Carl Burnes Gordon v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Willis, Bray and Annunziata
Argued by teleconference
CARL BURNES GORDON
OPINION BY
v. 	Record No. 1195-01-4 	JUDGE ROSEMARIE ANNUNZIATA
AUGUST 27, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Herman A. Whisenant, Jr., Judge
Lisa B. Kemler (Zwerling & Kemler, on brief),
for appellant.
Leah A. Darron, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
On December 13, 2000, Carl Burnes Gordon was convicted at a
jury trial in the Circuit Court of Prince William County of
transporting marijuana into the Commonwealth with intent to
distribute, in violation of Code § 18.2-248.01, and of
possession with intent to distribute more than five pounds of
marijuana, in violation of Code § 18.2-248.1(a)(3). 	The trial
court sentenced him to twelve years in prison, with nine years
suspended, and fined him $60,000, with $50,000 suspended, on the
transportation conviction.
On March 6, 2001, several months after his conviction and
sentence by the trial court, Gordon filed a motion to set aside
his conviction for transporting marijuana into the Commonwealth

for lack of jurisdiction. 	The trial court found that Gordon's
argument related to venue and was, therefore, waived by his
failure to raise it before trial. 	The court entered final
judgment on April 18, 2001. 	For the reasons that follow, we
affirm.
Background
On July 17, 2000, State Trooper James Robinson noticed a
tractor-trailer without taillights on Interstate 66 in Prince
William County. 	Robinson stopped the vehicle, which Gordon
drove. 	Gordon told Robinson that he knew his taillights were
not functioning properly, but he hoped to reach Maryland before
stopping. 	He claimed he was delivering produce he picked up in
California.
The trooper wrote a traffic summons for the defective
taillights and asked Gordon to step down from his truck to sign
the summons. 	The trooper asked to search the truck, and Gordon
consented. 	The trooper found six boxes that were different in
appearance and color from the remainder of the boxes. 	He
discovered that these boxes were packed with 145 pounds of
marijuana. 	He also found $7,767 in cash. 	Based on this
evidence, the jury convicted Gordon of transporting marijuana
into the Commonwealth and of possession of marijuana with intent
to distribute.
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Analysis
In his post-trial motion and on appeal, Gordon argues that
the Circuit Court of Prince William County lacked jurisdiction
to try him for transporting marijuana into the Commonwealth
because it failed to prove that his offense occurred within the
"jurisdiction" or boundaries of Prince William County. 	He bases
his claim on Code § 19.2-239, which provides the circuit courts
with "exclusive jurisdiction for the trial of all presentments
and informations for offenses committed within their respective
circuits." 	He does not base his claim on Code § 19.2-244, which
governs the venue of trial,1 or Code § 17.1-513, which governs
the subject matter jurisdiction of the circuit courts.2 The
circuit court treated Gordon's claim as one involving improper
venue, and not subject matter jurisdiction, and found the claim
to be untimely. 	Although we find that the claim is one of
1 Code § 19.2-244 provides:
Except as otherwise provided by law, the
prosecution of a criminal case shall be had
in the county or city in which the offense
was committed. 	Except as to motions for a
change of venue, all other questions of
venue must be raised before verdict in cases
tried by a jury and before the finding of
guilty in cases tried by the court without a
jury.
2 Code § 17.1-513 provides, in pertinent part:
The circuit courts shall have . . . original
jurisdiction of all indictments for felonies
and of presentments, informations and
indictments for misdemeanors.
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territorial jurisdiction, not venue, we affirm Gordon's
conviction because his objection to the circuit court's
territorial jurisdiction under Code § 19.2-239 was untimely.
Gordon claims that the import of the term jurisdiction in
Code § 19.2-239 is analogous to that of subject matter
jurisdiction and is therefore not subject to waiver. 	We
disagree.
"Subject matter jurisdiction is the authority granted to a
court by constitution or by statute to adjudicate a class of
cases or controversies." 	Earley v. Landslide, 257 Va. 365, 371,
514 S.E.2d 153, 156 (1999) (citation omitted); accord Morrison
v. Bestler, 239 Va. 166, 169, 387 S.E.2d 753, 755 (1990).3
3 In Morrison, where the Supreme Court was faced with a
similar attempt to classify a procedural error as one of subject
matter jurisdiction, the Court noted:
The term jurisdiction embraces several
concepts including subject matter
jurisdiction, which is the authority granted
through constitution or statute to
adjudicate a class of cases or
controversies; territorial jurisdiction,
that is, authority over persons, things, or
occurrences located in a defined geographic
area; notice jurisdiction, or effective
notice to a party or if the proceeding is in
rem seizure of a res; and "the other
conditions of fact must exist which are
demanded by the unwritten or statute law as
the prerequisites of the authority of the
court to proceed to judgment or decree."
Farant Investment Corp. v. Francis, 138 Va.
417, 427-28, 122 S.E. 141, 144 (1924).
While these elements are necessary to enable
a court to proceed to a valid judgment,
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Subject matter jurisdiction over the class of felonies that the
court may hear is provided by Code § 17.1-513. 	See Code
§ 17.1-513; Thomas v. Commonwealth, 36 Va. App. 326, 330 n.1,
549 S.E.2d 648, 650 n.1 (2001) (noting that Code § 17.1-513
provides the Circuit Courts with jurisdiction over all felonies
committed in the Commonwealth). 	There is no question that the
Circuit Court of Prince William County had subject matter
jurisdiction to the felony case at issue here.
there is a significant difference between
subject matter jurisdiction and the other
"jurisdictional" elements.
* 	* 	* 	* 	* 	* 	*
[T]he lack of subject matter jurisdiction
can be raised at any time in the
proceedings, even for the first time on
appeal by the court sua sponte. 	Thacker v.
Hubard, 122 Va. 379, 386, 94 S.E. 929, 930
(1918). 	In contrast, defects in the other
jurisdictional elements generally will be
considered waived unless raised in the
pleadings filed with the trial court and
properly preserved on appeal. 	Rule 5:25.
One consequence of the non-waivable nature
of the requirement of subject matter
jurisdiction is that attempts are sometimes
made to mischaracterize other serious
procedural errors as defects in subject
matter jurisdiction to gain an opportunity
for review of matters not otherwise
preserved. 	See Restatement (Second) of
Judgments, § 11 (1980).
Morrison, 239 Va. at 169-70, 387 S.E.2d at 755-56.
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Rather, Gordon's claim that the Commonwealth did not prove
that his offense occurred within the "jurisdiction" of the
Circuit Court of Prince William County, is essentially a claim
that the trial court lacked territorial jurisdiction. 	The term,
"jurisdiction," as used in Code § 19.2-239, refers to the
circuit court's "authority over persons, things, or occurrences
located in a defined geographic area," which is properly
categorized as "territorial jurisdiction" rather than "subject
matter jurisdiction." 	Morrison, 239 Va. at 169, 387 S.E.2d at
755; see Thomas, 36 Va. App. at 333, 549 S.E.2d at 651 (finding
defendant's claim that his offense did not occur within the
county of the circuit court in which he was convicted, in
violation of Code § 19.2-239, "was, in the strictest sense, an
issue of territorial[, and not subject matter,] jurisdiction
. . . . "); accord Foster-Zahid v. Commonwealth, 23 Va. App.
430, 440, 477 S.E.2d 759, 764 (1996); Curtis v. Commonwealth, 13
Va. App. 622, 629, 474 S.E.2d 421, 425 (1992).
As the Supreme Court noted in Morrison, a defendant's claim
that the trial court lacked territorial jurisdiction is
generally waivable. 	See 239 Va. at 170, 387 S.E.2d at 756.
However, where the defendant claims that the evidence failed to
prove that the offense occurred in the Commonwealth, we have
found the claim is not subject to waiver. 	See Thomas, 36
Va. App. at 332-33, 549 S.E.2d at 651 (finding territorial
jurisdiction claim not waived by defendant's failure to raise it
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pre-verdict because the Commonwealth failed "to prove that
[Thomas'] offenses occurred within the Commonwealth of
Virginia"); see also Healy v. The Beer Institute, 491 U.S. 324,
336 n.13 (1989) (noting that "to assert extraterritorial
jurisdiction over persons or property would offend sister States
and exceed the inherent limits of the State's power" (internal
quotation and citation omitted)). 	In this case, it is
undisputed that Gordon's offenses occurred in Virginia. 	Gordon
claims only the trial court lacked territorial jurisdiction to
try him because the Commonwealth failed to prove that his
offense occurred within the territorial jurisdiction of the
Circuit Court of Prince William County. 	Therefore, his claim,
like that based on improper venue, is "waived unless raised in
the pleadings filed with the trial court and properly preserved
on appeal." 	Morrison, 239 Va. at 170, 387 S.E.2d at 756 (citing
Rule 5:25). 	Accordingly, we affirm his convictions.
Affirmed.
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