Cilwa v. Commonwealth

• Decision Date: 12 December 2019
• Docket Number: Record No. 180885
• Citation: 836 S.E.2d 378
• Parties: Dorothy Elizabeth CILWA v. COMMONWEALTH of Virginia
• Court: Virginia Supreme Court

836 S.E.2d 378

Dorothy Elizabeth CILWA

v.COMMONWEALTH of Virginia

Record No. 180885

Supreme Court of Virginia.

DECEMBER 12, 2019

Shalev Ben-Avraham, Senior Trial Attorney, for appellant.

Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

PRESENT: Lemons, C.J., Goodwyn, Mims, Powell, Kelsey, and Chafin, JJ., and Millette, S.J.

OPINION BY JUSTICE D. ARTHUR KELSEY

Dorothy Elizabeth Cilwa appeals a decision of the Court of Appeals affirming the trial court’s revocation of her suspended sentence in a criminal case. Cilwa contends that the trial court’s final revocation order relied upon an earlier order that was void ab initio. We disagree and affirm.

I.

In March 2008, Cilwa pleaded guilty to grand larceny and was sentenced to three years of incarceration with all three years suspended on the condition of good behavior for one year and successful completion of one year of supervised probation. Five days after her sentencing hearing, Cilwa committed a new criminal offense. In August 2008, the trial court found her in violation of the terms of her probation. Rather than imposing any portion of her suspended sentence, the court continued Cilwa on supervised probation for another one-year period beginning on August 14, 2008.

In June 2009, the probation officer informed the court that Cilwa had been arrested and had been charged with two new felonies, and the court issued a bench warrant for Cilwa’s arrest. Cilwa responded by executing a letter prepared by her probation officer stating that she "agree[d] to voluntarily extend [her] probation indefinitely beyond the scheduled termination date of August 14, 2009, in order to complete inpatient substance abuse treatment and to allow time for disposition of [her] pending felony charge[s]." J.A. at 20 (emphasis in original). She acknowledged that she had a right to legal counsel and to a hearing but "waived[d] these rights." Id. The court withdrew the bench warrant and held the case in abeyance.

On September 15, 2009, the Commonwealth asked the court to enter an order extending Cilwa’s probation indefinitely until "substance abuse treatment and aftercare are completed and pending charges are disposed of." Id. at 21. Consistent with the earlier agreed-upon disposition, the court entered an order stating that, as of September 16, 2009, "probation in the above case is hereby extended for Indefinitely [sic], or until further order by the Court." Id. Approximately two weeks later, Cilwa was arrested for another felony offense. The court issued a bench warrant for her arrest and scheduled a revocation hearing to address the June and September 2009 charges.

At the revocation hearing in December 2009, the court found that Cilwa had violated the terms of her supervised probation. In its corresponding January 2010 revocation order, the court recited its prior rulings, including its September 2009 order, and stated that Cilwa’s "period of supervised probation [was] extended indefinitely in order for [her] to complete residential drug treatment and aftercare and time for disposition of her pending charges." Id. at 31. The court declined to order incarceration and instead directed her to another "residential substance abuse treatment facility" and ordered that she "remain under the same terms and conditions of supervised probation." Id.

In December 2011, Cilwa overdosed on drugs and was discharged from a substance-abuse-treatment program. The court issued a bench warrant for Cilwa to secure her appearance at another revocation hearing. After multiple continuances, during which Cilwa continually improved in her addiction treatment, the case went before the court in December 2012. The court dismissed the bench warrant, and later, in February 2013, Cilwa signed a "Conditions of Probation Supervision" form noting that at her December 2012 hearing, the court had again placed her on indefinite supervised probation. Id. at 66-67. She also successfully completed a substance-abuse-treatment program in January 2013.

In March 2013, Cilwa’s probation officer advised the court that Cilwa had been arrested for a new felony offense and had continued to abuse drugs. The court took no action until after Cilwa was arrested in December 2014 for an additional felony, multiple misdemeanors, and a driving offense. On March 27, 2015, at the revocation hearing to address her charges, Cilwa argued for the first time that the September 2009 order imposing indefinite probation was void ab initio. Cilwa argued in the alternative that under general contract principles, her supervised probation had automatically ended when she had completed the substance-abuse-treatment program in 2013.

The trial court rejected both of Cilwa’s arguments. First, the court found that even if it had erred in extending Cilwa’s probation indefinitely, this error would render the September 2009 order voidable but not void ab initio. Cilwa had not appealed this order, and thus, she could not collaterally attack it years later. Second, the court was unpersuaded by Cilwa’s contract argument. The September 2009 order, the court held, had not created a "condition subsequent" triggered by Cilwa’s short-lived success in one of her several substance-abuse-treatment programs. Id. at 84. The court’s order, which reflected its intent, was plain. The order "simply extended [Cilwa’s probation] indefinitely." Id. at 85.

After the court had rejected Cilwa’s collateral challenge to the September 2009 order, Cilwa admitted the new charges against her. The court found her in violation of her probation, revoked 90 days of her 3-year suspended sentence, and terminated her supervised probation. Cilwa appealed, but the Court of Appeals held in an unpublished order that the trial court did not err because the January 2010 order had extended Cilwa’s probation indefinitely even if the September 2009 order, for whatever reason, had not. The Court of Appeals also rejected Cilwa’s contract argument that her probation had terminated automatically when she had completed a substance-abuse-treatment program in January 2013.

II.

On appeal to us, Cilwa makes two arguments. First, she argues that the September 2009 order was void ab initio because the trial court lacked subject matter jurisdiction to enter it, and consequently, the January 2010 order was void as well. Second, she argues that under contract principles, her probation had terminated automatically when she had completed her substance-abuse-treatment program in January 2013, which was long before the trial court entered its final revocation order.¹ We find no merit in either argument.

A. THE SEPTEMBER 2009 ORDER

Cilwa contends that the trial court entered the September 2009 order during a "lapsed" period of subject matter jurisdiction over probation in this case. See Appellant’s Br. at 10-11. She draws this conclusion by reasoning that Code § 19.2-304 only allows a court to extend a probation period before that period expires and that Code § 19.2-306 only allows a court to extend a probation period as a consequence of a revocation finding. Neither of these conditions, Cilwa argues, existed at the time that the court entered the September 2009 order.

1.

We begin our jurisdictional analysis where Cilwa ends hers — with the proposition that a judicial order can be deemed void ab initio, sometimes even years after it has been entered. In most instances, "whether an alleged error by a trial court renders its order void ab initio or merely voidable turns on the subtle, but crucial, distinction deeply embedded in Virginia law" between two very different but semantically similar concepts: subject matter jurisdiction and, for lack of a better expression, active jurisdiction. See Jones v. Commonwealth , 293 Va. 29, 46, 795 S.E.2d 705 (2017).

"Subject-matter jurisdiction is unique." Watson v. Commonwealth , 297 Va. 347, 352, 827 S.E.2d 782 (2019). It involves the judicial "power to adjudicate a case." Pure Presbyterian Church of Wash. v. Grace of God Presbyterian Church , 296 Va. 42, 49, 817 S.E.2d 547 (2018) (citation omitted). "Jurisdiction of the subject matter can only be acquired by virtue of the Constitution or of some statute," id. at 56, 817 S.E.2d 547 (citation omitted), and it "refers to a court’s power to adjudicate a class of cases or controversies," In re Commonwealth , 278 Va. 1, 11, 677 S.E.2d 236 (2009) (citation omitted). The parties cannot waive the absence of subject matter jurisdiction or confer it upon a court by their consent. Watson , 297 Va. at 352, 827 S.E.2d 782. If a court enters an order outside of its subject matter jurisdiction, the order can be set aside the day after its entry or a century later. In the eyes of the law, such an order is not merely an erroneous order — it is no order at all.

In contrast to subject matter jurisdiction, "active jurisdiction" — pragmatically called the "jurisdiction to err"² — involves not the power of the court but the proper exercise of its authority consistent with "settled principles of the unwritten law" or any applicable "mandate of the statute law." Farant Inv. Corp. v. Francis , 138 Va. 417, 427, 436, 122 S.E. 141 (1924) (citation omitted).

This nomenclature entered our jurisprudence a century ago through the "excellent work" of Professor Lile, id. at 427, 122 S.E. 141, and its salience has not abated in modern times, see, e.g. , Pure Presbyterian Church of Wash. , 296 Va. at 49, 56, 817 S.E.2d 547. Simply stated, active jurisdiction requires a court with subject matter jurisdiction to adjudicate a case consistent with the law governing that adjudication. As our recent cases have emphasized, "[t]his distinction guards against the improper elevation of a court’s failure ‘to comply with the requirements for exercising its authority to the same level of gravity as a lack of subject matter jurisdiction.’ " Jones , 293 Va. at 47, 795 S.E.2d 705 (quoting Nelson v. Warden , 262 Va. 276, 281, 552 S.E.2d 73 (...