COURT OF APPEALS OF VIRGINIA

Present: Senior Judges Annunziata, Frank and Petty

GARRY LEE HAWLEY MEMORANDUM OPINION ∗ v. Record No. 0463

- 22

- 3 PER CURIAM O CTOBER 18, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY Thomas J. Wilson, IV , Judge Designate ( David Samir Saliba ; Elledge & Associates, PC, on brief ) , for appellant. Appellant submitting on brief. ( Jason S. Miyares, Attorney General; Ken J

. Baldassari , Assistant Attorney General , on brief ) , for appellee.

Counsel for Garry Lee Hawley filed a brief on his behalf accompanied by a motion for leave to withdraw in accordance with Anders v. California , 386 U.S. 738, 744 (1967). A copy of that brief has been furnished to Hawley with sufficient time for h im to raise any matter that he chooses. Hawley has not fi led any pro se supplemental pleadings. The trial court convicted Hawley of malicious wounding, embezzlement, and eluding the police and sentenced him to a total of fifteen years’ imprisonment, with seven years suspended. On appeal, Hawley argues that his “trial counsel was ineffective.” He also asserts that the trial court erred by denying his motion to strike the evidence as to the malicious wounding charge because there was no evidence of malicious intent. In addition, Hawley contends that the trial

co urt erred by failing to consider the presentence report before imposing his sentence. We have reviewed the parties’ pleadings, fully examined the proceedings, and determined the case to be

∗ Pursuant to Code § 17.1

- 413, t his opinion is not designated for publication.UNPUBLISHED- 2

- wholly without merit as set forth below . Thus, the panel unanimou sly holds that oral argument is
unnecessary
. See Code § 17.1

- 403(ii)(a); Rule 5A:27(a).
BACKGROUND “In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party [below].” Poole v. Commonwealth , 73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth , 295 V a. 469, 472 (2018)).
On May 20, 2018, Hughes “H.C.” Phillips, Jr

. , was in his backyard when Hawley stood in the middle of “the farm yard

. ” Phillips saw Hawley spread his arms “ out to both sides of him. ” Hawley eventually got in his vehicle , but “ stopped his car at [Phillips’] driveway entrance , . . . rolled down the window on the passenger side and just stared at [Phillips] out his windo w.” Phillips , thinking that Hawley “wanted to talk,” approached Hawley’s vehicle. Hawley “ jumped ” out of his vehicle a nd took a baseball bat out of the back seat. Hawley “ made a gesture with the bat like he was going to hit [Phillips] with it. ” Hawley then put the bat down , and Phillips “ proceeded to the rear of the car [and they] started talking. ” When the conversation ended, Phillips turned and started walking to his house. The next thi ng Phillips remembered was “waking up on the ground” ; he was lying “face down” and “could see blood.” Phillips tried to get up twice , but Hawley hit him again, causing him to fall back to the ground. Phillips thought Hawley was going to kill him. Phillips lost consciousness for a short period, and when he awakened, he went to his house and his wife called 911. Although Hawley claimed Phillips hit him first , Phillips denie d ever attempting to swing at Hawley. Deputy Carmen Paniagua , the responding office r , did not see any injuries to Hawley when he made contact with him. Following the attack, Phillips required surgery “ for issues related to [his] nose and septum and

. . . neck .” Dr. Danny Neal, Phillips’ surgeon, testified that Phillips had several contusions and lacerations on his face, and two fractures in his nose, as well as a deviated septum. Dr. Neal- 3

- testified that “to have the nasal bones broken in several pieces i s usually consistent with something more than just a fist striking an individual.” Phillips also had significant bruising and injuries to his neck. Dr. Neal did not think that “the area of bruising on his neck

. . . could have come from a single punch ” because of the extensive bleeding

. Dr. Neal concluded that Phillips’ injuries were consistent with blunt force trauma , consistent with a heavy object hitting Phillips

. Dr. Neal likened Phillips’ injuries to those caused by “ a high speed motor vehi cle crash before the advent o f shoulder belts and airbags. ” Hawley was arrested for malicious wounding. Hawley admitted to his pre

- trial supervisor that he “g ot into a fight with a man and whooped his ass and he didn ’ t like it. ” As a part of pre

- trial

su pervision, Hawley was required to have a GPS monitor on his vehicle

. On August 4, 2018, Hawley cut off his GPS and threw it over a bridge. The GPS was valued at $2,149. On November 10, 2018, Officer Spencer Morrison testified that he was conducting a stationary radar, when he detected Hawley speeding. Officer Morrison pursued Hawley with his emergency lights activated. Hawley accelerated, eventually reaching a speed of over 100 miles per hou r. Hawley also drove through several red lights and passed several vehicles over solid yellow lines

. Hawley ultimately wrecked his car and sustained a number of injuries

. On August 29, 2019, the parties convened for a bench trial on Hawley’s charges of

m alicious wounding, embezzlement, and felony eluding

. At the start of the hearing , Hawley ple a d ed guilty to the embezzlement count. 1 At the close of the Commonwealth’s evidence, Hawley moved to strike the malicious wounding count. Hawley argued that th e Commonwealth failed to establish malice because there was no evidence that he used a bat or another type of weapon and that Phi l lips’ injuries could have been caused by a fall. The trial court overruled the motion. Hawley testified that Phil l ips hit hi m first, knocking him to the ground, and “stomp [ed] on

1 The embezzlement charge arose from Hawley’s destruction of the GPS monitor.- 4

- [his] hands , ” causing broken bones . Hawley also testified that he “never had a bat or any club or a weapon of any type.” Hawley admitted that he hit Phil l ips “about four or five times,” but stated th at it was “no big deal.” Hawley did not think he hurt Phi l lips, because when Hawley left the scene, Phillips “ was still standing there running his mouth .” After considering the evidence and the parties’ arguments, the trial court convicted Hawley of malicious wounding , eluding , and embezzlement

. On August 24, 2020, the parties convened for sentencing. The trial court made the presentence report “ part of the reco rd. ” The trial court sentenced Hawley to a total sentence of fifteen years, with seven years suspended. Hawley noted this appeal.
ANALYSIS
I. Ineffective Assistance of Counsel On appeal, Hawley attempts to allege a claim of ineffective assistance of trial counsel

. “[C]laims of ineffective assistance of counsel .

. . are not reviewable on direct appeal, but must be raised in a petition for a writ of habeas corpus after exhaustion of all appellate remedies.” McGinnis v. Commonwealth , 296 Va. 489, 495 n.1 (2018) (citing Sigmon v. Dir. of the Dep’t of Corr

. , 285 Va.
5 2 6, 533 (2013)); accord Kenner v. Commonwealth , 71 Va. App. 279, 297 (2019) , aff’d , 299 Va. 14 (2021)

. Thus, the claim presented in this assignment of error is not properly before us for review.
II. Unpreserved C laims Hawley challenges his convictions by arguing that he had no Miranda warnings issued to him; he was not allowed to present evidence of passing a polygraph e xamination as a defense in his case; he thought he only owed $500 for the GPS monitor and paid $200 toward that although h e entered a plea of guilty to the embezzlement/theft of the device.- 5

- Hawley also alleges that “the trial court conducted a sentencing hearing without the benefit of a presentencing report.” 2 Hawley , however, admits that he did not preserve his argument s for appeal. “No ruling of the trial court .

. . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable this Court to attain the ends of justice.” Rule 5A:18. “Rule 5A:18 requires a litiga nt to make timely and specific objections, so that the trial court has ‘an opportunity to rule intelligently on the issues presented, thus avoiding unnecessary appeals and reversals.’” Brown v. Commonwealth , 279 Va. 210, 217 (2010) (quoting West v. Common wealth , 43 Va. App. 327, 337 (2004)). “Specificity and timeliness undergird the contemporaneous

- objection rule [and] animate its highly practical purpose.” Bethea v. Commonwealth , 297 Va. 730, 743 (2019). “Not just any objection will do. It must be bot h specific and timely

— so that the trial judge would know the particular point being made in time to do something about it.” Id. (quoting Dickerson v. Commonwealth , 58 Va. App. 351, 356 (2011)). The record demonstrates that Hawley never raised any of the a rguments he now seeks to

assert , and he cannot now do so on appeal. Moreover, as Hawley ’s appellate counsel acknowledges, the trial court made the presentence report a part of the record. Although there are exceptions to Rule 5A:18, appellant does not in voke them, and the Court will not apply the exceptions sua sponte

. Edwards v. Commonwealth , 41 Va. App. 752, 761 (2003) ( en banc ). Accordingly, we cannot consider these arguments on appeal.
III. Motion to Strike Hawley argues that the trial court erred in failing to strike the evidence as to malicious wounding. As the Commonwealth correctly notes, Hawley failed to renew his motion to strike at

2 This argument is meritless, as the trial court explicitly made the presentence report a part of the record.- 6

- the conclusion of the presentation of all the evidence, and his assignment of error is waived. Under Vir ginia law, “[w]hen a defendant in a civil or criminal case proceeds to introduce evidence in his own behalf, after the trial court has overruled his motion to strike, made at the conclusion of the introduction of plaintiff ’ s evidence in chief, he waives hi s right to stand upon such motion.” McDowell v. Commonwealth , 282 Va. 341, 342 (2011) (quoting Murillo

- Rodriguez v. Commonwealth , 279 Va. 64, 73 (2010)). After presenting his or her own evidence, a defendant must renew the motion to strike or file a moti on to set aside the verdict. Murillo

- Rodriguez , 279 Va.
at 84.
B ecause Hawley did not renew his motion to strike after he presented evidence on his own behalf and he did not file a motion to set aside the verdict, he has not preserved his challenge to the trial court’s denial of his motion to strike , and we do not consider it. Moreover, if Hawley had preserved an objection below, his argument would be procedurally defaulted under Rule 5A:20(e) because his opening brief contains no principl es of law or authorities in support of his assignment of error, in direct contrast to Rule 5A:20(e)’s requirements. See Rule 5A:20(e) (“The opening brief of appellant must contain .

. . the argument (including principles of law and authorities) relating t o each assignment of error.”).
CONCLUSION Accordingly, we affirm the trial court’s judgment and grant the motion for leave to withdraw. See Anders , 386 U.S. at 744. This Court’s records shall reflect that Garry Lee Hawley is now proceeding without the as sistance of counsel in this matter and is representing
h im self on any further proceedings or appeal. Affirmed

.