Epps v. Commonwealth

• Decision Date: 15 November 2011
• Docket Number: Record No. 1799–10–4.
• Parties: Brandon P. EPPS, s/k/a Brandon Patrick Epps v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

59 Va.App. 71

717 S.E.2d 151

Brandon P. EPPS, s/k/a Brandon Patrick Epps

v.COMMONWEALTH of Virginia.

Record No. 1799–10–4.

Court of Appeals of Virginia, Alexandria.

Nov. 15, 2011.

Ryan Campbell (King, Campbell & Poretz, PLLC, on briefs), for appellant.

Eugene Murphy, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on briefs), for appellee.

Present: PETTY and ALSTON, JJ., and COLEMAN, S.J.

PETTY, Judge.

Pursuant to a plea agreement with the Commonwealth,¹ appellant, Brandon P. Epps, pled guilty to possession of a controlled drug in violation of Code § 18.2–250. The trial court accepted Epps's plea and found him guilty as charged. Before sentencing, Epps filed a motion requesting the trial court to vacate its finding of guilt and continue the case generally, or alternatively, to suspend imposition of sentence pursuant to Code § 19.2–303 with an implied final disposition that would avoid a conviction. At Epps's sentencing hearing, after listening to argument by Epps's counsel, the trial court denied Epps's motion, stating that it did not have the authority to do what Epps was requesting. On appeal, Epps assigns error to the trial court's determination that it did not have the authority to vacate its finding of guilt or suspend imposition of sentence. For the reasons expressed below, we disagree with Epps's arguments and affirm the judgment of the trial court.

I. Background

On April 28, 2010, the trial court entered an order accepting Epps's guilty plea and finding Epps guilty of possessing a controlled drug in violation of Code § 18.2–250.² On July 22, 2010, Epps filed a “Memorandum in Aid of Sentencing,” in which he requested the trial court “to vacate the finding of guilt and continue the case generally ..., or in the alternative, to suspend imposition of sentence.” Between the time he pled guilty and the time of his sentencing hearing on July 23, 2010, Epps had been convicted of possession of marijuana. As Epps acknowledged, this rendered him ineligible for a deferred disposition under Code § 18.2–251.³ Nevertheless, Epps argued that “a trial court has the ability to fashion a disposition in a criminal case that offers a defendant the opportunity to avoid a conviction.” (Emphasis added.) Epps pointed to Code § 19.2–303 and case law to support his argument.

At the sentencing hearing, Epps's counsel elaborated upon his request for an ultimate acquittal if Epps complied with the court's conditions:

I think what suspended imposition means is that the Court doesn't sentence. It's perhaps set for a future review date and it imposes conditions which can include probation, can include community service, can include all the other things that go along with probation, but the intent of the Court is to allow a person, if they [sic] have complied fully with that, to walk away and rejoin society, not as a convicted felon, but as a normal, productive citizen.

(Emphasis added.) ⁴

In responding to Epps's argument, the trial court stated: “I disagree with your assessment of the law. I don't think I have the authority to do what you're asking me to do....” ⁵ Epps now appeals from this ruling of the trial court.

II. Analysis

Epps argues that the trial court's authority under Code § 19.2–303 to suspend imposition of sentence includes the authority to fashion a disposition that ultimately offers a criminal defendant the opportunity to avoid a final conviction.⁶ In other words, Epps contends that Code § 19.2–303 authorizes a trial court to vacate a previous conviction if a defendant complies with conditions that may be imposed upon him for the suspension of the imposition of his sentence. We disagree.

This Court has recently recognized that there exists no “common law power of a Virginia court to acquit a criminal defendant whose guilt has been proved beyond a reasonable doubt.” Taylor v. Commonwealth, 58 Va.App. 435, 447, 710 S.E.2d 518, 524 (2011). In Taylor, the appellant argued that “the trial court erred by not using its ‘inherent discretion and authority’ to acquit her of grand larceny and substitute in its place a lesser crime of petit larceny.” Id. at 437, 710 S.E.2d at 519. The appellant in Taylor “conceded ... there was ‘no legal basis' for [her] motion.” Id. at 438, 710 S.E.2d at 519. Accordingly, Taylor addressed the inherent discretion and authority of a trial court to acquit a defendant. Regarding the inherent authority of a trial court, Taylor held that “a Virginia court cannot refuse to convict a guilty defendant merely because it questions the category of offense assigned by the legislature, considers the range of statutory punishment too harsh, or believes certain guilty offenders undeserving of a criminal conviction.” Id. at 442, 710 S.E.2d at 521. If a trial court has no inherent authority to refuse to convict a guilty defendant based on such subjective, legally extraneous reasons, certainly a trial court cannot vacate a previously entered conviction for such reasons.

Here, however, Epps distinguishes Taylor by pointing out that he has based his argument on a specific statute and relevant case law. Essentially, Epps maintains that Code § 19.2–303 grants a trial court the authority to do what Taylor held a trial court does not have the inherent authority to do, viz., permit a guilty defendant to escape a conviction. Thus, the question before us is slightly different from that presented in Taylor. The question confronting us is whether Code § 19.2–303 authorizes a trial court to vacate a previous conviction if a defendant complies with conditions that may be imposed upon him for the suspension of the imposition of his sentence. This is a question of statutory construction.

“ ‘Statutory construction is a question of law which we review de novo on appeal.’ ” Lynchburg Div. of Soc. Servs. v. Cook, 276 Va. 465, 480, 666 S.E.2d 361, 368 (2008) (quoting Parker v. Warren, 273 Va. 20, 23, 639 S.E.2d 179, 181 (2007)). “ ‘[C]ourts apply the plain language of a statute unless the terms are ambiguous.’ ” Id. (alteration in original) (quoting Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 926 (2006)).

Code § 19.2–303 provides: “After conviction, whether with or without jury, the court may suspend imposition of sentence or suspend the sentence in whole or part and in addition may place the defendant on probation under such conditions as the court shall determine....” Code § 19.2–306(C) further provides: “If the court, after hearing, finds good cause to believe that the defendant has violated the terms of suspension, then: (i) if the court originally suspended the imposition of sentence, the court shall revoke the suspension, and the court may pronounce whatever sentence might have been originally imposed....”

This language is unambiguous. It plainly grants a trial court the discretion to suspend imposition of sentence after a defendant has been convicted of a crime and, if the defendant fails to comply with any conditions placed upon him, to impose a lawful sentence. However, the language of these statutes contains no authorization whatsoever for a trial court to vacate a prior conviction upon a defendant's compliance with conditions placed upon him for the suspension of the imposition of his sentence.

Certainly, if a trial court suspends imposition of sentence, “when the accused has complied with conditions specified, he has a right to rely upon them, and the suspension will stand. The action of the court should not, under any circumstances, be arbitrary.” Griffin v. Cunningham, 205 Va. 349, 354, 136 S.E.2d 840, 844 (1964). A defendant who complies with the conditions of a suspended imposition of sentence is entitled to avoid receiving and serving a sentence for his crime, depending on the provisions of the trial court's suspension order. Cf. Dyke v. Commonwealth, 193 Va. 478, 483, 69 S.E.2d 483, 486 (1952) (noting that where the trial court's order had suspended the execution of the defendant's sentence, had the defendant kept the condition of his suspension, the trial court “could not ... have revoked the suspension and required the defendant to serve the sentence”). Indeed, we see no reason why the general rule for suspension of execution of sentence should not apply to suspension of imposition of sentence as well:

“Where a sentence in a criminal case is suspended upon certain valid conditions expressed in the sentence imposed, the prisoner has a right to rely upon such conditions, and so long as he complies therewith the suspension should stand. In such a case he carries the keys to his freedom in his willingness to comply with the court's sentence.”

Griffin, 205 Va. at 354, 136 S.E.2d at 844 (quoting State v. Robinson, 248 N.C. 282, 103 S.E.2d 376, 378–79 (1958)).

However, this does not mean that a defendant who complies with the conditions of a suspended imposition of sentence is entitled to have his conviction vacated. Avoiding sentencing and punishment is not the same as avoiding adjudication of guilt and a record of conviction.⁷ The plain language of Code § 19.2–303 authorizes the former, but does not authorize the latter.

Our observation regarding the plain language of Code § 19.2–303 is reinforced by the fact that the legislature has already provided carefully circumscribed means to allow certain defendants charged with specific offenses to avoid conviction. See Code §§ 18.2–57.3 (domestic assault and battery), 18.2–251 (illegal drug possession), 19.2–303.2 (misdemeanor property offenses). Under these statutes, a trial court may defer disposition for defendants who meet certain criteria (e.g., not repeat offenders). If the defendants comply with the terms and conditions the trial court imposes, they will not be convicted. Had the legislature intended, in enacting Code § 19.2–303, to grant a trial court broad authority to fashion a disposition in any criminal case that offers a defendant the opportunity to avoid a final conviction, these other statutes...