Charles v. Commonwealth, Record No. 0616-03-1 (VA 7/20/2004)
| Decision Date | 20 July 2004 |
| Docket Number | Record No. 0616-03-1. |
| Parties | ATIF CHARLES v. COMMONWEALTH OF VIRGINIA. |
| Court | Virginia Supreme Court |
Appeal from the Circuit Court of the City of Portsmouth, Von L. Piersall, Jr., Judge.
Felipita Athanas, Appellate Defender (Public Defender Commission, on briefs), for appellant.
(Jerry W. Kilgore, Attorney General; Leah A. Darron, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.
Present: Judges Benton, Frank and Felton
Atif Charles (Charles) appeals an order of the trial court revoking his previously suspended sentence and imposing a period of incarceration which he asserts impermissibly exceeds the sentence originally imposed. Specifically, he contends that the trial court erred in not giving him credit toward his sentence for five months he spent in the Department of Corrections successfully completing the Detention Center Incarceration Program. Finding no error, we affirm the trial court.
The facts governing this appeal are not in dispute. Charles was convicted in October 1997 of possession of heroin with the intent to distribute. He was sentenced to serve five years in prison, with four years suspended. On release from incarceration after serving the active sentence of one year, Charles was placed on probation. In August 2000, the trial court found that Charles had violated the terms of his probation and revoked his four-year suspended sentence. It then resuspended that sentence on the specific condition that Charles enter and complete the Detention Center Incarceration Program. See Code § 19.2-316.2.
Charles entered the program on December 3, 2001, and successfully completed it on April 26, 2002. On his release from the program, he was placed on intensive supervised probation for six months, followed by one year of supervised probation.
On February 11, 2003, the trial court found that Charles had again violated the terms of his probation, revoked his previously suspended sentence, and sentenced him to serve the remaining four years of the sentence originally imposed.
On appeal, Charles contends for the first time that the trial court erred in failing to credit him for the time he spent in the Detention Center Incarceration Program.
The Commonwealth argues that because Charles failed to raise this specific claim at trial, he is barred by Rule 5A:18 from raising it for the first time on appeal. Rule 5A:18 provides that "[n]o ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling." Charles concedes he did not present this argument to the trial court. Accordingly, his appeal is procedurally barred by Rule 5A:18, unless he can show "good cause" for failing to raise the issue at trial, or that the "ends of justice" require our review.
Charles does not argue on appeal that there is "good cause" for his failure to raise the issue in the trial court. He argues, however, that the record shows that an "ends of justice" exception should apply to permit our review because the trial court's ruling, in effect, increased his sentence beyond the five-year penitentiary sentence originally imposed, after that sentence had become final.1 See Robertson v. Superintendent of the Wise Correctional Unit, 248 Va. 232, 236, 445 S.E.2d 116, 118 (1994) (). Because he concedes that he made no objection to the sentence imposed at trial, Charles can prevail on this appeal only if the ends of justice exception applies. If the sentence imposed by the trial court on revocation exceeds the sentence originally imposed, the excessive portion is invalid and objection can be raised at any time. Deagle v. Commonwealth, 214 Va. 304, 305, 199 S.E.2d 509, 510-11 (1973).
In order to find that a miscarriage of justice has occurred, we must conclude that the sentence imposed by the trial court was "clear error." See Tart v. Commonwealth, 17 Va. App. 384, 391, 437 S.E.2d 219, 223 (1993) ().
Stated simply, Charles contends that the trial court's sentencing order imposing a term of four years imprisonment was void because the sentence imposed was in excess of the sentence originally imposed and which had become final. He argues that the time he spent in the detention center program was a period of incarceration for which he was entitled to credit when the trial court imposed the remaining sentence of four years imprisonment. Where the sentence imposed is in excess of that prescribed by law, that part of the sentence which is excessive is invalid. Crutchfield v. Commonwealth, 187 Va. 291, 297, 46 S.E.2d 340, 343 (1948). A sentence in excess of one prescribed by law is not void ab initio because of the excess, but is good insofar as the power of the court extends, and is invalid only as to the excess. Royster v. Smith, 195 Va. 228, 236, 77 S.E.2d 855, 859 (1953).
Here, we must determine whether the time Charles spent in completing the detention center program was part of his probation imposed as a condition of his receiving a suspended sentence of imprisonment, or whether it was his serving of a portion of his sentence of imprisonment.
Code §§ 19.2-303 and 19.2-306 confer upon trial courts wide latitude and broad discretion in suspending sentences and in granting probation. See Deal v. Commonwealth, 15 Va. App. 157, 160, 421 S.E.2d 897, 899 (1992); Davis v. Commonwealth, 12 Va. App. 81, 86, 402 S.E.2d 684, 687 (1991). This Court has stated that: "`[T]he probation [and suspension] statutes are highly remedial and should be liberally construed to provide trial courts a valuable tool for rehabilitation of criminals.'" Briggs v. Commonwealth, 21 Va. App. 338, 344, 464 S.E.2d 512, 514 (1995) (quoting Grant v. Commonwealth, 223 Va. 680, 684, 292 S.E.2d 348, 350 (1982) (citations omitted)).
Code § 19.2-303 provides that "the court may . . . suspend the sentence in whole or in part and in addition may place the accused on probation under such conditions as the court shall determine." "When a defendant fails to comply with the terms and conditions of a suspended sentence, the trial court has the power to revoke the suspension of the sentence in whole or in part." Alsberry v. Commonwealth, 39 Va. App. 314, 320, 572 S.E.2d 522, 525 (2002) (citing Russnak v. Commonwealth, 10 Va. App. 317, 321, 392 S.E.2d 491, 493 (1990)); see Code § 19.2-306(C) ().
"The only limitation placed on the trial court's discretion in determining what conditions to impose [under Code § 19.2-303] is that any condition be `reasonable.'" Nuckoles v. Commonwealth, 12 Va. App. 1083, 1086, 407 S.E.2d 355, 356 (1991) (citations omitted). In Nuckoles, this Court held that a trial court has authority to impose a twelve-month period of confinement in jail as a condition of suspending execution of a sentence of imprisonment. Id. at 1084-85, 407 S.E.2d at 355.
In order to provide the courts with additional remedial sentencing measures for the rehabilitation of criminals, the General Assembly enacted various alternatives to imprisonment to further this goal, including the Boot Camp Incarceration Program, Code §§ 53.1-67.1 and 19.2-316.1, the Diversion Center Incarceration Program, Code §§ 53.1-67.7 and 19.2-316.3, and the Detention Center Incarceration Program, Code §§ 53.1-67.8 and 19.2-316.2.
Code § 19.2-316.2(A) provides that a trial court may commit certain nonviolent felons to a detention center program. The individuals committed to this program are those who otherwise would have been sentenced to imprisonment for committing a nonviolent felony (as defined in Code § 19.2-316.1), or who have been previously incarcerated for a nonviolent felony but otherwise meet criteria for eligibility.
The detention center program, which operates as part of the Department of Corrections, provides "a highly structured, short-term period of incarceration for individuals committed to the Department under the provisions of § 19.2-316.2." Code § 53.1-67.8. The detention center program "include[s] components for military-style management and supervision, physical labor in organized public works projects, counseling, remedial education, substance abuse testing and treatment, and community re-entry services." Id. Providing an alternative to active sentence of imprisonment, the program offers the trial court a means to assist a defendant who has been determined "will benefit from the program and is capable of returning to society as a productive citizen following successful completion of the program." Code § 19.2-316.2(A)(3).
Code § 19.2-316.2 is silent as to whether the trial court is required to credit the time spent in the program toward a defendant's service of a sentence of imprisonment when the previously suspended sentence is revoked. Charles contends that absent any language to the contrary in the statute, the trial court was required to give credit toward his sentence of imprisonment for the time he served in the program.
"In construing statutes, courts are charged with ascertaining and giving effect to the intent of the legislature." Crown Cent. Petroleum Corp. v. Hill, 254 Va. 88, 91, 488 S.E.2d 345, 346 (1997) (citing City of Winchester v. American...
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