COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Huff, Judges O’Brie n and Russell Argued at Richmond, Virginia

COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY v. Record No. 1350-17-2 JUDGE WESLEY G. RUSSELL, JR. DECEMBER 27, 2017 LUTHER GEORGE BERRY, III

FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY James F. D’Alton, Judge Designate David M. Uberman, Assistant A ttorney General (Mark R. Herring , Attorney General, on briefs), for appellant. (David Lassiter, Jr., on brief), for appellee. Appellee subm itting on brief.

Luther George Berry, III was i ndicted for violating Code § 18. 2-248 for his alleged possession of cocaine with the intent to distribute. At a pret rial hearing, the circuit court granted Berry’s motion to suppress the co caine that had been discovered as a result of a search of his person. Pursuant to Code § 19 .2-398(A)(2), the Commonwealth attempts to appeal the circuit court’s ruling suppressing the evidence. For the reasons that follow, we dism iss the appeal.

BACKGROUND 1 On April 24, 2015, Berry was a p assenger in a car that was sto pped by police for having a

cracked windshield. After the c ar was stopped, Berry was remov ed from the vehicl e and searched.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 Given our dismissal of the appeal, we limit our recitation of the facts to those necessary to explain that resolution. We express no opinion regarding th e merits of the circuit court’s ruling on the motion to suppress.UNPUBLISHED- 2 - As a result of the search, police discovered a substance believ ed to be cocaine. Berry was subsequently charged with possession of cocaine with the intent to distribute. Berry first filed a motion to s uppress on May 1 2, 2017. In it , he moved the circuit court to “prohibit[] the introduction of a ny physical evidence seized an d statements obtained as a result of an

unlawful search of the defendant a nd his immediate person.” He asserted that the police had lacked “reasonable, articulable suspicio n to stop the vehicle to inves tigate further whether the crack violated the law” and that “[t]he stop, detention and search of the defendant as aforesaid were

unlawful in violation of [his] rights under the Fourth Amendmen t to the United States Constitution.” Berry filed a second motion to s uppress on May 1 8, 2017, in wh ich he sought to suppress the “introduction of any evidence seized in, or as a result of, a search of [the] vehicle and [his] person in violation of the [Four th] Amendment to the United States Constitution and Article 1, Section 10 of the Virginia Cons titution.” After noting the tra ffic stop, removal of passengers, and search of defendant, the motion alleged that “[a]s a result of the unlawful detention, contraband was ultimately retrieved from [his] person” and that “[t]here were no exigent circumstances present

which necessitated the immediate seizure and subsequent search of [the] vehicle w ithout the officer first establishing a reasonable suspicion or probable cause to believe that the defendant and/or the vehicle were involved in criminal activity.” Berry again reque sted “that the item and statements obtained as a result of this illega l search and s eizure be supp ressed and their admission into evidence at trial be prohibited.” In neither motion did Berry request that the circuit court dismiss the charge against him. The circuit court held a suppression hearing on May 24, 2017. At the outset of the hearing, the Commonwealth queried whether Berry’s “motion to suppress wa s solely limited to the stop of the vehicle.” Berry responded, “ it is alleged in [the officer’ s] police report that [the defendant] was stopped due to a cracked windshi eld. So my motion simply focus es on whether or not [there] was- 3 - reasonable suspicion to stop it based on him simply -- seeing h is report that says cracked windshield, with no other issue. ” The court the n stated, “So, it’s limited.” The Commonwealth confirmed, “If that’s the entir e scope of the mo tion to suppres s, the Commonwealth is ready to proceed.” Berry made no further c omment at that time, and the court proceeded to take evidence on

the motion. 2 Ultimately, the circu it court found that, based on the evidenc e, the police had lacked a sufficient basis to stop the car . As a result, the circuit cou rt stated that it was “sustain[ing] the motion to suppress ba sed on the stop.”

The circuit court memorialized its ruling granting the motion to suppress in an order entered on June 8, 2017. Alt hough Berry had not ye t sought dismissal o f the charge, the order states that the court had “granted the defense [m]otion to [s]uppress and [that ] the [c]ourt hereby d ismissed the . . . charge.” On June 14, 2017, the Commonw ealth made two filings in the cir cuit court. It filed a notice of appeal, appealing to this Cour t “from the [o]rder [g]ranting [Berry’s] [m]otion to [s]uppress . . . entered on the [eight h] of June, 2017.” Si multaneously, it fil ed a document it ha d entitled “Motion to Modify Order and/or Reconsider Dismissal.” In that motion, the Commonwealth a rgued that the circuit court’s dismissal of the charge “preclude[d] the Common wealth from pursuing an appeal” regarding the ruling on the mo tion to suppress. Accordingly, t he Commonwealth requested that the circuit court “modify” the June 8 , 2017 order by “strik[ing] th e language concerning the dismissal of the charge,” or, in the alternative, that the circuit court “reconsider” its decis ion to dismiss the charge. In its motion, the Comm onwealth requested neither that the circuit court revisit its substantive ruling on the suppre ssion motion nor suspend the Ju ne 8, 2017 order pending a ruling on

2 Later in the hearing, Berry a rgued that he had not limited the motion to the stop of the vehicle and was allowed to a rgue other grounds for suppression. The circuit court did not reach the issue, premising its ruli ng on its conclusion regarding the legality of the stop of the vehicle.- 4 - the motion. Notably , the Commonwealth did not assert that the dismissal of the charge in the June 8, 2017 order constituted a clerical error. On July 26, 2017, the circuit co urt held a hearing on the Comm onwealth’s motion. At the hearing, the circuit court noted that Berry had never requested that the case be dismissed and that the only matters before it at t he May 24, 2017 h earing were Ber ry’s motions to suppress. From the bench, the circuit court stated that it “would correct the orde r” and would ensure that “the dismissal language is deleted from the order.” The circuit court entered an order memorializing this ruling o n August 3, 2017. In this order, the circuit court state d that its prior order of June 8, 2017 “erroneously dismissed the case.” As a result, the August or der provided that “the [c]our t grants the Commonwealth’s [m]otion to [r]econsider the [d]ismissal and vacates the dismis sal portion of the order entered on June 8, 2017.” The order also confir med the circuit court’s or iginal ruling suppressing the

evidence. On August 9, 2017, the Commonwealt h noted its appeal of the Au gust 3, 2017 order. The same day, the Commonwealth a lso filed a motion in this Cour t seeking to withdraw its appeal of the June 8, 2017 order . By order entered November 16 , 2017, this Court dismissed the motion to withdraw the appeal. We noted that “the Commonwealth did not timely file a petition for appeal” in relation to t he appeal of the June 8, 2017 order , and therefore, concluded that we were “without jurisdiction to consider the appeal or the motion to withdraw” the appeal of the June 8, 2017 order. Commonwealth v. Berry, No. 0949-17-2 (Va. Ct. App. Nov. 16, 2017). Accordingly, the issue before us is limited to the Commonwealth ’s attempt to appeal the circuit court’s August 3, 2017 order.- 5 - ANALYSIS 3 I. Circuit Court’s Authority to Enter the August 3, 2017 Order Before addressing whether the C ommonwealth’s attempted appeal of the August 3, 2017 order complied with the statutory requirements governing such a ppeals, we must determine whether the circuit court had j urisdiction to enter the August 3, 2017 order in the first instance.

If the circuit court lacked s uch jurisdiction, the August 3, 20 17 order is a nullity, leaving us nothing to review on appeal. Mi nor v. Commonwealth, 66 Va. App . 728, 738, 791 S.E.2d 757, 762 (2016).

A. Rule 1:1 In general, a circuit court’s re tention of jurisdiction over amatter that was properly before it is governed by Rule 1: 1. Rule 1:1 provides, in perti nent part, that “[a]ll final judgments, orders, and decrees, i rrespective of terms of court, shall remain under the control of the trial court and subject to be modified, vacated, or suspend ed for twenty-one days after the date of entry, and no longer.” In turn, “[a] final order is on e which disposes of the whole subject, gives all the relief contemplat ed, provides with reasonable com pleteness for giving effect to the sentence, and leaves nothing to be done in the cause save to su perintend ministerially the execution of the order.” Daniels v. Truck & Equip. Corp., 205 Va. 579, 585, 139 S.E.2d 31, 35 (1964) (internal quotation marks and citations omitted). It is well established that “[ a] court speaks through its orde rs.” Wilson v. Commonwealth, 67 Va. App. 82, 94, 793 S.E.2d 15, 21 (2016). Wh ether intended by the circuit

3 Whether an appeal is properly before an appellate court is a q uestion reserved for appellate courts. Minor v. Commonwealth, 66 Va. App. 728, 737- 38, 791 S.E.2d 757, 761 (2016). The circuit court did not a ddress whether the Commonwe alth’s appeal in this case comported with the requirements of the statutory scheme. Accor dingly, in determining whether the appeal properly is before us , we are not “reviewing” a deci sion of the circuit court, but rather, address the question i n the first instance.- 6 - court or not, its June 8, 2017 order is, on its face, a final o rder. The order addressed not only the ruling on the motion to suppress , but also expressly dismissed the charge. Absent some subsequent action altering the effect of the order, it brought the case to a close and left nothing more to be done. Thus, it was a fi nal order for the purposes o f Rule 1:1. As noted above, the Commonwealt h never sought and the circuit court never entered an order suspending the June 8, 2017 or der to allow the circuit co urt to consider the

Commonwealth’s motion to reconsid er the dismissal. Absent such an order, the 21-day period continued to run despite the Co mmonwealth’s filing of the motio n to reconsider. Sch. Bd. v. Caudill Rowlett Scott, Inc., 237 Va. 550, 556, 379 S.E.2d 319, 323 (1989) (“Neither the filing of post-trial or post-judgment mo tions, nor the court’s taking suc h motions under consideration, nor the pendency of such motions on th e twenty-first day after fina l judgment, is sufficient to toll or extend the running of the 21-day pe riod prescribed by Rule 1:1. ” (internal citations omitted)). Accordingly, unless an exception to Rule 1:1 applies, the circu it court was without jurisdiction to enter the August 3, 2017 order. 4 B. Code § 19.2-400 A limited exception to Rule 1:1 is found in Code § 19.2-400. In pertinent part, Code § 19.2-400 provides that “[u]pon the filing of a timely no tice of appeal, the order from which the pretrial appeal is taken and further trial proceeding s in the circuit court, except for a

4 At oral argument in this Court , the Commonwealth asserted thatthe portion of the June 8, 2017 order dismissing the charge r epresented a clerical erro r and that the August 3, 2017 order was entered to correct that error pursuant to Code § 8.01-428(B ), which allows a court to enter a corrective order after Rule 1: 1’s 21-day period has run. See M inor, 66 Va. App. at 740-41, 791 S.E.2d at 763. Given our conclusi on that the filing of the not ice of appeal tolled the 21-day period, we need not determine whethe r the dismissal of the char ge constituted a clerical error for purposes of Code § 8.01-428(B). We not e, however, that if it w ere, the appellate deadlines would run from the June 8, 2017 order and not the August 3, 201 7 order. Id. at 742 n.7, 791 S.E.2d at 763 n.7.- 7 - bail hearing, shall th ereby be suspended pending disposition of the appeal.” We previously have

noted that Code § 19.2-400, when read along with Rule 1:1, operates to suspend both the efficacy and the f inality of a trial court’s o rder during the pendency of a Commonw ealth’s appeal. The effect of this provision is to t oll the finality of t he order as surely a s if the trial court had entered an orde r vacating or suspending its ord er. Commonwealth v. DeBusk, N o. 0213-08-3, 2008 Va. App. LEXIS 268, at *11 (Va. Ct. App. June 3, 2008). 5 Consistent with the statute a nd our decision in DeBusk, the C ommonwealth’s filing of the notice of appeal on June 14, 2017 operated as a s uspending order that tolled the running of Rule 1:1’s 21-day period. Accordingly, the circuit court did not lose jurisdiction over the case twenty-one days after entry of the June 8, 2017 order. By the express terms of Code § 19.2-400, the Commonwealth’s no tice of appeal not only suspended the June 8, 2017 order, b ut also suspended “further t rial proceedings in the circuit court, except for a bail hear ing.” Although this language sugg ests that a circu it court is without authority to conduct further pr oceedings other than a bail hear ing, we previously have held to the contrary. Specifically, in W est v. Commonwealth, 16 Va. App. 6 79, 685, 432 S.E.2d 730, 734 (1993), a panel of this Court stated as follows: We do not construe the language of Code § 19.2-400 to preclude the circuit court from reconsidering an order merely because the Commonwealth has f iled a notice of appeal in the circuit court. The language of t he statute simply provides tha t once a timely notice of appeal is filed, the order being appealed ma y not be enforced and the circuit co urt may not proceed to trial. By its own terms, this statute specifica lly “suspends” further proceed ings pending the disposition of the a ppeal. From this language, the legislature clearly i ntended to prohibit the circuit court from giving effect to the order being appealed and from proceeding with the trial while the Commonwealth i s challenging the pretrial order. Thus, the purpose of this statute is to prevent a circuit court from

5 “Although not binding precedent, unpublished opinions can be c ited and considered for their persuasive value.” Otey v. Commonwealth, 61 Va. App. 346 , 350 n.3, 735 S.E.2d 255, 257 n.3 (2012).- 8 - defeating the ability of the Com monwealth to pursue its appeal once the appeal is properly noted. Under the interpanel accord doc trine, we are bound by this cons truction of the statute. See Prekker v. Commonwealth, 66 Va. App. 103, 110, 782 S.E.2d 604, 607 (2016). Consequently,

we must conclude that Code § 19.2-400 did not prevent the circu it court from entertaining and ruling upon the Commonwealth’s motion to reconsider. Because neither Rule 1:1 nor Code § 19.2-400 prevented the cir cuit court from entertaining and ruling on the C ommonwealth’s motion to reconsi der, the circuit court had the authority to issue it s August 3, 2017 order. II. Commonwealth’s Appeals Pursuant to Article VI, Sec tion 1 of the Constitution of Virgi nia, “[t]he General Assembly may allow the Comm onwealth the right to appeal in all cases, including those involving the life or libert y of a person, provided such appeal would not otherwise violate this

Constitution or the Constitution of the United States.” Consis tent with this authority, the General Assembly has enacted Chapt er 25 of Title 19.2, which delineates the circumstances in which the Commonwealth may appeal a pretr ial ruling in a felony case and the procedures that the Commonwealth must follow if it pursues such an appeal. See Cod e § 19.2-398 et seq. Whether a particular appeal com ports with the substantive and p rocedural requirements set forth in the statutory sch eme presents a question of statut ory construction. When faced with such a question, “our primary object ive is ‘to ascertain and gi ve effect to legislative intent,’ as expressed by the language used in the statute.” Cuccinelli v. Rector & Visitors of the Univ. of Virginia, 283 Va. 420, 425, 722 S.E.2d 626, 629 (2012) (quoting Commonwealth v. Amerson, 281 Va. 414, 418, 706 S.E.2d 879, 882 (2011)) (further citation and internal quotation marks omitted). In doing so, we “give statutory language its plain m eaning,” Davenport v. Little-Bowser, 269 Va. 546, 555, 611 S.E.2d 366, 371 (2005), re cognizing that we are to view the- 9 - words of the statute in “the c ontext in which they are used,” C ity of Virginia Beach v. Bd. of Supervisors, 246 Va. 233, 236, 435 S.E.2d 382, 384 (1993) (quot ing Grant v. Commonwealth, 223 Va. 680, 684, 292 S.E.2d 348, 350 (1982)). Furthermore, be cause the Commonwealth’s right to appeal is in derogation of the general prohibition aga inst such appeals, the statutory requirements “must be strictly c onstrued against the state and limited in application to cases falling clearly within the langua ge of the statute.” Commonwea lth v. Hawkins, 10 Va. App. 41, 44, 390 S.E.2d 3, 5 (1990) (quoting Crew s v. Commonwealth, 3 Va . App. 531, 536, 352 S.E.2d 1, 3 (1987)). In pertinent part, Code § 19.2-398( A)(2) allows the Commonweal th to file “a pretrial appeal” regarding a circuit court’s ruling on a motion to suppr ess evidence that was obtained in

violation of the Fourth Amendme nt. The Commonwealth contends t hat, because the August 3,

2017 order states that the circuit court “grants the relief sou ght in [Berry’s] [m]otion to [s]uppress in which the evidence obtained from the illegal sear ch and seizure is prohibited from being introduced at trial,” the appeal is permitted by the stat utory scheme. Although we agree that Code § 19.2- 398(A)(2) authorizes appeal s of such suppression rulings in the abstract, we concl ude that the statutory scheme does not permit the Commonwealth’s attempted appe al of the August 3, 2017 order in this case. Our conclusion stems from our determination that the statutory scheme allows t he Commonwealth to file one, but only one, appeal in response to a circuit court’s granting of a motion to suppress.- 10 - We first note that Code § 19.2-398( A) allows the Commonwealth “ a pretrial appeal from

. . . an order.” (Emphasis added). 6 Although in construing statutor y language the singular can include the plural, see Code § 1-227, the context provided by t he remainder of the statutory scheme strongly suggests that the us e of the singular here was intended to limit the Commonwealth to only one appeal o f a suppression ruling. A con trary conclusion would

frustrate rather than further the purpose of the statutory sche me. We repeatedly have held that, whe n read as a whole, the statuto ry scheme grants the Commonwealth a limited right to a ppeal and that the “the purpos e of the statutory scheme . . . is to facilitate a ‘prompt determin ation of whether a prosecution can effectively move forward or

whether a defendant should be rel eased.’” Commonwealth v. Spin ola, No. 0535-15-4, 2015 Va. App. LEXIS 252, at *14-15 (Va. Ct. App. Sept. 8, 2015) (quo ting Commonwealth v. Mitchell, No. 0741-13-3, 2013 Va . App. LEXIS 251, at *8 (Va. Ct . App. Sept. 10, 2013)). This understanding stems from numerous instances in the statutory sc heme where the General Assembly has required that issu es related to Commonwealth’s app eals be resolved promptly. For example, to initiate an a ppeal pursuant to Code § 19.2-398, the Commonwealth must note its appeal within seven days of the circuit court’s order, Code § 1 9.2-400, while a party normally has thirty days to note an appeal , Rule 5A:6(a). Unlike other appeals for which no deadline is specified, this Court must gran t or deny a Commonwealth’s petit ion for pretrial appeal taken pursuant to Code § 19.2-398 within thirty days of the filing of the brief in opposition. Code

6 We acknowledge that the circuit court issued two orders that m emorialized its ruling regarding suppression of the evi dence; however, it issued but o ne substantive ruling. Neither the Commonwealth’s motion to rec onsider nor the July 26, 2017 heari ng that resulted in the August 3, 2017 order addressed the substanc e of the circuit court’s su ppression ruling. Rather, the only issue raised was the inclusi on of language dismissing the charg e in the first order. The inclusion of language regarding suppre ssion in the August 3, 2017 order w as simply the circuit court restating what it had alrea dy ordered. Accordingly, only one s ubstantive ruling regarding suppression was made, and it wa s made in the order of June 8, 2 017.- 11 - § 19.2-403. Once a petition in a Commonwealth’s appeal taken p ursuant to Code § 19.2-398 is granted, the parties are faced with an accelerated briefing sch edule. Compare Code § 19.2-404

with Rule 5A:19(c). Additionally, the General Assembly has required that, once we grant such a petition for appeal, we must “accelerate the appeal on [our] do cket and render [our] decision not later than 60 days after the f iling of the appellee’s brief or after the time for filing such brief has expired.” Code § 19.2-404. There i s no similar requirement in other appeals that come to us through the petition process. Unlik e other appellants in crimi nal appeals, the Commonwealth may not seek rehearing if we de ny the petition for appeal. Com pare Code § 19.2-403 with Code § 17.1-407(D). Once we grant a Commonwealth’s petition for app eal brought pursuant to Code § 19.2-398, neither party may seek r ehearing of our ultimate de cision. 7 Compare Code § 19.2-404 with Rules 5A:33 and 5A:34. F inally, if we rule aga inst the Commonwealth in an appeal brought by the Commo nwealth pursuant to Code § 19.2-398, the Commonwealth may not

seek review of that decisi on in the Supreme Court. Code § 17.1 -410(A)(4). Read as a whole, it is clear tha t the Commonwealth’s right to appeal is limited and must be pursued expeditiously or not at all. From this, we conclude that the Commonwealth is entitled to only one opportunity to appeal a c ircuit court’s substantive ruling on a motion to suppress. To allow the Commonwealth multiple bites at the same appellate app le would render the

above-referenced deadlines essen tially meaningless. The Common wealth, benefitting from Code § 19.2-400’s automatic tolli ng upon the filing of a notice of appeal, could delay the proceedings indefinitely by filing multiple motions to rehear i n the circuit court with the

7 Although a defendant is not perm itted to seek rehearing if we reverse a trial court’s granting of a motion to suppress, he is permitted to raise the suppression issue on direct appeal if he is convicted after rema nd. See Code §§ 17.1-410(A)(4) & 19. 2-409; Cole v. Commonwealth, ___ Va. ___, ___, 806 S.E.2d 387, ___ (2017).- 12 - appellate clock effectively not r unning until the circuit court disposed of the last of said

motions. 8 Here, the Commonwealth tim ely noted an appeal of the June 8, 2 017 order when it filed its notice of appeal on June 14, 2017. The appellate deadlines began to run, and the Commonwealth was free to pursue that appeal to its conclusion. Based on an apparent misunderstanding of the law, 9 the Commonwealth abandoned that appeal when it failed to timel y file the required petition for a ppeal, leaving this Court with no choice but to dismiss that appeal. Berry, No. 0949-17-2 (Va. Ct. App. Nov. 16, 2017). Consistent with our constr uction of the statutory scheme, that abandoned a ppeal was the Commonwealth’s one appeal of the suppression ruling in this case, and therefor e, the current appeal is not p roperly before us. 10

8 We do not suggest that the Comm onwealth was engaged in such di latory tactics in this case. Rather, we recognize that a contrary inte rpretation woul d allow such tactics and frustrate the deadlines in the statutor y scheme. Accordingly, the possib ility of such mischief informs our construction of the statutory scheme.

9 In abandoning the initial appeal, the Commonwealth mistakenly asserted that it “could not proceed” with the appeal be cause the June 8, 2017 order notonly granted the motion to suppress, which could be appealed, it dismissed the charge, whi ch could not be appealed. We previously have held that a circ uit court’s erroneous inclusion of language dismissing a charge in an order granting a motion to suppr ess does not prevent the Com monwealth from appealing the suppression ruling. DeBusk, 2008 Va. App. LEXIS 268, at *12-13 (“Upon the Commonwealth’s filing of its notice of appeal, the entire order--including the portion dismissing th e indictments-- was suspended by operation of Code § 19.2-400. Because the dis missal order was suspended by operation of the statute . . . , the matter remained within the jurisdiction of the trial court. The [trial court’s] order [dismissing t he indictments] is subject t o being vacated or modified by the trial court based upon our conclusi on regarding the motion to s uppress.”); see also Commonwealth v. Lane, No. 0318-99-2, 1999 Va. App. LEXIS 476, a t *2 n.2 (Va. Ct. App. Aug. 3, 1999). We reiterate those holdings here.

10 Nothing we say today should be read a s anything more than, whe n a circuit court issues a ruling on a motion to suppress, the Commonwealth is limited t o one appeal of that ruling. If the circuit court conducted multiple suppression hearings resul ting in multiple, distinct orders suppressing evidence, the Commo nwealth would not be limited to one appeal, but rather, would be limited to one appeal regar ding each distinct ruling. Here, as noted above, there was only one substantive ruling r elated to suppression.- 13 - CONCLUSION For the foregoing reasons, we conclude that the Commonwealth’s attempted appeal of the August 3, 2017 order is not prop erly before us. Accordingly, w e dismiss the appeal.

Dismissed.