COURT OF APPEALS OF VIRGINIA
Present: Judges Hum phreys, Beales and Decker Argued by teleconference

WAYNE EDWARD MEADOWS, JR. MEMORANDUM OPINION * BY v. Record No. 1026-14-2 J UDGE ROBERT J. HUMPHREYS APRIL 7, 2015 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF APPOMATTOX COUNTY Kimberley S. White, Judge Roger B. Stough (R oger B. Stough, PC, on brief), for appellant. Aaron J. Campbell, Assistant A ttorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Wayne Edward Meadows, Jr., (“Meadows”) appeals his three convictions for taking indecent liberties with a minor in violation of Code § 18.2-370 in the Circuit Court of Appomattox County (the “trial court”). In support of his appeal, Meadows ar gues: (1) that “the trial court erred in not using strict scrutiny to evaluate the constitutionality of Code § 18.2-370 because Code § 18.2-370 prohibits the exercise of free speech by consenting adults;” and (2) that “the trial court erred in not finding that Code § 18.2-370 is unconstitutionally overbroad in violation of the First Amendment of the United States Constitution.” For the reasons that follow, we hold that Meadows’s arguments are procedura lly defaulted pursuant to Rule 5A:18 and we therefore decline to consider the merits of his arguments. Meadows orally moved to dismiss the char ges against him on th e basis that Code § 18.2-370 was unconstitutionally overbroad on the mo rning of his trial. The parties briefly

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - discussed the merits of his argument, and then th e trial court ruled that the motion was untimely. The trial court stated, “[f]irst, the [c]ourt will find that the provisions of 3A :9 of the Rules of the Supreme Court have not been followed and that the motion has not been made in the manner set forth in the rule.” The trial court further explained: if the [c]ourt were to consider the substantive nature of the motion notwithstanding the late ness and not withstanding that it’s not in writing, the [c]ourt would find that for the reasoning set forth in [Podracky v. Commonwealth, 52 Va. App. 130, 662 S.E.2d 81 (2008),] that the motion should be denied; that the Code [§] 18.2-370 has not been shown to prohibit speech protected under the First Amendment. And for that reason the motion will be denied. The trial court issued a written order denying Meadows’s motion to dismiss “based upon Rule 3A:9 of the Supreme Co urt of Virginia.” At oral argument, Meadows suggests that even though his motion to dismiss was untimely, the issue should be considered by this Court because the tria l court addressed the merits of his motion in its ruling from the bench. However, it is well settled that “a court speaks only through its written orders.” Conyers v. Ma rtial Arts World of Richmond, Inc., 273 Va. 96, 103, 639 S.E.2d 174, 177 (2007). Therefore, because the trial court’s wr itten order denied Meadows’s motion as procedurally untimely “based upon Rule 3A:9,” and remained silent as to the merits of his argument, it is without conseque nce that the trial judge opined from the bench as to how she might rule on the motion if the constitutional challenge had been properly before the trial court. Rule 3A:9(b)(1) describes defenses and objections that a defendant must raise before trial that will otherwise be considered waived: Defenses and objections based on defects in the institution of the prosecution or in the written charge upon which the accused is to be tried, other than that it fails to show jurisdiction in the court or to charge an offense, must be raised by motion made within the time prescribed by paragraph (c) of this Rule. The motion shall- 3 - include all such defenses and obj ections then available to the accused. Failure to present any such defense or objection as herein provided shall constitute a waiver thereof. Rule 3A:9(c) requires th at a motion referred to in subparagr aph (b)(1) “shall be filed or made before a plea is entered and, in a circuit court, at least 7 days before the day fixed for trial.” This Court has clarified that “‘[t]he plain language of the Rule states that the requirements of Rule 3A:9(b)(1) are mandatory , and failure to raise such [moti ons] properly is a waiver, unless good cause is shown.’” Rambo v. Commonwea lth, 51 Va. App. 418, 424-25, 658 S.E.2d 688, 691 (2008) (emphasis added) (quoting Harris v. Commonwealth, 39 Va. App. 670, 675, 576 S.E.2d 228, 230 (2003) (en banc)). In this case, the tria l court found that Meadows had failed to comply with Rule 3A:9 and therefore his constitutional arguments were waived. Meadows does not assign error to the trial court’s denial of his motion to dismiss on the grounds that he failed to comply with Rule 3A:9. Rule 5A:18 provides that this Court will re view a ruling of the lower court only if “an objection was stated with reasona ble certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of ju stice.” The rule requires that “a specific argument must be made to the trial cour t at the appropriate time , or the allegation of error will not be considered on appeal.” Edwards v. Comm onwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en banc). Consequently, because Meadows’s constitutional challenge was not made at the appropriate time and was deem ed waived by the trial court, his argument is not properly preserved under Rule 5A:18. See, e.g., Parker v. Common wealth, 42 Va. App. 358, 379, 592 S.E.2d 358, 369 (2004) (holding that it would not consider the merits of the appellant’s arguments because they were not properly preser ved for appeal pursuant to Rule 5A:18 because the appellant had waived his argument at the trial court by failing to comply with Rule 3A:9).- 4 - In addition to Rule 3A:9, there is a statut ory requirement for filing motions to dismiss based on constitutional grounds. Code § 19.2-266.2( A)(ii) mandates that defense motions or objections seeking “dismissal of a warrant, information, or indict ment or any count or charge thereof on the ground that a statut e upon which it was based is uncons titutional shall be raised by motion or objection.” “Such a motion or objection in a proceeding in circuit court shall be raised in writing, before trial . . . [and] shall be file d and notice given to opposin g counsel not later than seven days before trial in circuit court.” C ode § 19.2-266.2(B). “[T]he plain language of Code § 19.2-266.2 requires without exception that defense motions or objections seeking dismissal” on the basis that the charging statute is unconstitu tional must be raised by a defendant “in writing before trial to preserve his objection.” Williams v. Commonwealt h, 57 Va. App. 750, 768 n.4, 706 S.E.2d 530, 539 n.4 (2011) (emphasis added). This Court has unequivocally held that the filing requirements of Code § 19.2-266.2 are “mandatory.” Upchurch v. Commonwealth, 31 Va. App. 48, 51-53, 521 S.E.2d 290, 291-92 (1999). 1 Therefore, because Meadows did not comply with Code § 19.2-266.2(ii)’s requirement to file a written motion raising his constitutional objection at least se ven days before the trial, he failed to preserve his arguments for appeal. Meadows does not offer any authority explai ning why he should be excused from the filing requirements of Rule 3A :9 or Code § 19.2-266.2, nor does he present any argument as to the applicability of any exceptions to Rule 5A :18. Moreover, because no evidence was presented by either party regarding the merits of Mea dows’s motion, and because the trial court never

1 The legislative rationale behi nd this statutory mandate is not difficult to discern. The requirements of both the statute a nd Rule 3A:9 ensure that both the Commonwealth and the trial court have adequate notice of the precise alleged constitutional def ect in the statute the defendant is charged with violating. Moreover, in conjuncti on with section (B) of th e statute that requires a hearing on such motions not later than three days before trial, the Commo nwealth is thereby not deprived of its statutory right to an interlocutory appeal of an adverse decision by the trial court pursuant to Code § 19.2-398.- 5 - actually adjudicated the merits of Meadows’s constitutional challenge, there is no record upon which the merits of Meadows’s arguments can be resolved. Consequently, we hold that Meadows’s assignm ents of error are procedurally defaulted and therefore we will not address the merits of his constitutional arguments. Accordingly, we affirm Meadows’s convictions on the basis that he failed to properly preserve his arguments pursuant to Rule 5A:18. Affirmed.