COURT OF APPEALS OF VIRGINIA
Present: Judges Alst on, Chafin and Decker Argued at Norfolk, Virginia

MAURICE DONTRELL BOYKINS MEMORANDUM OPINION * BY v. Record No . 1487-16-1 JUDGE TERESA M. CHAFIN JUNE 6, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK Robert H. Sandwich, Jr., Judge Thomas H. Sheppard, II ( Sheppard Law, P.L.C., on brief), for appellant. Craig W. Stallard, Assistant Atto rney General (Mark R. Herrin g, Attorney General, on bri ef), for appellee.

At the conclusion of a bench trial held in the Circuit Court of the City of Suffolk, Maurice Dontrell Boykins was c onvicted of multiple offenses bas ed on his involvement in a gunfight at a shopping center. 1 On appeal, Boykins challenges th e sufficiency of the evidence supporting his convictions. Boykins contends that the evidence presented by the Commonwealth failed to establish that he pa rticipated in the gunfight. 2 Additionally, he argues that the evidence presented at trial failed to s upport his conviction for malicio usly shooting into an occupied building in violation of Code § 18.2-279 because it did not pro ve that he actually caused any

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

1 Specifically, Boykins was convi cted of malicious wounding, att empted murder, two counts of use of a firearm i n the commission of a felony, reckl ess handling of a firearm, maliciously shooting into an occupied building, unlawful shooti ng in the commission of a felony, and misdemeanor destruction of property.

2 We have paraphrased and re-orde red Boykins’s assignments of error so that we may more efficiently address them in this appeal.UNPUBLISHED‐ 2 ‐ damage to the building in question. In a third assignment of e rror, Boykins challenges the sentence imposed by the circuit co urt for his attempted murder conviction, arguing that the imposed sentence exceeded the m aximum sentence allowed by statute. For the reasons that follow, we affirm Boykins’s convi ctions and remand this case fo r the correction of clerical errors regarding Boykins’s sentences.
I. BACKGROUND “In accordance with establishe d principles of appellate review , we state the facts in the light most favorable to the Commo nwealth, the prevailing party in the trial court[, and] accord the Commonwealth the benefit of all inferences fairly deducible from the evidence.” Riner v. Commonwealth, 268 Va. 296, 303, 601 S.E.2d 555, 558 (2004). So viewed, the evidence is as follows.
A. THE GUNFIGHT AND RELEVANT EVIDENCE The victim in the present case wa s attacked at an outdoor shop ping center on the night of December 20, 2013. 3 As the victim walked along th e sidewalk of the shopping cente r, an individual rushed him from be hind and shot at him. Although th e victim initially ran from his assailant, he eventually drew his own firearm from a holster onhis hip and fired approximately seven shots at him. The assail ant fled after exchanging gunfir e with the victim in the parking lot of the shopping center. The victim was shot in his right arm d uring the course of the gunfight. The victim initially identifie d Boykins as his assailant, and a ttributed the attack to an argument that he had with Boykins earlier that day. At Boykins ’s trial, however, the victim testified that Boykins was notthe assailant. Although the vic tim acknowledged that he suffered from memory loss due to injuries that he sustained after the gu nfight, he claimed that he knew Boykins did not shoot him.

3 The shopping center was describe d as a “strip mall” by various witnesses.‐ 3 ‐ An employee at a restaurant located in the shopping center tes tified that she heard gunshots outside of the build ing around 9:00 p.m. on the night of the gunfight. The employee testified that approximately ten p eople were inside the restaur ant when the shooting occurred. Following the shooting, the empl oyee saw holes in the window of the restaurant that were not there before the shooting starte d. The employee explained that police officers arrived later that evening and collected “bullets ” from a toy box located in the r estaurant. While the employee heard gunshots outside of the building and observed the damage to the window of the restaurant, she could not identify the indivi duals involved in the gunfight

. After the shooting, the police obtained a video recording froma security camera at the shopping center that showed the beginning of the gunfight. The recording showed an individual wearing a green hooded shirt with w hite stripes on its sleeves shoot at the victim and chase him down the sidewalk of t he shopping center. A detective from the Suffolk Po lice Department was at a nearby hospital investigating an unrelated offense on the night of the shooting. While waiting in the emergency department of the hospital, the detective saw Boykins come into the hospital with what appeared to be a gunshot wound to his left arm. A lthough the detective was not aware of the recent gunfight at the shopping center, he approached Boykins and asked him how he had been injured. In response, Boykins stated: “I don’t have anything to say. Anyt hing you need to know is probably on a video at the shopping cente r.” A test performed by anothe r detective while Boykins was at the hospital eventually revealed the presence of primer residue on both of Boykins’s hands. 4 With the permission of Boykins’s s tepmother, police officers s earched her apartment for evidence related to the gunfi ght. Although the police officers conducting the search did not find

4 A forensic scientist testified that primer residue is also com monly referred to as “gunshot” residue.‐ 4 ‐ a firearm in the apartment, they found a green hooded sweatshirt wi th white stripes on its sleeves. Notably, the shirt ha d a round hole in its left sleev e in the same area where Boykins had been shot in his arm. Boykins’s stepmother admitted that he ca me to her apartment after he had been shot and removed his shirt, bu t she stated that she could not remember which shirt he was wearing on the night in question. S he claimed, however, that the green shirt did not belong to Boykins. In his defense, Boykins testifie d that he was not involved in the gunfight at the shopping center. He also denied that th e green sweatshirt belonged to h im. Boykins explained that he was shot by an unidentified man on the n ight of the gunfight after he was caught having sex with the man’s wife. Additionally, Boykins explained that he made the s tatements about the video at the shopping center because other polic e officers at the hospital h ad already questioned him about the gunfight. Boykins admitted that he never told the police o fficers investigating the gunfight about the alleged cause of hi s injuries, and his paramour did n ot testify at trial. Boykins also admitted that he had been convicted of multiple felonies.
B. THE TRIAL PROCEEDINGS At Boykins’s trial, the Common wealth presented testimony from various witnesses establishing the aforementioned facts. Additionally, the green sweatshirt found at the home of Boykins’s stepmother and the vi deo recording of the beginning o f the gunfight were admitted into evidence. Although the resta urant employee testified that the police recove red “bullets” from the restaurant, the Comm onwealth did not provide any exper t testimony regarding the forensic analysis of those objec ts. Furthermore, the Commonwea lth failed to present any testimony regarding the positioning of the gunfight participant s, the potential tr ajectory of their gunshots, or the specific locati on of the restaurant in the sho pping center.‐ 5 ‐ At the conclusion of the Comm onwealth’s evidence, Boykins move d to strike the evidence against him on multiple grounds. Boykins challenged e ach of the charges against him by arguing that the evidence pres ented failed to establish that he perpetrated the offenses. The circuit court denied Boykins’s motion to strike based on that a rgument. In the alternative, Boykins chall enged the malicious shooting c harge by arguing that the evidence failed to prove that th e gunshots he may have fired du ring the gunfight actually struck the restaurant. 5 Specifically, Boykins contended that “there was never any tes timony as to who actually was shooting at the bui lding, even if you accept the C ommonwealth’s case.” The Commonwealth responded that Boykin s should be held accountable for the gunshots fired into the restaurant because he was “the catalyst for every activity that occurred” at the shopping center and that the act ions taken by the victim while defending himself were “foreseeable consequences” of Boykins’s att ack. Boykins did not respond to this argument. The circuit court agreed with the Commonwealth and denied the motion to strike as it pertained to the malicious shooting charge, explaining that “w hile it wasn’t specifically mentioned who in particular was the one whose bullets might have s truck the [restaurant,] I thi nk that is a foreseeable consequence of shooting in the parking lot.” 6 After presenting defense evidence, Boykins renewed his motion to strike. Boykins incorporated the arguments from his previous motion to strike t o support his renewed motion without offering any additional argument or responding to the C ommonwealth’s theory of

5 This argument did not extend to Boykins’s misdemeanor destruct ion of property charge, as that charge was based on damage to a vehicle parked in the p arking lot of the shopping center rather than the restaurant.

6 The circuit court gr anted Boykins’s motion t o strike as it per tained to a second malicious shooting charge because the Commonwealth’s evidence o nly established that one building was damaged during the gunfight.‐ 6 ‐ criminal liability. The circuit court denied the renewed motio n to strike without hearing additional argument f rom the Commonwealth. In their closing arguments, the C ommonwealth and Boykins focuse d on the circumstantial evidence linki ng Boykins to the shooting. Neith er party referred to Boykins’s prior argument regarding the malicious shooting charge. After hearing the parties’ closing arguments, the circuit court c onvicted Boykins of the offenses at issue in this appeal. Although the circuit court provided a de tailed ruling from the bench add ressing the sufficiency of the evidence proving that Boykins att acked the victim at the shoppi ng center, the circuit court did not specifically address the lac k of evidence establishing whic h of the two men actually shot into the restaurant.
C. THE SENTENCING PROCEEDINGS On October 5, 2015, the parties reap peared before the circuit court for Boykins’s sentencing hearing. At the conclu sion of the hearing, the circ uit court orally pronounced the sentences imposed for each of Boykins’s convictions. Among oth er sentences not challenged in this appeal, the circuit court or ally imposed a sentence of tenyears of incarceration with five years suspended for Boykins’s malicious wounding conviction and twenty years of incarceration with ten years suspended for Boyki ns’s attempted murder convict ion. The circuit court en tered sentencing orders pertaining to Boyk ins’s convictions the following day. The sentences imposed in the orders for Boykins ’s malicious wounding and attempted murder convictions , however, did not correspond with the sentences for those convictions pronounced orally a t the sentencing hearing. Rathe r, the sentencing orders stated that Boykins was sentenced to twe nty years of incarceration with ten years suspended for the malicious wounding conviction and te n years of incarceration wi th five years suspended for the attempted murder conviction.‐ 7 ‐ On November 4, 2015, the circuit co urt held a second hearing r egarding Boykins’s malicious wounding and attempted murder convictions. At that h earing, the circuit court explained that it misspoke whe n it orally pronounced Boykins’s sentences for those convictions at the original sentencing hear ing. Specifically, the circuit court judge told Boykins that, “I misspoke and I actually sentenc ed you on the attempted murder f or what I was trying to sentence you to on the malicious wounding.” T he circuit court then expl ained that the October 6, 2015 sentencing orders corre ctly reflected the s entences that it int ended to impose for the two convictions. The circuit court entered an or der memorializing the second he aring on November 6, 2015. That order, however, incorr ectly stated the holding that the circuit court articulated from the bench on November 4, 2015. Although the circuit court expr essly clarified t hat it intended to sentence Boykins consistentl y with the October 6, 2015 sentenci ng orders, the November 6, 2015 order stated that the circuit court advised Boykins that the se ntence imposed for his malicious wounding conviction “is now [ten] year s with [five] years suspe nded and that the sentence imposed in the charge of [a]ttempted [m]urder, . . . is now [tw enty] years with [ten] years suspended . . . .”
II. ANALYSIS Boykins presents three assignmen ts of error for appellate revi ew. Two of those assignments challenge the suffi ciency of the evidence supportin g his convictions. First, he argues that the evidence presen ted by the Commonwealth failed t o establish that he was the perpetrator of the c harged offenses. Alternatively, he contend s that the evidence did not establish that he actually shot i nto the restaurant that was damaged during the gunfight, and therefore, it was insufficient to support his conviction for ma liciously shooting into an occupied building in violation of Code § 18.2-279. In his third assignm ent of error, Boykins maintains‐ 8 ‐ that the circuit court erroneousl y imposed a sentence that exce eded the maximum sentence allowed by statute for his atte mpted murder conviction. For the reasons that follow, we conclude that the evidence pre sented in this case was sufficient to establish that Boyki ns attacked the victim at the shopping center and initiated the gunfight that occurred there. We also conclude that Boykins is procedurally barred from pursuing his second assignment of error. Furthermore, while we agree with Boykins that the November 6, 2015 order referred to a n excessive sentence pertai ning to his attempted murder conviction, we conclude that it di d so as the re sult of clerica l error. Accordi ngly, we remand this case for the correction of that error pursuant to Code § 8.01-4 28.
A. THE EVIDENCE WAS SUFFICIENT TO ESTABLISH THAT BOYKINS INITI ATED THE GUNFIGHT AND SHOT THE VICTIM When considering the sufficien cy of the evidence on appeal, we “presume the judgment of the trial court to be correct ” and reverse only if the trial court’s decision is “plainly wrong or without evidence to support it .” Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002); see also McG ee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997) ( en banc ). Under this standard, “a revi ewing court does not ‘ask itsel f whether it believes that the evidence at the trial established guilt beyon d a reasonable doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). It asks instead whether “ any rational trier of fact could have found the essential elements of the crime beyond a reasonable d oubt.” Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) ( en banc ) (emphasis added) (quoting Jackson, 443 U.S. at 319). We do not “substit ute our judgment for that of the trier of fact” even if our opinion were to differ. Wact or v. Commonwealth, 38 Va. App. 37 5, 380, 564 S.E.2d 160, 162 (2002). “This familiar standard gives full play to the respons ibility of the trier of fact fairly to‐ 9 ‐ resolve conflicts in the tes timony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. Generally, there are two types of evidence presented during a trial - direct evidence and c ircumstantial evidence. Direct evidence is offered to prove as a fact the point in issue. Circumstantial evidence, by contra st, is offered to prove a fac t not directly in issue, from which afact in issue may reasonably be inferred. There is no distinction in the law between the weight or value to be given to e ither direct or circumstantial evidence. The finder of fact is enti tled to consider all of the evidence, without distinction, in reaching its determination. Commonwealth v. Hudson, 265 Va. 505, 512-13, 578 S.E.2d 781, 78 5 (2003). “Circumstantial evidence is not viewed in isolation. ‘While no single piece of evidence may be sufficient, the combined f orce of many concurrent and re lated circumstances, each insufficient in itself, may lea d a reasonable mind irresistibly to a conclusion.’” Id. at 514, 578 S.E.2d at 786 (quoting Derr v. Commonwealth, 242 Va. 413, 425, 410 S.E.2d 662, 669 (1991)). In the present case, the combi nation of direct and circumstant ial evidence presented by the Commonwealth amply supported the circuit court’s conclusionthat Boykins was the perpetrator of the offe nses at issue. Boyki ns was linked to th e shooting by the initial identification of the victim, hi s clothing, his wounds, the pre sence of primer residue on his hands, and his own statements to the police. The video recording showing the beginning of the gunfight at the shopping center showed an individual in a hooded gr een shirt with white stripes on its sleeves shoot at the victim and chase him down the sidewal k. A gunfight between the assail ant and the victim followed. Although the victim testified differe ntly at trial, he initiall y identified Boykins as his assailant and attributed the cause of the attack to an argument he had wi th Boykins earlier that day. 7

7 The circuit court questioned the victim’s motivation for chang ing his identification of the assailant, and expressly sta ted that it did not believe all of the victim’s testimony at trial‐ 10 ‐ Boykins was found at a nearby hospita l seeking treatment for a gunshot wound in his arm shortly after the gunfight at th e shopping center occurred, and the primer residue found on his hands implied that he had recently shot a firearm or been in cl ose proximity to someone who had done so. Moreover, Boykins made statements to a detective at t he hospital that linked him to the shooting. When the detective asked Boykins how he had been inj ured without referencing the gunfight at the shopping center, B oykins told him that everythi ng he needed to know was “probably on a video at the shoppi ng center,” implying that he had been injured in the gunfight that occurred there. Furthermore, a distinctive sh irt similar to the one worn by the shooter in the recording was found at Boykins’s stepmothe r’s home later that evening. B oykins’s stepmother testified that he had taken off his shirt at her home after he was shot t hat evening, and the green hooded shirt had a round hole in its sl eeve corresponding to the locat ion of Boykins’s gunshot wound. Although Boykins’s stepmother cl aimed that the shirt did not be long to Boykins, her testimony did not negate the possibility tha t he had been wearing it earl ier that evening. While Boykins testified that he w as not involved in the shootin g, the circuit court was at liberty to discount his self-serving statements. See Armstead v. Commonwealth, 56 Va. App. 569, 581, 695 S.E.2d 561, 567 (2010). “[D]etermining the credi bility of the witn esses and the weight afforded the testimony of t hose witnesses are matters le ft to the trier of fact.” Parham v. Commonwealth, 64 Va. App. 560, 565, 770 S.E.2d 204, 207 (2015). Although Boykins claimed at trial that he was shot by som eone else at a different locati on on the night in question, he never informed the police of the alleg ed alternative ca use of his inj uries during their investigation and

because he contradicted himself several times. “The trier of f act is not required to accept a party’s evidence in its entirety, but is free to believe or dis believe, in whole or in part, the testimony of any witness.” Eng lish v. Commonwealth, 43 Va. App . 370, 371, 598 S.E.2d 322, 323 (2004).‐ 11 ‐ failed to present any independent e vidence corroborating the al ibi he asserted at trial. Additionally, his attempts to expl ain the statements he made to the detective about the shopping center conflicted with the dete ctive’s testimony. The detectiv e testified that he spoke to Boykins shortly after he saw him come i nto the hospital, suggesting tha t Boykins had not spoken to other police officers at the hospital before he spoke to the detectiv e. Under these circumstances, the circuit court understandabl y rejected Boykins’s testimony. In summary, the evidence presen ted by the Commonwealth was suf ficient to permit the circuit court to conclude that Boykins initiated the gunfight a t the shopping center and shot the victim. As Boykins only challenge d the majority of his convict ions on the ground that the evidence failed to establish tha t he was the perpetrator of the offenses, we affirm the convictions on which appellate review was lim ited to this issue. According ly, we affirm Boykins’s convictions of malicious woundi ng, attempted murder, two counts of use of a firearm in the commission of a felony, reckless handling of a firearm, unlawfu l shooting in the commission of a felony, and misdemeanor destruction of property.
B. BOYKINS WAIVED HI S ASSIGNMENT OF ERROR PERTAINING TO HIS MALICIOUS SHOOTING CONVICTION On appeal, Boykins contends that the evidence presented by the Commonwealth was insufficient to establish that he maliciously shot into an occu pied building in vi olation of Code § 18.2-279. While Boykins generally contends that the evidence failed to estab lish that he was the perpetrator of all of the o ffenses for which he was convict ed, he presents a separate challenge regarding his malicious shooti ng conviction. Citing the lack o f expert testimony regarding the forensic analysis of the objects recovered from the restaurant and the lack of any testimony regarding the positioning of the gunfight participants and the trajectory of their gunfire, Boykins argues that the Commonwealth’s e vidence failed to prove that he actually fired a gunshot into the restaurant damaged during the gunf ight. Given the Commonwealth ’s evidence, Boykins‐ 12 ‐ contends that it was equally pr obable that the gunshots fired b y the victim caused the damage to the restaurant. Boykins then arg ues that he cannot be held res ponsible for the victim’s negligent

acts. As a preliminary matter, the Co mmonwealth contends that Boykins did not adequately preserve his argument concerning this issue. We agree. Rule 5A:18 states, in pertinent part, “No ruling of the trial court . . . will be considered as a basis for reversal unless a n objection was stated with reason able certainty at the time of the ruling, except for good cause shownor to enable the Court of A ppeals to attain the ends of justice.” Under this rule, a specific argum ent must be made to the trial court at the appropriate time, or t he allegation of error will not be considered on appeal. A general a rgument or an abstract refere nce to the law is not sufficient to preserve an issue. Making one specific argument on an issue does not preserve a separate lega l point on the same issue for review. Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) ( en banc ) (citations omitted). Although Boykins made a specific motion to strik e arguing that the Commonwealth’s evidence failed to establish tha t he actually damaged the resta urant, the Commonwealth contends that Boykins waived his appellat e argument by failing to expres sly challenge the theory of liability argued by the Commonw ealth in response to his motion. After Boykins asserted that the Commonwealth had failed to prove tha t he actually fired the gun shots that damaged the restaurant, the Commo nwealth argued that Boykins should be held accountable for any gunshots the victim may have fired into the restaurant because the victi m’s acts of self-defense were “foreseeable consequences” of Boykins’s attack. The circuit co urt accepted this theory, and explained that “while it wasn ’t specifically mentioned who in p articular was the one whose‐ 13 ‐ bullets might have struck the [restaurant,] I think that is a f oreseeable consequence of shooting in the parking lot.” While the circuit court did not mention the proximate causatio n theory when it convicted Boykins of the malicious shooti ng offense, the record supports the inference that the circuit court relied on that theory of liability. As the Commonwealth’s evid ence failed to prove that Boykins actually fired a gunshot into the r estaurant, the circuit court must have based his conviction on the proximate causation theory that it previously accepted whenthe Commonwealth presented it in response to Boykins’s ini tial motion to strike. The principles of proximate cau sation on which the Commonwealt h and the circuit court apparently relied have never b een addressed in the context of C ode § 18.2-279 by an appellate court of Virginia. These princi ples are typically applied in i nvoluntary manslaughter cases. See, e.g., Brown v. Commonwealth, 278 Va. 523, 685 S.E.2d 43 (2009); Gallimore v. Commonwealth, 246 Va. 441, 436 S.E.2d 421 (1993). On appeal, h owever, Boykins does not contend that these principles are inapplicable to the present c ase. In his appellate brief, Boyki ns quotes Hawkins v. Commonwealth , 64 Va. App. 650, 655, 770 S.E.2d 787, 789 (2015), to acknowledge that “[t]he concept of proximate causation is ‘applicable in both civil and crimi nal cases.’” He then expres sly concedes that he was responsible for the foreseeable consequences of his criminal ne gligence. Nevertheless, Boykins argues that the actions taken by t he victim in this case were u nforeseeable, intervening events that broke “any causal connecti on between his criminal negligen ce and the ultimate injury.” We acknowledge that “[o]ur fide lity to the uniform applicationof law precludes us from accepting concessions of law made on appeal.” Logan v. Commonw ealth, 47 Va. App. 168, 172, 622 S.E.2d 771, 773 (2005) ( en banc ). For that reason, we expre ssly state that we reach no opinion as to whether the principl es of proximate causation app ly under the circumstances of this‐ 14 ‐ case. As Boykins failed to raise any argument in the circuit c ourt pertaining to the principles of proximate causation or make any ob jections on that basis, howev er, we conclude that he has waived this issue for appellate review. Regardless of its propriety or impropriety, the decision of th e circuit court based on proximate causation principles constituted an alternate theory supporting Boykins’s conviction. Although Boykins argued that the evidence failed to prove that he actually damaged the restaurant, the circu it court concluded tha t it did not matter whether Boykins or the victim damaged the restaurant because such damage was a foreseeable co nsequence of Boykins’s attack. Boykins failed to respond t o the Commonwealth’s argume nt advocating this approach in his motions to strike or closing a rgument, and he never objecte d to the circuit court’s decision on these grounds. Moreover, he neve r argued that the actions of t he victim constituted an unforeseeable, intervening event t hat relieved him of criminal liability. In light of the lack of eviden ce establishing the identity of the individual that actually fired gunshots into the restaura nt, the proximate causation the ory of liability argued by the Commonwealth and relied on by the cir cuit court was central to Boykins’s malicious shooting conviction. Boykins’s argument concerning the Commonwealth’s f ailure to prove that he actually shot into the restaurant, however, does not encompass the proximate cau sation theory of liability (i.e., that Boykins was responsible for the actions o f the victim because they were foreseeable consequences of his criminal conduct). As Boykins failed to object to the circuit court’s application of proximate causation principles at trial or argue that those principles were inapplicable to his case as a ma tter of law, we conclude that B oykins has waived the issues presented in his second assignmen t of error. Accordingly, we a ffirm his conviction of maliciously shooting into an occ upied building in violation of Code § 18.2-279.‐ 15 ‐ C. THE NOVEMBER 6, 2015 ORDER INC ORRECTLY STATED BOYKINS’S SEN TENCES FOR MALICIOUS WOUNDING AND ATTEMPTED MURDER Boykins contends that the N ovember 6, 2015 order erroneously im posed a sentence that exceeded the maximum sentence permitted by statute for his atte mpted murder conviction. We agree that the order referred t o an excessive sentence. Attemp ted murder is a Class 4 felony punishable by a term of up to t en years of incarceration. See Code §§ 18.2-10, 18.2-26, and 18.2-32. The November 6, 2015 order, however, stated that the circuit court advised Boykins that “the sentence imposed in the charge of [a]ttempted [m]urde r, . . . is now [twenty] years with [ten] years suspended . . . .” 8 Although the November 6, 2015 order re ferred to an excessive se ntence regarding Boykins’s attempted murder convi ction, we conclude that this re ference was a clerical error. 9

8 On appeal, Boykins concedes tha t he failed to object to the im position of this sentence and requests us to review the i ssue pursuant to the ends of jus tice exception to R ule 5A:18. We acknowledge that the ends of j ustice exception would permit us to review this issue despite Boykins’s failure to object to the sentence before the circuit court. See, e.g., Gordon v. Commonwealth, 61 Va. App. 682, 685, 739 S.E.2d 276, 278 (2013) (holding that the imposition of an excessive sentence justifie s the application of the ends of justice exception to Rule 5A:18).

9 While we conclude that the excessive sentence referenced in th e November 6, 2015 order was clerical error, we not e that the circuit court did no t have the authority to substantively modify Boykins’s sentences whe n it entered the erroneous order. Pursuant to Rule 1:1, the circuit court could not modify the sentencing orders more than twenty-one days after the date on which they were entered. See Ru le 1:1. In the present case, t he November 6, 2015 order was entered thirty days after the sen tencing orders were entered. Although Code § 19.2-303 provides an exception to Rule 1:1 and w ould have permitted the circuit c ourt to modify Boykins’s sentences if he had not been transferred to a receiving unit of the Department of Corrections, see Code § 19.2-303, the record failed to establish whether Boykins had been transferred to the Department of Corrections by November 6, 2015. Notwithstanding the limitations provided by Rule 1:1, the circu it court also could not modify Boykins’s sentences on November 6, 2015 because Boykins had already filed his notice of appeal with this Court. S ubject to limited exceptions not a pplicable here, “[w]hen a party files a notice of appeal, that notice ‘e ffectively transfers jurisdic tion from the lower court to the appellate court and places the named parties within the jurisdi ction of the appellate court.’” McCoy v. McCoy, 55 Va. App. 524, 528, 687 S.E.2d 82, 84 (2010) (quoting Watkins v. Fairfax Cty. Dep’t of Family Servs., 42 Va. App. 760, 771, 595 S.E.2d 1 9, 25 (2004)); see Velazquez v. Commonwealth, 292 Va. 603, 613-15, 791 S.E.2d 556, 560-61 (2016 ) (discussing a statutory‐ 16 ‐ While the order stated that Boyki ns was sentenced to twenty yea rs of incarceration for his attempted murder conviction, the r ecord in this case clearly es tablished that the circuit court intended to sentence Boykins t o ten years of incarceration for that offense. At the hearing preceding the November 6, 2015 order, t he circuit court explain ed that it had misspoken at Boykins’s original sentencing he aring and inadvertently interch anged the sentences for Boykins’s malicious wounding and a ttempted murder convictions. The circuit court then explained that it intended to im pose the sentences stated in Bo ykins’s sentencing orders: twenty years of incarceration with ten ye ars suspended for the malicio us wounding conviction and ten years of incarceration with five years suspended for the attemp ted murder conviction. Code § 8.01-428(B) provides that: Clerical mistakes in all judgme nts or other parts of the record and errors therein arising from oversight or from an inadvertent omission may be corrected by the court at any time on its own initiative or upon the motion of any party and after such notic e, as the court may order. During t he pendency of an appeal, such mistakes may be corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending suc h mistakes may be corrected with l eave of the appellate court. Pursuant to Code § 8.01-428, we remand this case to the circui t court for the correction of the clerical errors contained i n the November 6, 2015 order. A lthough the order stated that Boykins was sentenced to ten year s of incarceration for his mal icious wounding conviction and twenty years of incarceration for his attempted murder convicti on, the circuit court expressly stated that it intended to sente nce him to twenty years of incarceration for his malicious

exception involving a trial court’ s ability to con sider motions to withdraw guilty pleas pursuant to Code § 19.2-296). Although these procedural barriers prevented the circuit court from modifying the sentencing orders entered on O ctober 6, 2015, the circuit court did not attempt to modify the sentencing orders in this case. R ather, the circuit court expr essly stated that those orders correctly stated the sentences that it intended to impose for B oykins’s malicious wounding and attempted murder convictions. But for the clerical error, the November 6, 2015 order would have been consistent with Boykins ’s prior sentencing orders.‐ 17 ‐ wounding conviction and ten years of incarceration for his atte mpted murder conviction pursuant to his original sentencing orde rs. Accordingly, we remand this case and direct the circuit court to correct the November 6, 2015 order t o properly reflect the sent ences actually imposed for the convictions at issue.
III. CONCLUSION In summary, we conclude that the evidence presented by the Com monwealth supported Boykins’s convictions. The eviden ce was sufficient to establis h that Boykins perpetrated the charged offenses. Although the evi dence failed to establish th at Boykins actually shot into the restaurant damaged during the gunf ight, we conclude that Boykin s has waived his appellate argument concerning this issue by failing to challenge the prox imate causation theory argued by the Commonwealth and relied on by th e circuit court. We also r emand this case for the correction of clerical errors regarding B oykins’s attempted mur der and malicious wounding convictions contained in the November 6, 2015 order. For these reasons, we affirm Boykins’s convictions and remand this case f or the correction of clerical errors pursuant to Code § 8.01-428. Affirmed and remanded.