Askew v. Com., Record No. 1966-05-1.

• Decision Date: 12 December 2006
• Docket Number: Record No. 1966-05-1.
• Citation: 638 S.E.2d 118,49 Va. App. 127
• Court: Virginia Court of Appeals
• Parties: Earl Eugene ASKEW v. COMMONWEALTH of Virginia.

Page 118

638 S.E.2d 118

49 Va. App. 127

Earl Eugene ASKEW v. COMMONWEALTH of Virginia.

Record No. 1966-05-1.

Court of Appeals of Virginia, Chesapeake.

December 12, 2006.

Charles E. Haden, for appellant.

Robert Bryden, Assistant Attorney General (Robert F. McDonnell, Attorney General; Richard B. Smith, Senior Assistant Attorney General, on brief), for appellee.

Present: KELSEY, McCLANAHAN, JJ., and WILLIS, Senior Judge.

ELIZABETH A. McCLANAHAN, Judge.

Earl Eugene Askew appeals the trial court's denial of his motion for bail pending the appeal of his underlying conviction for possession of a firearm as a convicted felon. Askew contends the court erred in ruling it was divested of jurisdiction to consider the motion because Askew filed the motion subsequent to filing his notice of appeal on the firearm conviction. For the following reasons, we reverse the trial court and remand for its consideration of the motion for bail.

I. BACKGROUND

Upon his conviction for unlawful possession of a firearm as a convicted felon in violation of Code § 18.2-308.2, Askew was sentenced on July 27, 2005 to three years imprisonment, with one year suspended. On August 11, 2005, Askew filed a notice of appeal. On August 17, 2005, Askew filed a motion for bail pending the appeal, pursuant to Code § 19.2-319. On August 31, 2005, the trial court, citing Walton v. Commonwealth, 256 Va. 85, 501 S.E.2d 134 (1998), ruled it "was divested of jurisdiction [to act on the motion] because the notice of appeal has been filed" in this case.¹ This appeal followed.²

II. ANALYSIS

Code § 19.2-319 is the statutory basis upon which a trial court entertains a defendant's request for post-conviction bail. Commonwealth v. Smith, 230 Va. 354, 362, 337 S.E.2d 278, 282 (1985). Because this case presents "a question of law ... involv[ing] the interpretation and application" of this statute, "we review the trial court's judgment de novo." Colbert v. Commonwealth, 47 Va. App. 390, 394, 624 S.E.2d 108, 110 (2006); see Rollins v. Commonwealth, 37 Va.App. 73, 79, 554 S.E.2d 99, 102 (2001) ("[W]e review the trial court's statutory interpretations and legal conclusions de novo." (internal quotation marks and citation omitted)).

Code § 19.2-319 provides, in pertinent part:

If a person sentenced by a circuit court to death or confinement in the state correctional facility indicates an intention to apply for a writ of error, the circuit court shall postpone the execution of such sentence for such time as it may deem proper.

* * * * * *

In any case after conviction if the sentence, or the execution thereof, is suspended in accordance with this section, or for any other cause, the court, or the judge thereof, may ... set bail in such penalty and for appearance at such time as the nature of the case may require....

* * * * * *

... A writ of error from the Court of Appeals shall lie to any such judgment refusing bail or requiring excessive bail....

Askew argues that the trial court retained ancillary jurisdiction under Code § 19.2-319 to consider his motion for bail after he filed the notice of appeal on his underlying conviction and that the court misapplied Walton as authority for its ruling to the contrary. We agree.

The Commonwealth concedes the trial court's reasoning for denying Askew's motion for bail, based on Walton, was erroneous. In Walton, the Supreme Court held "the trial court was divested of jurisdiction once the defendant filed his notices of appeal." Walton, 256 Va. at 95, 501 S.E.2d at 140.³ That holding, however, as the Commonwealth points out, was limited to an issue regarding a Supreme Court appeal of a defendant's death sentences following his capital murder convictions, which was governed by Rule 5:22—unlike criminal appeals in non-death penalty cases. See Rule 5:22 (a "Special Rule Applicable to Cases in Which Sentence of Death Has Been Imposed").

The Commonwealth contends, instead, that the trial court is not completely divested of its jurisdiction in a non-death penalty case until the petition for appeal is filed,⁴ which had not occurred at the time of the trial court's ruling on the motion for post-conviction bail in the instant case. Nevertheless, as the Commonwealth further contends, pursuant to Code § 19.2-319, the trial court must suspend execution of the sentence before it can set post-conviction bail. Further, the Commonwealth asserts the trial court may not order such suspension after the sentence becomes final in twenty-one days under Rule 1:1. Absent such suspension, the court loses jurisdiction to grant post-conviction bail under Code § 19.2-319, as occurred here. Thus, the Commonwealth concludes the trial court reached the right result in this case, albeit for the wrong reason.

We agree that under the express terms of Code § 19.2-319 postponement or suspension of execution of the sentence is a pre-condition for setting post-conviction bail. However, we further conclude (i) that regardless of the finality of the sentence the trial court is required under Code § 19.2-319 to suspend execution of the sentence, upon a defendant's timely request, when made for the purpose of preparing a petition for appeal; (ii) that, as an ancillary matter, the trial court may otherwise suspend execution of the sentence at any time during the pendency of the appeal, pursuant to Code § 19.2-322.1⁵; and (iii) that, as an ancillary matter, the trial court may set bail at any time during the pendency of the appeal after it has suspended execution of the sentence.

A. Suspension of Execution of Sentence

Code § 19.2-319 provides, in paragraph one, that when a convicted defendant "indicates an intention to apply for a writ of error" the trial court "shall postpone the execution of [defendant's] sentence for such time as it may deem proper." First, under basic principles of statutory construction, this part of the statute must be read in conjunction with Code § 19.2-325 and Rule 5A:6(a), granting a defendant thirty days to file a notice of appeal with the trial court.⁶ See Colbert, 47 Va.App. at 395, 624 S.E.2d at 110 ("[S]tatutes in pari materia must be considered together in construing their various material provisions."); Austin v. Commonwealth, 42 Va.App. 33, 40, 590 S.E.2d 68, 72 (2003) ("[C]losely related statutes must be read as being consistent with one another."); Hulcher v. Commonwealth, 39 Va.App. 601, 605, 575 S.E.2d 579, 581 (2003) ("[P]roper construction seeks to harmonize the provisions of a statute ... in relation to other statutes." (internal quotation marks and citation omitted)); Cilman v. Va. State Bar, 266 Va. 66, 71, 580 S.E.2d 830, 833 (2003) ("When a statute and a rule of [the Supreme] Court address the same or a related subject matter, the proper construction ... avoids any conflict between rule and statute and permits the two to work alongside each other in ... a harmonious manner." (internal quotation marks and citation omitted)).

Guided by these principles, we hold that under Code § 19.2-319 a defendant has a co-equal period of thirty days to so indicate his "intention to apply for a writ of error," regardless of the finality of the sentence under Rule 1:1, after which execution of the sentence is subject to suspension under the statute. See Peterson v. Commonwealth, 225 Va. 289, 297, 302 S.E.2d 520, 525-26 (1983) (suspension of execution of the sentence does not affect the finality of the judgment (citing Code § 19.2-319; Hirschkop v. Commonwealth, 209 Va. 678, 166 S.E.2d 322 (1969))). This construction of Code § 19.2-319 is not in conflict with Rule 1:1, however, but rather is consistent with its express terms.⁷

Second, the Code § 19.2-319 requirement that the trial court suspend execution of a defendant's sentence is limited to a request for such suspension made specifically for the purpose of preparing defendant's petition for appeal. Ramey v. Commonwealth, 145 Va. 848, 851-52, 133 S.E. 755, 756 (1926); Strohecker v. Commonwealth, 23 Va.App. 242, 251, 475 S.E.2d 844, 849-50 (1996). In Ramey, the trial court refused to suspend execution of the defendant's sentence and "put[] it into immediate execution." Ramey, 145 Va. at 852, 133 S.E. at 756. The Supreme Court reversed the trial court, holding that the court's action "was a refusal of the right to apply for a writ of error, and was error" under the provisions of Code § 19.2-319's predecessor. Id. The Supreme Court explained, "[the trial court] need not suspend the judgment for any specific length of time, but it should, upon request, suspend it for such length of time as, under all the circumstances, will enable the accused to obtain a copy of the record and present his petition for a writ of error...." Id. at 851-52, 133 S.E. at 756.

In Strohecker, the defendant filed a motion with the trial court requesting that "execution of [his] sentence be postponed pending action by the Court of Appeals" on the appeal of his conviction. Strohecker, 23 Va. App. at 250, 475 S.E.2d at 848. The trial court denied the motion. On appeal, this Court, relying on Ramey, affirmed the trial court. We explained:

Code § 19.2-319 provides for the postponement of the execution of a sentence in order to give "a fair opportunity to apply for a writ of error." Ramey, [145 Va.] at 851, 133 S.E. at 756. Here, appellant made no assertion to the trial court that he needed additional time to prepare his petition for appeal; rather, from appellant's motion it appears that he misconstrued the statute, requesting that execution of his sentence be postponed "pending action by the Court of Appeals ...." Code § 19.2-319 provides for no such relief. We [thus] find no prejudice to appellant by the trial court's refusal to suspend execution of this sentence.

Strohecker, 23 Va.App. at 251, 475 S.E.2d at 848.

In contrast, Code § 19.2-322.1 gives the trial court the discretionary authority, as a matter of its ancillary jurisdiction, to suspend the execution of a sentence by expressly providing that...