Driscoll v. Commonwealth5/19/1992
he two convictions of driving on a suspended license. However, we have previously held that Rule 5A:18 does not require an appellee to raise an issue at trial before it may be considered on appeal where the issue is not offered to support reversal of a trial court ruling. Mason v. Commonwealth, 7 Va. App. 339, 346, 373 S.E.2d 603, 607 (1988). An appellee is subject to the limitations of Rule 5A:18 only where it asserts an error that
seeks to reverse a judgment. Richardson v. Richardson, 242 Va. 242, 247, n.3, 409 S.E.2d 148, 151, n.3 (1991); Langley v. Meredith, 237 Va. 55, 61-62, 376 S.E.2d 519, 522-23 (1989); Harbour Gate Owners' Assn., Inc. v. Berg, 232 Va. 98, 109, 348 S.E.2d 252, 259 (1986). The question we must address, therefore, is whether we may apply the right for the wrong reason rationale to affirm the judgment in this case.
An appellate court may affirm the judgment of a trial court when it has reached the right result for the wrong reason. Morrison v. Bestler, 239 Va. 166, 175 n.2, 387 S.E.2d 753, 759 n.2 (1990) (Poff, J., Dissenting). Although this rule applies in criminal cases, Frye v. Commonwealth, 231 Va. 370, 389, 345 S.E.2d 267, 281 (1986), the Commonwealth cannot use it as a subterfuge for a constitutionally prohibited cross-appeal. Hart v. Commonwealth, 221 Va. 283, 290, 269 S.E.2d 806, 810 (1980). The same principle is also applicable in civil cases. Davis v. American Interinsurance Exchange, 228 Va. 1, 5, 319 S.E.2d 723, 725 (1984) (per curiam).
The rule does not always apply. It may not be used if the correct reason for affirming the trial court was not raised in any manner at trial. Eason v. Eason, 204 Va. 347, 352, 131 S.E.2d 280, 283 (1963). In addition, the proper application of this rule does not include those cases where, because the trial court has rejected the right reason or confined its decision to a specific ground, further factual resolution is needed before the right reason may be assigned to support the trial court's decision. Sateren v. Montgomery Ward & Co., 234 Va. 303, 306, 362 S.E.2d 324, 326 (1987). For example, in this case, if Driscoll's identity as the person who was convicted for driving on two occasions on a suspended license had not been factually resolved, the rule could not be applied.
However, in this case, evidence of Driscoll's convictions of driving on a suspended license was introduced, and the Commonwealth established through examination of Driscoll, as an adverse witness, that he was the person who was convicted for these offenses. Driscoll chose to present no evidence. No disputed facts have to be resolved to accept the Commonwealth's position.
Therefore, we hold that the trial court was correct, although for
the wrong reason, in declaring Driscoll an habitual offender. The judgment is affirmed.
Affirmed.
Disposition
Affirmed.
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