these motions, as they were denied by separate orders.

UNPUBLISHED
- 2 -

ANALYSIS

In his opening brief, appellant lists the following eight assignments of error2:

The evidence which should be stricken consist of:

I. The admission of the certificate of analysis into evidence, dated Oct. 21, 2009, when 

an objection was timely filed.

II. The SWAT Officer Hills testimony of the Defendant location and position on the 

couch.

III. The SWAT Officer Hills testimony of the Defendants’ clothing.

IV. The SWAT Officer Hills testimony on where the child’s playpurse and child’s 

backpack was originally located.

V. The staged photograph of the childs playpurse and the childs backpack by (Sgt. 

Sawyer) the investigator.

VI. The bank statement belonging to the Defendant being used to establish him as a 

co-tenant or something more than a guest and used to tie the defendant to something 

illegal.

VII. The proximity between the Defendant and child backpack as well as the childs 

playpurse being used to establish awareness of the contents and dominion and 

control.

VIII. The drug expert’s testimony (Kiley S. Roberts) in regards to the drugs being 

inconsistent with personal use.

These assignments of error appear to address issues of sufficiency, witness credibility, and 

the admissibility of evidence. However, appellant listed only one assignment of error in his petition 

 2 We recite the assignments of error, including grammatical errors, verbatim from 

appellant’s opening brief.
- 3 -

for appeal, which this Court granted. The Rules of the Court of Appeals of Virginia prohibit an 

appellant from adding assignments of error between the petition stage and the briefing stage. Rule 

5A:12(c)(1)(i) provides that “[o]nly assignments of error assigned in the petition for appeal will 

be noticed by this Court. If the petition for appeal does not contain assignments of error, it shall 

be dismissed.” See also Dowdy v. Commonwealth, 278 Va. 577, 590 n.14, 686 S.E.2d 710, 717 

n.14 (2009) (noting that it is improper for an appellant to substantively alter an assignment of error 

from that stated in his petition for appeal). Under the Rules, this Court may not consider any issues 

that were not noted in appellant’s petition for appeal. Therefore, we may only address the 

assignment of error which was contained in the petition.

That assignment of error was, in its entirety: “The trial court erred in denying the 

defendant’s motion to strike where the verdict is plainly wrong and without evidence to support it.” 

This assignment of error is inadequate and is in violation of Rule 5A:12(c)(1)(ii), which addresses

insufficient assignments of error, stating:

An assignment of error which does not address the findings or 

rulings in the trial court or other tribunal from which an appeal is 

taken, or which merely states that the judgment or award is 

contrary to the law and the evidence is not sufficient. If the 

assignments of error are insufficient or otherwise fail to comply 

with the requirements of this Rule, the petition for appeal shall be 

dismissed.

In his brief, appellant asks us to apply the ends of justice exception of Rule 5A:18 to the

new assignments of error contained in his opening brief. However, that exception exists within 

the parameters of Rule 5A:18, but not within the parameters of Rule 5A:12, a distinction we have 

repeatedly noted. See McDowell v. Commonwealth, 57 Va. App. 308, 318-19, 701 S.E.2d 820, 

825 (2010) (“[U]nlike Rule 5A:18, Rule 5A:12 contains no ‘good cause’ or ‘ends of justice’

exception.”). An assignment of error that does not point to a specific error of the trial court is 

not cognizable on appeal. See Coleman v. Commonwealth, 60 Va. App. 618, 620, 731 S.E.2d 
- 4 -

22, 23 (2012) (“We now conclude dismissal is mandated by Rule 5A:12(c)(1), which provides 

that ‘the petition shall list . . . the specific errors in the rulings below upon which the party 

intends to rely’ and that ‘[a]n assignment of error which does not address the findings or rulings 

in the trial court . . . is not sufficient.’” (quoting Cf. Envtl. Staffing Acquisition Corp. v. B & R 

Constr. Mgmt., Inc., 283 Va. 787, 792, 725 S.E.2d 550, 553 (2012))).

We are mindful that “[e]ven pro se litigants must comply with the rules of court.” 

Francis v. Francis, 30 Va. App. 584, 591, 518 S.E.2d 842, 846 (1999) (citing Diamond v. 

Diamond, 20 Va. App. 481, 458 S.E.2d 303 (1995)). While appellant is entitled to represent 

himself on appeal, his pleadings must be held to the same standard as if he were represented by 

counsel. The Supreme Court said in Faretta v. California, 422 U.S. 806, 834-35 n.46 (1975), that 

“[t]he right of self-representation is not a license . . . not to comply with the relevant rules of 

procedural and substantive law.”

Because the assignments of error in appellant’s opening brief were not contained in his 

petition for appeal, we are precluded by Rule 5A:12(c)(1)(i) from considering those assignments of 

error. Further, the single assignment of error noted in his petition for appeal is inadequate and does 

not comply with Rule 5A:12(c)(1)(ii). Likewise, we may not address that assignment of error. As 

such, there remains nothing properly before this Court for appellate consideration. Therefore, we 

decline to address the merits of appellant’s argument.

CONCLUSION

Appellant failed to properly note an assignment of error cognizable before this Court. 

Therefore, there is nothing for us to decide, and we dismiss the appeal.

Dismissed.