COURT OF APPEALS OF VIRGINIA

Present: Judges Al ston, McCullough and Se nior Judge Clements Argued by teleconference

COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY v. Record No. 0741-13-3 J UDGE STEPHEN R. McCULLOUGH SEPTEMBER 10, 2013 SHANNON SMITH MITCHELL

FROM THE CIRCUIT COUR T OF FRANKLIN COUNTY William N. Alexander, II, Judge Alice T. Armstrong, Assistant Attorney General II (Kenneth T. Cuccinelli, II, Attorney General, on briefs), for appellant. Melissa P. Keen (Furrow & Keen , P.C., on brief), for appellee.

In this pretrial appeal, the Commonwealth challenges the trial court’s order granting suppression of evidence seized from the defendant . We also ordered the parties to brief the question of whether the Commonw ealth’s appeal was timely file d. We conclude that the Commonwealth’s appeal is properl y before us. We further reve rse the order of suppression and remand the case for further proceedings.

BACKGROUND Kevin Glenn Bowling, a loss prevention asso ciate at a Wal-Mart store in Roanoke County, observed the appellee, Shan non Smith Mitchell, place items of clothing in her cart. At a separate location in the store, Mitchell remove d the hangers from the clothing and placed the clothing in her purse. Before leaving, Mitche ll paid for a small item but did not pay for the clothing concealed in her purse. Bowling approach ed Mitchell in the parking lot and asked about

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - the merchandise, but she ignored him. She clim bed into the passenger seat of a truck, and the vehicle drove away. Bowling obtained a descript ion and a license plate number for the truck. He then called the police. Corporal Terry Scott Dameron, with the Fr anklin County Sheriff’s Office, observed a suspect vehicle matching a description he had re ceived earlier from his dispatcher. He stopped

the vehicle and asked Mitchell whether there was anything stolen in the ve hicle. She handed him a bag containing some clothing. Mi tchell stated that she had stolen the items from Wal-Mart, but that she would go back and pay for them. After she handed him the bag, he asked her if there was anything else illegal in the vehicle, such as guns or drugs. Mitchell stated that there was a “crack stem” in her purse. Sh e retrieved it and handed it over to Corporal Dameron. Mitchell

indicated that she used it to smoke crack cocain e. Corporal Dameron seized her purse and found additional incriminating evidence suggestive of drug use. He placed her under arrest for possession of cocaine. Mitchell was charged in Franklin County w ith possession of cocaine. She moved to suppress the evidence, arguing that the stop was not supported by reasonable suspicion and, further, that the statements she made were obtaine d in violation of her Fifth Amendment rights. On February 20, 2013, the trial court held a he aring on the motion. At the conclusion of the hearing, the court ordered the parties to file briefs setting forth their respective positions. A transcript of the hearing was f iled in the trial court on February 28, 2013. The record does not

reveal who filed th is transcript. On March 28, 2013, the trial court issued a detailed memorandum opinion. The court first held that the stop was reasonable because it was based on reasonable articulable suspicion. Second, the court held that afte r Mitchell admitted to stealing the clothes and handed the clothing to the officer, she was in cust ody for Miranda purposes. Mitchell ’s subsequent statements about- 3 - a crack stem in her purse were made while sh e was in custody and without the benefit of Miranda warnings. The court rule d that “[a]ll statements made by Mitchell and evidence of other

crimes found after she admitted the thefts from Wal-Mart should be excluded.” The court declined to apply the doctrine of inevitable disc overy. The court reasoned that had the defendant been arrested on some other charge, such as possession of stolen prope rty, “inevitably the contents [of her purse] would have been found during the processing.” However, the court found, she was not taken for processing on any char ge except the possession of cocaine. The

court then issued an order on April 9, 2013, granting Mitchell’s motion to suppress. On April 4, 2013, the Commonwealth filed a moti on to reconsider. The court denied that motion on April 12, 2013. The Commonwealth filed its notice of appeal four days later, on April 16, 2013, and filed a notice of filing of transcript on the same date. The Commonwealth filed its petition for appeal on April 30, 2013.

ANALYSIS

I. T IMELINESS OF THE C OMMONWEALTH ’ S A PPEAL As a preliminary matter, this Court directed the parties to brief the following question: In a case where, as here, (i) the transcript was fi led prior to the entry of the order being appealed, (ii) a notice of filing transcript was filed after the entry of the or der being appealed, and (iii) the petition for appeal was filed within 14 days of filing the post-order notice but not within 14 days of filing the pre-order transcript, has the Commonwealth filed a timely petition for appeal? Several considerations guide our reading of th e applicable statutes. First, because the right to appeal by the Commonwealth is in deroga tion of the general proh ibition against appeals by the Commonwealth, this right “must be strict ly construed against the state and limited in application to cases falling clearly within th e language of the statute.” Commonwealth v. Hawkins, 10 Va. App. 41, 44, 390 S.E.2d 3, 5 (1990) (c itations omitted). At the same time, we

will not construe a statute in a manner that “leads to absurd results.” Bowling v.- 4 - Commonwealth, 51 Va. App. 102, 109, 654 S.E.2d 354, 358 (2007) (citation omitted). In addition, “[i]t is a cardinal rule of construction th at statutes dealing with a specific subject must be construed together in order to arrive at the objectsought to be accomplished.” Prillaman v. Commonwealth, 199 Va. 401, 406, 100 S.E.2d 4, 8 (1957). The object of all of these canons of statutory construction “is to as certain and give effect to le gislative intent.” Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983). Code § 19.2-402(B) provides that “[t]he petiti on for a pretrial appeal shall be filed with the clerk of the Court of Appeals not more than 14 days after the date that the transcript . . . is

filed.” Read in isolati on, this provision would re quire us to dismiss this appeal: the transcript was filed on February 28, 2013, and the petition fo r appeal was filed in our Court on April 30, 2013, more than 14 days after the tr anscript was filed. The issue, however, is not so simple. At the time the transcript was filed, the court had not even ruled on the mo tion to suppress. The court did not rule on the suppr ession motion until April 9, 2013, mo re than 14 days after the transcript was filed. It is not clear how the Co mmonwealth can file a petit ion for appeal from a ruling that has not even occurred. Code § 19.2-405 provides an important clue co ncerning the General Assembly’s intent with regard to the filing of th e transcript. Code § 19.2-405 provide s that “[t]he transcript or written statement of facts shall be filed by the Commonwealth with the cler k of the circuit court from which the appeal is being taken, within 25 days following entry of the order of the circuit

court .” (Emphasis added). It is thus plain that the General A ssembly contemplated, logically enough, that the transcript in a pretrial appe al filed by the Commonwealth would be filed after the entry of an order granting suppre ssion. Here, the transcript was filed before the court ruled. The question is how to apply Code § 19.2-402(B) when the sequence of events contemplated by the General Assembly has not occurred. A strict , literal reading of the 14-day transcript filing- 5 - requirement of Code § 19.2-402(B) would lead to absurd results. It would serve no purpose to require the Commonwealth to go through the meani ngless exercise of filing a second, identical transcript. 1 In addition, we note the purpose behind the stri ct timelines governing pretrial appeals filed by the Commonwealth. A defendant w ho succeeds in suppressi ng evidence often is

incarcerated. Even if he is not, the pending prosecution co nstitutes an omnipresent and disruptive concern. As for the victims of crime w ho need redress, a long delay ill serves their interests. The expedited deadlin es governing pretrial appeals a llow for the prompt determination of whether a prosecution can effectively move forward or whether a defendant should be released. The point of these statutory deadlines, however, is not formality for formality’s sake. 2 Finally, the General Assembly has chosen to provide those who re present the people of the Commonwealth with a limited right to appeal. We decline to read the Code in a way that pointlessly frustrates th is policy objective.

1 It is also worth noting that a transcript is not necessary fo r the appellate court to acquire jurisdiction over an appeal. Smith v. Commonwealth, 281 Va. 464, 470, 706 S.E.2d 889, 893 (2011). It is possible that there might be no transcript at all, fo r example where a case proceeds on stipulations or turns on a pure legal question.

2 The dissent, citing cases, notes that “in countless cases, this Court has dismissed appeals for failure to comply with the st rict letter of the statutes or ru les governing appeals.” Those cases are irrelevant to the specific issu e before us. We have not interp reted appellate rules and statutes with unmitigated harshness toward either defendants or the Commonwealth. See, e.g., Whitt v. Commonwealth, 61 Va. App. 637, 739 S.E.2d 254 (2013) (holding that the harsh remedy of dismissal was unwarranted and allowing appellants to amend an assignment of error to bring it into conformity with the ru les of court); Chatman v. Co mmonwealth, 61 Va. App. 618, 739 S.E.2d 245 (2013) (refusing to dismiss an appeal becau se the appellant initially failed to set forth alongside the assignment of error the specific pl ace in the transcriptwhere the issue was preserved). Whether dismissal is warra nted, including in appeals brought by the Commonwealth, depends on the statute or rule at issue. Compare Commonwealth v. Hackett, 2008 Va. App. LEXIS 120 (Va. Ct. App. Mar. 11, 2008) (unpublished) (holding that the Commonwealth’s failure to make the certification under Code § 19.2-400 was not a jurisdictional defect requiring dismissal) , with Commonwealth v. Hawkins, 10 Va. App. 41, 390 S.E.2d 3 (1990) (dismissing appeal because outside the scope of appeals permitted by Code § 19.2-398(2))

.- 6 - We hold that a transcript is timely filed fo r purposes of Code § 19.2-405 when it is filed before the entry of the order appealed from. We further hold that when the transcript is filed early in pretrial appeals filed by the Commonwealth, the petition for appeal is timely filed if it is filed within 14 days of the fili ng of the notice of appeal. This conclusion accords with Rule 5A:8(b)(1), which provides as a defa ult rule in ordinary appeals that when the transcript is filed before the order that is being appealed, the f iling deadlines are triggere d by the filing of the notice of appeal. The Commonwealth filed its peti tion for appeal within 14 days of the filing of the notice of appeal, and, therefore, the appeal is pr operly before us. 3

II. T HE TRIAL COURT ERRED IN SUPPRESSING THE PHYSICAL EVIDENCE SEIZED FROM THE DEFENDANT

. The Commonwealth does not appeal the tria l court’s suppression of the defendant’s statements. It does, however, cont end that the trial court erred in refusing to apply the doctrine of inevitable discovery with re gard to the physical eviden ce seized from the defendant. 4 Although we

will “defer to the trial court’s factual findings unless plainly wr ong or without evidence to support them,” we will “review the ultima te question of law, the applicat ion of the inevitable discovery

3 We acknowledge that Code § 19.2-405 does not expressly address the effect of an early transcript filing. Saunders v. Commonwea lth, 12 Va. App. 154, 402 S.E.2d 708 (1991), is instructive in this regard. In Saunders, we held that a prematurely filed notice of appeal was timely. At the time Saunders was decided, our rule governing the filing of a notice of appeal did not contain the language currently fo und in Rule 5A:6(a), that “[a] notice of appeal filed after the court announces a decision or ruli ng – but before the entry of such judgment or order – is treated as filed on the date of and afte r the entry.” Saunders indicate s that premature filings do not necessarily compel dismissal, even when the langua ge of the applicable ru le does not address the impact of the premature filing. Saun ders, 12 Va. App. at 154, 402 S.E.2d at 708.

4 We note that the exclusionary rule does not apply to physical evidence discovered as a result of a Miranda violation. United States v. Patane, 542 U. S. 630, 634, 644-45 (2004) (plurality and concurring opinions). “In short, the privilege against self-incrimination is simply ‘not concerned with nontestimonial evidence. ’” Rowley v. Common wealth, 48 Va. App. 181, 183, 629 S.E.2d 188, 189 (2006) (quoting Oregon v. Elstad, 470 U.S. 298, 304 (1985)). The Commonwealth did not argue this point at tria l. Accordingly, we do not address it here.- 7 - doctrine, de novo .” Copeland v. Commonwealth, 42 Va. App. 424, 437, 592 S.E.2d 391, 397 (2004). Even though the police may have illegally seized evidence, th e suppression remedy should not be applied when that evidence would inevitably have been discove red. Nix v. Williams, 467 U.S. 431, 444 (1984). The United States Suprem e Court has explained that the premise behind the application of the exclusionary rule is that “the challe nged evidence is in some sense the product of illegal governmental activity.” Id . (quoting United States v. Crews, 445 U.S. 463, 47 1 (1980)). “If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawf ul means . . . then the deterrence rationale has

so little basis that the eviden ce should be received.” Id. When relying on the doctrine of inevitabl e discovery, the Commonwealth must show, first, a reasonable probability that the evid ence in question would have been discovered by lawful means but for the police misconduct a nd, second, that the leads making the discovery inevitable were possessed by the police at the ti me of the misconduct. Commonwealth v. Jones, 267 Va. 532, 536-37 , 593 S.E.2d 204, 207 (2004).

The trial court found th at “had [Mitchell] been arrested on some other charge such as possession of stolen property in Franklin County, and taken to the Franklin County Sheriff’s office for processing, inevitably the contents [of her purse] would have been found during the processing.” The court reasoned, however, that the inevitable di scovery rule did not appl y because Mitchell was not, in fact, arrested for posse ssion of stolen property. Under our precedent, it is “leg ally irrelevant” that Mitchell was arrested fo r a particular crime if the officer had probable cause to arrest her for a diffe rent crime. See Slayton v. Commonwealth, 41 Va. App. 101, 110, 582 S.E.2d 448, 452 (2003) . Indisputably, the officer here had probable cause to arrest Mitchell for stealin g merchandise from Wal-Mart. Probable cause to- 8 - arrest provides the officer with the authority to s earch incident to arrest. See United States v. Robinson, 414 U.S. 218, 224 (19 73). The search may take place before or after the arrest. Italiano v. Commonwealth, 214 Va. 334, 336, 200 S.E.2d 526, 528 (1973). Corporal Dameron had a right to search her as soon as he had proba ble cause to arrest. The record establishes by a preponderance of the evidence a r easonable probability th at the evidence in question would have been discovered by lawful means but for the police misconduct and that the leads making the discovery inevitable were possessed by th e police at the time of the misconduct. 5

CONCLUSION We reverse the judgment of the trial court suppressing the physical ev idence seized from the defendant, and we remand the case for further proceedings.

Reversed and remanded.

5 Neither party, either in the trial court or on appeal, made any mention of Code § 19.2-74 and what impact this statute might have on the Fourth Amendment inevitable discovery analysis in a situation like this one. Accordi ngly, we will not addr ess the issue.- 9 - Alston, J., dissenting. I respectfully dissent from the majority’s holding that the Commonwealth timely filed its petition for appeal in this case. Under the plain language of Code §§ 19.2-402(B) and -405, the Commonwealth’s filing of its peti tion for appeal was not timely. 6 Code § 19.2-402(B) sets forth certain proce dural requirements that the Commonwealth’s petition for a pretrial appeal must meet . It states, in pertinent part: The petition for a pretrial appeal sh all be filed with the clerk of the Court of Appeals not more than 14 days after the date that the transcript or written statement of facts is filed, or if there are objections thereto, within 14 da ys after the judge signs the transcript or written statement. Code § 19.2-402(B). In order for this Court to acquire jurisdiction over a criminal appeal, the petitioner must file a timel y petition. Long v. Commonweal th, 7 Va. App. 503, 506, 375 S.E.2d 368, 369 (1988) ( en banc ) (decided in the context of the 40-day limit for filing a petition for appeal under Rule 5A:12(a)). Additionally, Code § 19.2-405 sets forth ce rtain requirements for the filing of the transcript or written statement of facts in a pretri al appeal. It provides, in pertinent part, “The transcript or written statement of facts shall be filed by the Commonwealth with the clerk of the circuit court from which the appeal is being taken, within 25 days following entry of the order of the circuit court.” Code § 19.2-405. To determine whether the Commonwealth’s petition for appeal was timely filed in this case, we must interpret Code §§ 19.2-402(B) an d -405. “The primary objective of statutory construction is to determine legislative intent. In determining that intent, words are to be given their ordinary meaning, unless it is apparent that the legislative in tent is otherwise.” Phelps v.

6 Because I would hold that the Commonwealth’s petition for appeal was not timely filed, I would not reach the merits of this case. As a result, I express no opinion on the majority’s holding in Part II of its analysis.- 10 - Commonwealth, 275 Va. 139, 142, 654 S.E.2d 926, 927 ( 2008) (citations omitted). “We must also assume that the legislature chose, with care, the words it used when it enacted the relevant statute.” Barr v. Town & Country Props., Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990). Virginia appellate courts have repeatedly . . . stated the principl es of statutory construction that apply when a statute . . . is cl ear and unambiguous. In such circumstances, a court may look only to the words of the statute to determine its meaning. The inten tion of the legislature must be determined from those words, unl ess a literal construction would result in a manifest absurdity. T hus, when the legislature has used words of a clear and definite m eaning, the courts cannot place on them a construction that amounts to holding that the legislature did not intend what it actually has expressed. Hubbard v. Henrico Ltd. P’ship, 255 Va . 335, 339, 497 S.E.2d 335, 337 (1998) (citations omitted), quoted in Paugh v. Henrico Area Me ntal Health & Dev. Servs., 286 Va. 85, 89, 743 S.E.2d 277, 279 (2013). In addition, as the majority correctly states, because Commonwealth’s pretrial appeals are “in derogation of the general constitutional proh ibition against appeals by the Commonwealth,” the statutes governing such appeals “‘must be strictly construed against the state and limited in application to cases falling clearly within the language of th e statute.’” Commonwealth v. Hawkins, 10 Va. App. 41, 44, 390 S.E.2d 3, 5 (1990) (quoting Crews v. Commonwealth, 3 Va. App. 531, 536, 352 S.E.2d 1, 3 (1987)). However, while the majority notes this principle, it does not apply it in interpreti ng Code §§ 19.2-402(B) and -405. In my view, the concept of strict construction imposes a duty to limit or restrict judicial interpretation. Strict construction requires this Court to apply the text of a statute only as it is written. Once we identify a clear meaning of the te xt of the statute, no further analysis of the statute under consideration is required. Thus, we are bound to avoid drawing inferences from the statute and focus only on the text itself.- 11 - Applying these principles, I would hold that the Commonwealth’s peti tion for appeal was not timely filed under Code § 19.2-402(B). In the cas e at bar, the transcript of the hearing on the motion to suppress was filed on February 28, 2013. The Commonwealth did not file its petition for appeal until April 30, 2013, well beyond fourteen days after the transcript was filed. The plain language of Code § 19.2-402(B) provides that the petition for appeal “shall be filed with the clerk of the Court of Appeals not more than 14 days after the date that the transcript or

written statement of facts is filed.” The statute is unambiguous. It also makes no exception for a situation where the transcript is filed before the entry of the trial court’s order. Thus, under the plain language of the statute and construing the statute strictly against the Commonwealth, as we must, I would hold that the petition for appeal mustbe filed no more than fourteen days after the date that the transcript or written statem ent of facts is filed, without exception. The majority declines to interpret the statute according to its plain language because doing so, the majority believes, w ould result in an absurdity. I di sagree. Citing to the general principle that a court should not construe a statute in a manner that “‘leads to absurd results,’” Bowling v. Commonwealth, 51 Va. App. 102, 109, 654 S.E.2d 354, 358 (2007) (quoting Auer v. Commonwealth, 46 Va. App. 637, 651, 621 S.E.2d 140, 147 (2005)), the majority cobbles together a very cogent and sound process to allow the Commonwealth to save its appeal. Respectfully, however, I suggest th at “absurdity” does not inquir e as to what may be more efficient or productive; rath er, our goal in construing statutes is to “ascertain and give effect to legislative intent.” Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983). I submit that the legislative intent of Code § 19.2-398 was to give the Commonwealth the decidedly unique ability to app eal certain trial court rulings in a criminal case, and, if the Commonwealth fulfills its obligations under the statutes governing Comm onwealth’s pretrial appeals, there is no absurdity in the process created by the legislature.- 12 - More specifically, if the Co mmonwealth had merely complied with the statutory scheme created by the General Assembly to govern Commonw ealth’s pretrial appeal s in the instant case,

the Commonwealth would have been able to file its petition for appeal in compliance with the statutes, and no absurdity would result. As noted earlier, Code § 19.2-405 provides, “The transcript or written statement of facts shall be filed by the Commonwealth with the clerk of the circuit court from which the appeal is being taken, within 25 days following entry of the order of the circuit court.” (Emphasis added). Thus, the plain language of C ode § 19.2-405 provides that the transcript should be filed after the trial court enters its order. See Merriam-Webster’s Collegiate Dictionary 486 (11th e d.) (defining “follow” as “to go, proceed or come after” and “following” as “subsequent to”). Code § 19.2-405 also places the burden on the Commonwealth to file the transcript or written statement of facts. With this duty comes the responsibility to ensure that the transcript is timely filed, in accordance with Code § 19.2-405. 7 I appreciate that the Commonwealth finds itself in a difficult position in this case because it failed to comply with Code § 19.2-405, and, ther efore, the fourteen-day period for filing the petition for appeal found in Code § 19.2-402(B) ran before the trial court entered its order.

7 This Court has often emphasized the duty of appellants to comply with all of the requirements for the filing of the transcript, even in difficult circumstances, outside the context of Commonwealth’s pretrial appeals. S ee, e.g., Friel v. Commonwealth, No. 1346-10-2, 2011 Va. App. LEXIS 217 (Va. Ct. App. June 28, 2011) (a ffirming appellant’s c onviction pursuant to Rule 5A:8 where appellant failed to file a complete transcript because, “whether due to human error or equipment failure, a portion of appellant’s trial was not recorded and, thus, could not be transcribed by the court reporter, ” and “[a]lthough nothing in the record indicat e[d] this failure was attributable to appellant, he nevertheless bor e the burden of presenting on appeal a record of the trial court proceedings sufficiently complete to allow [the Court] to determine whether the trial court erred in the manner he clai ms”); Doggett v. Commonwealth, No. 1522-04-2, 2005 Va. App. LEXIS 405 (Va. Ct. App. Oct. 11, 2005) (a ffirming appellant’s c onviction pursuant to Rule 5A:8 where appellant failed to file a complete transcript because “[d]ue to a malfunctioning recording device, the test imony of [three witnesses] were not recorded and are therefore not in the record,” and “[a]lthough appellant was not responsible for the tape malfunction, he is responsible for providing the Court with a narrative statement or st atement of facts in the event a complete transcript is unavailable”).- 13 - However, “difficulty is not absurdity.” Bonner v. Commonwealth, 62 Va. App. 206, 216, 745 S.E.2d 162, 167 (2013) ( en banc ). Again, if the Commonwealth had merely complied with Code § 19.2-405, the difficulty in this case would have ne ver arisen. And in my view, difficulty does not provide legal justification for intervention. The role of the judi ciary in construing statutes is to ascertain and apply legislativ e intent, not to rewrite a statut e through judicial interpretation. Moreover, the concept of “unmitigated harshness” re ferenced by the majority must be viewed in the eye of the beholder, and I take no position on it. I am simply suggesting that the Court follow the well-established rule to interpret the statutes according to their plain and unambiguous language. Furthermore, and with respect, the majority makes the bold assertion, without citation to any authority whatsoever, that a transcript is timely filed for purposes of Code § 19.2-405 when it is filed before the entry of the order appeal ed from, a holding that directly contravenes the plain language of Code § 19.2-405. 8 In passing, the majority acknowledges the Commonwealth’s responsibility fo r filing the transcript but does not hold it accountable for the existence of the filed transcript in this case; in stead, the majority simply notes that the record

does not indicate how the tran script was filed. Simply acknowledging the Commonwealth’s statutory duties for filing the transcri pt without holding the Commonwealth responsible for the filing of the transcript in th is case abrogates the Commonw ealth’s express obligations under Code § 19.2-405. The General Assembly could have included a pr ovision in the nature of a savings clause in Code § 19.2-402(B) that allowed the fourteen-d ay time period to run from the filing of the notice of appeal in cases where the transcript is file d before the entry of the trial court’s order. It

8 In addition, the majority does not addr ess Code § 19.2-405’s requirement that the Commonwealth file the transcript. In this case, the reco rd does not reveal w ho filed the transcript on February 28, 2013.- 14 - did not. Courts cannot “add language to the stat ute the General Assembly has not seen fit to include.” Holsapple v. Commonwealt h, 266 Va. 593, 599, 587 S.E.2d 561, 564-65 (2003). “[N]or are they ‘permitted to accomplish the same result by judicial interpretation.’” Burlile v. Commonwealth, 261 Va. 501, 511, 544 S.E.2d 360, 365 (2001) (quoting Harbor Cruises, Inc. v. Commonwealth, 217 Va. 458, 461, 230 S.E.2d 248, 250 (1976)).

The Commonwealth should not benefit from its failure to comply with Code § 19.2-405 through a novel interpretation of th e statutory scheme that renders the transcript and petition for appeal timely filed in this case. There is no absurdity in applying the plain language of Code § 19.2-402(B) when the Commonwealth complies with allof the statutory provisions governing Commonwealth’s pretrial appeals, including Code § 19.2-405. To suggest otherwise would be to suggest that the particularized and unambiguous language of the statute was meant to mean something other than what th e legislature prescribed. Finally, I note that in a plethora of cases, th is Court has dismissed appeals for failure to comply with the strict letter of the statutes or rules governing appeals. See, e.g., Evans v. Commonwealth, 61 Va. App. 339, 735 S.E.2d 252 ( 2012) (dismissing appellant’s appeal pursuant to Rule 5A:6 where appellant attempted to appeal his perjury conviction but identified the conviction he was appealing by the wrong case file number); Woody v. Commonwealth, 53 Va. App. 188, 670 S.E.2d 39 (2008) (d ismissing appellant’s appeal where he was convicted of violating a County DUI ordinance but filed a notice of appeal on November 9, 2007, naming the Commonwealth of Virginia as appellee, not the County, and the trial court entered an order on October 30, 2008, in response to an order from this Court, clarifying that appellant was convicted of violating the County DUI ordinance, not Code § 18.2-266) 9 ; Haywood v. Commonwealth, 15

9 This Court also dismissed the same appellan t’s appeal when he attempted to appeal the trial court’s October 30, 2008 order, holding that it was not the final appealab le conviction order in the case. Woody v. Cnty. of Amhers t, No. 2909-08-3, 2010 Va. App. LEXIS 286 (Va. Ct. App. July 20, 2010).- 15 - Va. App. 297, 423 S.E.2d 202 (1992) ( en banc ) (dismissing the petitioner’s petition for appeal pursuant to Rule 5A:12 wher e the petition was due on Decem ber 2, 1991, petitioner mailed the petition by priority mail on November 27, 1991, the United States Postal Service erroneously delivered the petition to the United States Court of Appeals for the Fourth Circuit, and this Court’s clerk’s office received the petiti on on December 3, 1991); Anderson v. Commonwealth, 13 Va. App. 506, 413 S.E.2d 75 (1992) (dismissing an appeal pursuant to Rule 5A:8 because the written statement of facts, endorsed by the Comm onwealth’s attorney and appellant’s counsel and signed by the trial judge, did not contain a notation showing that it was filed in the office of the clerk of the trial court within fifty-five days after entry of judgment); Long, 7 Va. App. 503, 375 S.E.2d 368 (dismissing petitioner’s petition for appeal because it was mailed by first class mail on the day it was due, rather than by registered or certified mail). Here, the Commonwealth failed to comply with Code §§ 19.2-402(B) and -405. I would not construe these statutes other than by their plain language in order to render the Commonwealth’s petition for appeal timely filed. Accordingly, I dissent from the majority’s holding that the Commonwealth’s petiti on for appeal was timely filed.