COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Chafin and Senior Judge Clements

Argued at Lexington, Virginia

DOMINIQUE NYREE WATERS

MEMORANDUM OPINION* BY

v. Record No. 1092-17-3 JUDGE JEAN HARRISON CLEMENTS

JULY 3, 2018

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE

Joseph W. Milam, Jr., Judge

M. Lee Smallwood, II, Deputy Public Defender, for appellant.

Christopher P. Schandevel, Assistant Attorney General (Mark R. 

Herring, Attorney General, on brief), for appellee.

Dominique Nyree Waters, appellant, was convicted following a jury trial of robbery and 

use of a firearm during the commission of a felony. On appeal, appellant contends that the trial 

court erred by 1) finding that he failed to perfect a timely appeal from the decision of the juvenile 

and domestic relations district court to transfer his case to the circuit court, 2) failing to “quash 

the indictments in this case when those indictments had been obtained prior to the entry of an 

order authorizing the Commonwealth to obtain indictments against” him, and 3) failing to “quash 

the indictments in this case when those indictments were sought from and returned by a grand 

jury whose members were not statutorily permitted to serve as grand jurors due to their prior 

service on a grand jury that had been discharged.” Finding no error in the trial court’s decision, 

we affirm appellant’s convictions.

 

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

UNPUBLISHED
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BACKGROUND

We recite only those facts necessary to resolve the issues presented on appeal. On 

February 6, 2017, the Danville Juvenile and Domestic Relations District Court (the JDR court) 

held a transfer hearing concerning the felony charges against appellant. After hearing the 

evidence and argument, the JDR court transferred appellant’s case to the circuit court pursuant to 

Code § 16.1-269.1(A). The JDR court file was transmitted to the circuit court on February 7, 

2017. On March 8, 2017, the parties appeared before the trial court on appellant’s attempted

appeal of the transfer. The trial court observed that the paperwork received from the JDR court 

did not include a notice of appeal of the transfer order. Appellant’s counsel explained that “as is 

practice in the juvenile court,” he “announced [appellant’s] appeal of [the transfer] decision” in 

open court. After the JDR judge “acknowledged” the intent to appeal, counsel “considered the 

. . . matter to have been appealed.” Although not made a part of the record, appellant produced, 

and the trial court viewed, a notice of appeal signed by appellant’s counsel on March 7, 2017. 

The document had “a date of appeal of 2-6-2017.”

The clerk of the JDR court testified that she prepared the notice of appeal on March 7, 

2017. She confirmed that “the general practice” is for the clerk in the JDR courtroom to prepare

the notice of appeal and that the defendant or defendant’s counsel then signs it. She reasoned 

that, in this case, “[t]he clerk just failed to process the paperwork.” Although it was dated 

February 6, 2017, the notice of appeal was not prepared, signed, or filed until March 7, 2017.

The trial court found that it lacked jurisdiction to hear the appeal because the notice of 

appeal was not timely filed. The trial court explained:

Section 16.1-269.4 states that if the juvenile court transfers the 

case pursuant to subsection A of 16.1-269.1, the juvenile may 

within ten days of the juvenile court’s final decision file a notice of 

appeal to the appropriate circuit court. That was not done here. It 

may have certainly been the intention of the defendant. It may 

very well have been the understanding of the Commonwealth. 
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And it certainly sounds like that was the understanding of the 

[c]ourt . . . . In this case, the notice of appeal, by the testimony 

today, was prepared one month after the hearing, not within ten 

days..

The trial court further noted that the JDR court speaks through its orders. The trial court 

recognized that the JDR court could not make a nunc pro tunc finding or “create something or 

decide something as a clerical error and . . . create a document that was not created initially.” 

The trial court subsequently found that pursuant to Code § 16.1-269.6, there was substantial 

compliance with Code § 16.1-269.1, and it directed the clerk to prepare an order allowing the 

Commonwealth to seek indictments.

ANALYSIS

I.

Appellant contends his oral notice was sufficient to perfect his appeal of the transfer 

order because the JDR court acknowledged his desire to appeal. He asserts that a written notice 

of appeal was prepared and that it was backdated to February 6, 2017, although he concedes that 

it was not prepared or signed until March 7, 2017.

Code § 16.1-269.4 states:

If the juvenile court transfers the case pursuant to subsection A of 

§ 16.1-269.1, the juvenile may, within ten days after the juvenile 

court’s final decision, file a notice of appeal of the decision to the 

appropriate circuit court. A copy of the notice shall be furnished at 

the same time to the attorney for the Commonwealth.

Rule 8:20, which governs appeals from the juvenile and domestic relations district courts, 

provides as follows: “All appeals shall be noted in writing. An appeal is noted only upon timely 

receipt in the clerk’s office of the writing. An appeal may be noted by a party or by the attorney for 

such party.”

Here, appellant did not comply with the requirement that a written notice of appeal had to be 

filed within ten days of the JDR court’s decision. “It is fundamental that the appealing party has the 
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burden of perfecting his appeal.” Sharma v. Sharma, 46 Va. App. 584, 590, 620 S.E.2d 553, 556

(2005) (quoting Commonwealth v. Walker, 253 Va. 319, 322, 485 S.E.2d 134, 136 (1997)).

Appellant, acknowledging that Rule 8:20 “seems to suggest that the notice must be filed in 

writing by the juvenile or his counsel,” argues that “[t]here is a conflict in the Rules” because 

Rule 3A:19 “indicates that the accused or his counsel shall advise the judge or clerk within ten days 

after conviction, of his intention to appeal.” He asserts that under Rule 3A:19 it was permissible 

merely to orally advise the JDR court of his desire to appeal the transfer decision.

Appellant’s reliance on Rule 3A:19 and its alleged conflict with Rule 8:20 is misplaced. 

Rule 3A:19 addresses only appeals from “convictions” and specifically provides that the Rules in 

Section 3A do not “govern . . . proceedings concerning a child in a juvenile and domestic relations 

district court . . . .” Appellant, a juvenile, did not attempt to appeal from a JDR court conviction 

order, and Rule 3A:19 did not govern his attempt to appeal the transfer decision.

Rule 8:20 specifically requires that appeals from the juvenile and domestic relations 

district courts be noted in writing, and Code § 16.1-269.4 requires appeals from JDR court 

transfer orders be filed within ten days of the order. Appellant concedes that no written notice of 

appeal was filed with the clerk within the prescribed time period. He asserts that “the form 

utilized in district courts for appeal . . . is entirely controlled by the clerk of those district courts 

and cannot be completed by counsel or anyone other than a clerk.” However, as noted by the 

JDR court clerk, the notice, once prepared, is then signed by “[e]ither the attorney or the 

defendant.” Appellant’s counsel concedes that he did not sign the notice until March 7, 2017. In 

Virginia, “one who takes the shortcut of asking the clerk’s employees to examine the record for 

him relies on the response at his peril.” School Bd. v. Caudill Rowlett Scott, Inc., 237 Va. 550, 

556, 379 S.E.2d 319, 322 (1989); see also Bendele v. Commonwealth, 29 Va. App. 395, 399, 

512 S.E.2d 827, 829 (1999). Here, appellant failed to assure that the necessary form was 
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completed and signed within the required time period. Accordingly, the trial court did not err in 

finding that appellant failed to perfect an appeal of the transfer order.

II.

At the conclusion of the March 8, 2017 hearing, the trial court advised the 

Commonwealth that it could seek indictments against appellant. The order memorializing the 

court’s ruling was not entered until April 6, 2017. Nevertheless, the Commonwealth obtained 

indictments on March 14, 2017. Appellant argues that the trial court erred by failing to “quash 

the indictments in this case when those indictments had been obtained prior to the entry of an 

order authorizing the Commonwealth to obtain indictments against” him.

Code § 16.1-269.6(B), which creates a procedure for either the juvenile or the 

Commonwealth to appeal a transfer decision, requires the circuit court:

(i) if either the juvenile or the attorney for the Commonwealth has 

appealed the transfer decision, to examine all such papers, reports 

and orders and conduct a hearing to take further evidence on the 

issue of transfer, to determine if there has been substantial 

compliance with subsection A of § 16.1-269.1, but without 

redetermining whether the juvenile court had sufficient evidence to 

find probable cause; and (ii) enter an order either remanding the 

case to the juvenile court or advising the attorney for the 

Commonwealth that he may seek an indictment.

We have previously held that “[b]y its own terms, this provision only applies when either 

party appeals a transfer decision.” Lampkins v. Commonwealth, 44 Va. App. 709, 718, 607 

S.E.2d 722, 727 (2005) (emphasis omitted). As noted above, appellant failed to perfect his 

appeal of the transfer decision. Accordingly, the provision does not apply in this case.

In a June 26, 2009 opinion, the Attorney General of Virginia opined that “a circuit court 

is not required to enter an enabling order where the transfer decision of the juvenile court has not 

been appealed” and that “a Commonwealth’s attorney may seek an indictment after the period 
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for an appeal has expired, provided no appeal has been noted.” 2009 Op. Va. Att’y Gen. 53 (Jun. 

26, 2009).

“While an Opinion of the Attorney General is not binding on this Court, it is ‘entitled to 

due consideration.’” Rudolph v. City of Newport News, 67 Va. App. 140, 145, 793 S.E.2d 831, 

834 (2016) (quoting Beck v. Shelton, 267 Va. 482, 492, 593 S.E.2d 195, 200 (2004)). “This is 

particularly so when the General Assembly has known of the Attorney General’s Opinion . . . 

and has done nothing to change it.” Id. (quoting Beck, 267 Va. at 492, 593 S.E.2d at 200). “The 

legislature is presumed to have had knowledge of the Attorney General’s interpretation of the 

statutes, and its failure to make corrective amendments evinces legislative acquiescence in the 

Attorney General’s view.” Beck, 267 Va. at 492, 593 S.E.2d at 200 (quoting Browning-Ferris, 

Inc. v. Commonwealth, 225 Va. 157, 161, 300 S.E.2d 603, 605-06 (1983)).

“The primary objective of statutory construction is to ascertain and give effect to 

legislative intent. The plain, obvious, and rational meaning of a statute is to be preferred over 

any curious, narrow, or strained construction.” Turner v. Commonwealth, 67 Va. App. 46, 63, 

792 S.E.2d 299, 307 (2016) (quoting Commonwealth v. Zamani, 256 Va. 391, 395, 507 S.E.2d 

608, 609 (1998)). Consequently, courts apply the plain meaning of a statute “unless the terms 

are ambiguous or applying the plain language would lead to an absurd result.” Tisdale v. 

Commonwealth, 65 Va. App. 478, 483, 778 S.E.2d 554, 557 (2015) (quoting Baker v. 

Commonwealth, 284 Va. 572, 576, 733 S.E.2d 642, 644 (2012)).

Prior to a 1996 Amendment, Code § 16.1-269.6(B) provided that:

The circuit court shall, within a reasonable time after receipt of the 

case from the juvenile court, (i) examine all such papers, reports 

and orders; (ii) if either the juvenile or the attorney for the 

Commonwealth has appealed the transfer decision, conduct a 

hearing to take further evidence on the issue of transfer, to 

determine if there has been substantial compliance with [Code] 

§ 16.1-269.1, but without redetermining whether the juvenile court 

had sufficient evidence to find probable cause; and (iii) enter an 
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order either remanding the case to the juvenile court or advising 

the attorney for the Commonwealth that he may seek an 

indictment.

Interpreting the pre-amendment statutory language after the 1996 amendments went into 

effect, the Supreme Court noted that the former statute required the examination of the papers in 

every case, “even if neither party filed an appeal to the juvenile court’s transfer order.” Jackson 

v. Commonwealth, 255 Va. 625, 642, 499 S.E.2d 538, 549 (1998). The Court also observed, 

however, that “[t]he statute presently in effect does not require the review if the transfer decision 

is not appealed.” Id. at 642 n.4, 499 S.E.2d at 549 n.4 (citing 1996 Va. Acts ch. 755, at 1338).

The 1996 amendment evinced a legislative intent that the review requirement applies 

only in cases where the transfer decision has been appealed. See 1996 Va. Acts ch. 755, at 

1338-1339. We agree with the Attorney General’s opinion that just as the review is no longer 

required in cases that are not appealed, the entry of the enabling order before the Commonwealth 

may seek indictments is also no longer necessary in cases that have not been appealed, and we so 

hold.

Here, although the trial court found substantial compliance with subsection A of Code 

§ 16.1-269.1 and advised the attorney for the Commonwealth that he could seek an indictment, 

the trial court was not required to do so as the transfer decision had not been appealed. See 2009 

Op. Va. Att’y Gen. 53 (Jun. 26, 2009). Under that circumstance, the Commonwealth was at 

liberty to seek the indictments once the period for appeal had expired, which, in this case, was 

well before the Commonwealth obtained the indictments. Therefore, we find no error with the 

trial court’s denial of appellant’s motion to quash the indictments because they were obtained 

before the entry of the unnecessary April 6, 2017 enabling order.
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III.

Appellant argues that the March 17, 2017 grand jury which handed down the indictments 

“had improperly been convened utilizing the personnel from a grand jury which was convened 

and discharged on February 27, 2017.” He contends that the trial court erred by denying his 

second motion to quash the indictments on that basis.

Pursuant to Code § 19.2-194, which provides when and how grand jurors are to be 

selected, between five and nine grand jurors shall be summoned to appear to serve as grand 

jurors. Furthermore, “[t]hose persons who are to be summoned shall be randomly selected but 

no such person shall be required to appear more than once until all the others have been 

summoned once, nor more than twice until the others have been twice summoned, and so on.” 

Code § 19.2-194. Under Code § 19.2-193, “[w]henever a regular grand jury has been 

discharged, the court, during the term, may impanel another regular grand jury.”

Appellant refers to a February 27, 2017 grand jury order entered by the trial court on 

April 25, 2017. The order is not part of the record on appeal, but it was discussed in detail at the 

May 1, 2017 hearing on appellant’s motion to quash. The order included the names of the grand 

jurors present at the February 27, 2017 grand jury session. Appellant represented to the trial 

court that on the last page of that order the court indicated that “the grand jury having nothing 

further to present was discharged.” The March 14, 2017 grand jury was comprised of the same 

panel as the February 27, 2017 grand jury. Appellant argues that because the grand jury was 

“discharged” following the February 27 session, the March 14 session should have been 

comprised of a different group of jurors under Code § 19.2-194 and that, because it was not, the 

trial court erred by not quashing the indictments.

The trial court reviewed the February 27, 2017 and March 14, 2017 grand jury orders. 

The trial court explained that when it stated in its order that the grand jury was “discharged,” it 
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meant that the grand jurors were discharged for the day, not for the term. The trial court stated 

that it informed the grand jury that they were the members of the grand jury for the entire term 

through April. The trial court told appellant’s counsel, 

I mean I realize the order uses that term discharge but you know, 

words can have more than one meaning and, . . . the order when it 

uses the term discharge means for that day, and they were paid 

their per diem for that day and they came back in when they were 

asked to and, and the same thing happened at the end of that day.

Appellant emphasizes that “[a] court speaks through its orders and those orders are 

presumed to accurately reflect what transpired.” Hodgins v. Commonwealth, 61 Va. App. 102, 

108, 733 S.E.2d 678, 681 (2012) (quoting McBride v. Commonwealth, 24 Va. App. 30, 35, 480 

S.E.2d 126, 128 (1997)). He reasons that the “grand jury order clearly discharged the grand 

jury” and that “[o]nce discharge took place, it was wholly improper to use the same panel of 

grand jurors to indict other persons including [appellant] on March 14, 2017.” However, 

“[a]nother well-established principle in our jurisprudence is that circuit courts have the authority 

to interpret their own orders.” Roe v. Commonwealth, 271 Va. 453, 457, 628 S.E.2d 526, 528

(2006). “Although trial courts have discretion to interpret their own orders, that discretion must 

be exercised reasonably and not arbitrarily or capriciously.” Smoot v. Commonwealth, 37 

Va. App. 495, 500, 559 S.E.2d 409, 412 (2002). “We apply an abuse of discretion standard in 

determining whether the circuit court’s interpretation of its order is reasonable.” Id. Here, the 

trial court, after listening to an audio recording from the end of the February 27, 2017 grand jury

session, concluded that the court merely discharged the grand jury for the day and not for the rest 

of the term. Applying the governing principles, we hold that the trial court’s interpretation of the 

February 27, 2017 order is reasonable and find no abuse of discretion with its determination that 

the grand jury had not been discharged for the term. Therefore, the same grand jury permissibly 

handed down the indictments against appellant.
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Furthermore, Code § 19.2-194 states that each year, the judge or judges of the circuit 

court select sixty to one hundred twenty qualified people to be grand jurors for the next twelve 

months. Although appellant emphasizes that Code § 19.2-194 states that no person shall appear 

more than once for grand jury service until all of the others have been summoned, the statute also 

expressly provides:

The clerk, not more than 20 days before the commencement of 

each term of his court at which a regular grand jury is required, 

shall issue a venire facias to the sheriff of his county or city, 

commanding him to summon not less than five nor more than nine 

of the persons selected as aforesaid (the number to be designated 

by the judge of the court by an order entered of record) to be 

named in the writ to appear on the first day of the court to serve as 

grand jurors.

Code § 19.2-194 supports the trial court’s interpretation of “discharge” because the 

statute requires the clerk to choose the five to nine people randomly to serve as grand jurors for 

the term, not one day. Contrary to appellant’s arguments, the trial court did not abuse its 

discretion when it interpreted its order to state that the grand jury members were discharged only 

for the day, not for the term. Accordingly, we find no error with the trial court’s denial of 

appellant’s motion to quash the indictments.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s decision and appellant’s 

convictions.

Affirmed.