Com., Dept. of Corrections, In re, 810667

• Decision Date: 11 September 1981
• Docket Number: No. 810667,810667
• Citation: 281 S.E.2d 857,222 Va. 454
• Parties: In re COMMONWEALTH of Virginia, DEPARTMENT OF CORRECTIONS, Petitioner. Record
• Court: Virginia Supreme Court

Page 857

281 S.E.2d 857

222 Va. 454

In re COMMONWEALTH of Virginia, DEPARTMENT OF CORRECTIONS, Petitioner.

Record No. 810667.

Supreme Court of Virginia.

Sept. 11, 1981.

Marshall Coleman, Atty. Gen., James E. Kulp, Deputy Atty. Gen., Jerry P. Slonaker, Asst. Atty. Gen., for petitioner.

James C. Roberts, Richmond, Edward L. Hogshire, T. Munford Boyd, Charlottesville, Anthony F. Troy, David G. Shuford, Murray J. Janus, Dennis W. Dohnal, Theodore I. Brenner, Robert G. Cabell, Jr., C. Michael DeCamps, Ralph B. Robertson, Michael Morchower, Richmond, Francis L. Buck, Charlottesville, Mays, Valentine, Davenport & Moore, Bremner, Baber & Janus, Cabell, Paris, Lowenstein & Bareford, Morchower & Associates, Richmond, Paxson, Smith, Boyd, Gilliam & Gouldman, P.C., Bailes & Buck, Ltd., Charlottesville, for respondents.

Before CARRICO, C. J., and HARRISON, COCHRAN, POFF, COMPTON, THOMPSON and STEPHENSON, JJ.

COCHRAN, Justice.

On April 28, 1981, the Department of Corrections of the Commonwealth of Virginia (the Department) filed its petition in this Court for a writ of prohibition to be directed to the Honorable J. R. Snoddy, Jr., Judge of the Circuit Court of Cumberland County, and to that court, to prohibit the judge and the court from enforcing orders heretofore entered suspending the sentences of three convicted felons, co-defendants Larry Noel Sherman, Daniel Curry Crowley and David Steeves Taylor, and from entering orders to modify, suspend or vacate the sentences of two additional co-defendants, Douglas Bogue and William Hannah Syfrett. Service of a copy of the petition was accepted by Judge Snoddy.

The petition recites in detail the proceedings in which all five co-defendants were convicted in separate trials, upon their guilty pleas, and sentenced to serve terms in the penitentiary. Sherman was convicted of feloniously aiding and abetting in the possession of marijuana with intent to distribute and was sentenced to serve ten years. Crowley was convicted of possession of marijuana with intent to distribute and possession of LSD, and sentenced to serve twenty years, with eight years suspended, and five years, respectively, the five-year sentence to run concurrently with the other. Taylor was convicted of feloniously aiding and abetting in the possession of marijuana with intent to distribute, and sentenced to serve ten years. Bogue was convicted of possession of marijuana with intent to distribute and possession of cocaine, and sentenced to serve twenty-five years, with five years suspended, and five years, respectively, the five-year sentence to run concurrently with the other. Syfrett was convicted of conspiring, confederating and combining with another or with others to possess marijuana with intent to distribute, and sentenced to serve twenty years, with five years suspended, to "run concurrently with any sentence he may receive from Henrico County".

Copies of court proceedings attached to the petition as exhibits show that each sentencing order required that "as soon as possible ... the defendant be removed and safely conveyed according to law from the jail of this Court to the said penitentiary". All the defendants, except Crowley, filed motions to set aside the verdicts and judgments and to suspend or modify all or part of the sentences. In the motions the defendants noted that they had not been removed to the penitentiary. In these cases, the trial court, within 21 days after entry of the sentencing orders, entered orders, endorsed "Seen" by the Commonwealth's Attorney, stating that the defendants had not yet been committed to the penitentiary system, that the court was not prepared to rule on the motions at that time, and that the motions were taken "under advisement". Motions filed by Crowley to set aside his two convictions did not seek suspension or modification of his sentences or state whether he had been removed to the penitentiary. Within 21 days after entry of the sentencing orders in Crowley's cases, the trial court entered orders, endorsed "Seen" by the Commonwealth's Attorney, stating that the court took under advisement the motions to set aside "and/or to suspend or modify" the verdicts and judgments. Attached to the petition is an affidavit made by a custodian of records of the Department showing that Crowley and the other defendants were received into the penitentiary system on specified dates after entry of the orders taking their respective motions under advisement.

Thereafter, in three separate orders entered on different dates, the trial court ordered that Sherman, Crowley and Taylor be released from custody, suspended the remainder of the terms of incarceration of each, and placed each on "probation for the balance of his original sentence under the auspices of the Virginia Department of Probation and Parole". When the orders of release were entered, Sherman had been in the penitentiary three and one-half months, Taylor four and one-half months and Crowley one year. Copies of the release orders show that they were endorsed by the Commonwealth's Attorney "Seen and Agreed to". No action has been taken by the court on the motions filed on behalf of Bogue and Syfrett.

The Department alleged in its petition that the trial court did not vacate or suspend the judgments of conviction prior to the expiration of 21 days or delivery of the defendants to the penitentiary, and therefore it had no jurisdiction to enter the orders suspending the sentences and compelling the release of Sherman, Crowley and Taylor and has no jurisdiction now to take any such action as to Bogue and Syfrett. In its supporting memorandum of law filed with its petition the Department relied primarily upon Rule 1:1 ¹ and Code § 53-272 ² as authority for its position.

Judge Snoddy filed his grounds of defense and supporting memorandum of law asserting that he did not exceed the jurisdiction conferred upon his court by law, and that his actions, agreed to by the Commonwealth's Attorney who represented the Commonwealth in the cases, were taken pursuant to the routine procedure in that circuit which had been accepted by the Department and sanctioned by the Attorney General. He cited two 1975 opinions of the Attorney General approving the procedure, and filed as exhibits copies of orders entered in numerous other felony cases in his judicial circuit wherein actions had been taken similar to those taken in the cases of Sherman, Crowley and Taylor.

One of the opinions of the Attorney General upon which Judge Snoddy relied was a letter dated July 30, 1975, addressed to the Honorable George F. Abbitt, Jr., then Judge of the same judicial circuit, advising that if a trial court by order entered within 21 days after a sentencing order took under advisement a motion to suspend, the defendant was not "sentenced", that he should not have been removed to the penitentiary, and, having been improperly transferred to that facility, should be released upon order of the trial court. The other opinion, dated October 8, 1975, to the same effect, was addressed to the Honorable J. Randolph Tucker, Jr., Judge of the Circuit Court of the City of Richmond. 1975 Va. Op. Att'y Gen. 93-94. In addition, Judge Snoddy argued that a writ of prohibition would be inappropriate and ineffectual as to the three individuals who had been released.

The five felons whose interests might be affected by the Department's petition filed motions for leave to intervene in this proceeding, or in the alternative, to file briefs amicus curiae, and we granted those motions by order entered May 18, 1981. First, we will consider the cases of Sherman, Crowley and Taylor, who have been released from custody.

I. Sherman, Crowley and Taylor.

Sherman filed a motion to dismiss and grounds of defense, with supporting memorandum of law, in which he stated that his counsel sought and obtained advice from the Attorney General's Office to expedite his release after entry of the order suspending the balance of his sentence; that he was released on September 17, 1980, upon authorization of the Department; that he has rejoined his wife and begun his own photographic printing and graphics business in Durham, North Carolina; and that he has complied with all the terms of his probation.

Crowley filed a motion to dismiss and grounds of defense, with supporting memorandum of law, in which he stated that he was released from custody by the Department on February 26, 1981, and that, after reporting to the Virginia Department of Probation and Parole, he had returned to Florida, his former home, where he was living "as a law-abiding citizen".

Taylor filed a motion to dismiss and grounds of defense, with supporting memorandum of law, in which he stated that his counsel sought and obtained advice from the Attorney General's Office to expedite his release after entry of the order suspending the balance of his sentence; that he was released on October 15, 1980, upon authorization of the Department; that he returned to Colorado to his former seasonal employment in a ski shop; that he was employed for the summer as an electrician in construction work; and that he has complied with all the terms of his probation.

The Department's theory, as advanced by the Attorney General, is that the cases of Sherman, Crowley and Taylor are not concluded, and that the orders suspending the balance of their sentences and placing them on probation were invalid orders, so that the Department may reacquire custody of the three as if they were escaped felons without incurring the risk of being held in contempt of the trial court. The Attorney General suggested in oral argument that the proper mandate for this Court to enter would prohibit the trial court from effectuating the release orders already entered.

We can not pass upon the validity of the orders under which Sherman, Crowley and Taylor were released from custody. The Attorney General has misconstrued the function of the writ of prohibition,...