Esparza v. Com.
| Decision Date | 27 April 1999 |
| Docket Number | Record No. 2602-97-1. |
| Citation | 29 Va. App. 600,513 S.E.2d 885 |
| Parties | Robert Alex ESPARZA v. COMMONWEALTH of Virginia. |
| Court | Virginia Court of Appeals |
Edward W. Webb, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Richard B. Smith, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Present: BENTON and ANNUNZIATA, JJ., and OVERTON,1 Senior Judge.
At a hearing to determine whether the suspended portion of his sentence should be revoked, Robert Alex Esparza ("appellant") moved the court to reduce his "period of active incarceration to time served." The court refused to entertain appellant's motion on its merits, stating that it had no authority to grant the motion because appellant was sentenced in accordance with an accepted plea agreement. Appellant appeals the court's refusal to hear his motion for sentence modification. For the reasons set forth below, we affirm appellant's conviction.
I.
Appellant was indicted on two counts of felony forgery and two counts of felony uttering in violation of Code § 18.2479. The appellant and the prosecution entered into a written plea agreement, which provided that, upon pleading guilty to all four charges, appellant would serve two years in prison for each forgery charge and one year for each uttering charge. The parties also agreed that five years of the six-year sentence were to be suspended on the condition that appellant be of good behavior for six years and pay court costs and restitution. On August 12, 1996, the trial court accepted the plea agreement and sentenced appellant accordingly, requiring him to report to the Virginia Beach Correctional Center on September 16, 1996 to begin serving his one year term of incarceration.
Appellant failed to report to the Correctional Center. On November 25, 1996, the circuit court ordered appellant to show cause why the suspended five years of his sentence should not be revoked. Following his arrest and the scheduling of a revocation hearing, appellant filed a "Motion for Sentence Modification," which asked the court to reduce his "period of active incarceration to time served." As grounds for this request, appellant cited: (1) his mother's health, which required him to move to California to care for and financially support her, (2) his own "serious medical conditions," and (3) his gainful employment and good behavior following his convictions in 1996.
At appellant's revocation hearing on October 21, 1997, the judge heard argument on appellant's motion. Appellant's counsel argued:
[T]he reason that [Mr. Esparza] did not show up for the jail time was because of the health of his mother.... [We are] asking the court to modify the original sentence to allow him to return to California [to help her]. In addition, he has developed extreme ill health problems related to his back.
The trial court denied the motion, stating:
I believe everything you're telling me, but this defendant did sign a plea agreement. This was not [the trial judge's] sentence, and I don't think that I can change a written plea agreement that's been put into an order. I mean—and it's too late to—he entered a plea of guilty. The plea agreement has been accepted, and he's been sentenced according to the terms of the plea agreement. I don't think that I can amend a sentence that was made pursuant to a plea agreement.
After his motion was denied, appellant addressed the revocation issue, presenting evidence concerning his mother's illness, his own medical condition, and his employment activities since 1996. Notwithstanding appellant's evidence which he advanced to explain his failure to report to the Correctional Center when ordered by the court, the judge revoked the five suspended years of appellant's sentence and re-suspended four of them, thus sentencing appellant to an additional one year term of incarceration.2
Appellant contends the circuit court erred in refusing to entertain his motion for sentence modification at his revocation hearing. We agree.
Code § 19.2-303 states:
If a person has been sentenced for a felony to the Department of Corrections but has not actually been transferred to a receiving unit of the Department, the court which heard the case, if it appears compatible with the public interest and there are circumstances in mitigation of the offense, may, at any time before the person is transferred to the Department, suspend or otherwise modify the unserved portion of such a sentence. The court may place the person on probation for such time as the court shall determine.
The issue on appeal is a matter of first impression under Virginia law. We hold that Code § 19.2-303 reflects the legislature's intent to provide for review and suspension of sentences imposed for all felony convictions provided the defendant has not been sent to the Department of Corrections.3 The provision becomes effective post-sentencing and, in the absence of limiting language, we conclude the legislature did not intend to limit the application of Code § 19.2-303 to cases of convictions obtained upon a plea of not guilty or an open plea entered without agreement.
The Commonwealth cites People v. Evans, 174 I11.2d 320, 220 Ill.Dec. 332, 673 N.E.2d 244 (1996), in support of its argument that the court is without authority to modify a sentence under Code § 19.2-303 when the sentence is imposed pursuant to a plea agreement.4 The court in Evans essentially premised its disposition on contract principles as applied to plea agreements. See id., 673 N.E.2d at 247-48. In addition, the terms of the Illinois rule construed in Evans differ from, and were adopted to serve an entirely different purpose than those contained in Code § 19.2-303.5
Even if we applied the Evans contract analysis urged by the Commonwealth, we would hold that the trial court possessed power to act under Code § 19.2-303, notwithstanding the execution of a plea agreement. A basic rule applied when construing contracts is that the law in force on the date a contract is formed determines the rights of its parties. Paul v. Paul, 214 Va. 651, 653, 203 S.E.2d 123, 125 (1974) (); Citizens Mut. Bldg. Assoc. v. Edwards, 167 Va. 399, 404, 189 S.E. 453, 455 (1937). Code § 19.2-303 was in effect when the plea agreement was executed, and when the court accepted it and imposed sentence accordingly. It follows that the code provision for modification of sentence post-conviction must be read as forming part of that agreement.
Furthermore, the purpose of the statute may be considered in determining whether a felony conviction entered pursuant to a plea agreement is embraced within its terms. See Stanley v. Tomlin, 143 Va. 187, 195, 129 S.E. 379, 382 (1925) . See also Tobacco Growers' Coop. Assn v. Danville Warehouse Co., 144 Va. 456, 465, 132 S.E. 482, 485 (1926) (). The purposes of Code § 19.2-303 are rehabilitative in nature. See Dyke v. Commonwealth, 193 Va. 478, 484, 69 S.E.2d 483, 486 (1952) (). We find nothing in the statutory scheme as articulated by the legislature to suggest that the post-sentencing rehabilitative purposes and goals of Code § 19.2-303 are inapplicable to felons convicted pursuant to a plea agreement.
The Commonwealth also argues that under Rule 3A:8(c)(3) and (4), a trial court has no authority to modify a sentence entered pursuant to a plea agreement.6 This argument essentially invokes the application of the same contract analysis, which we have determined is not conclusive in this case and which, as noted, fails to support the Commonwealth's position. The Commonwealth also invokes case law governing the postsentence withdrawal of guilty pleas, which is premised on principles likewise not applicable here. See Holler v. Commonwealth, 220 Va. 961, 265 S.E.2d 715 (1980); Lilly v. Commonwealth, 218 Va. 960, 243 S.E.2d 208 (1978).
Finally, the Commonwealth argues that modification of a sentence imposed pursuant to a plea agreement is incompatible with the public interest. We find this argument inapposite to the issue presented. Consideration of the public interest, while pertinent to the disposition of the motion to modify a sentence pursuant to Code § 19.2-303, is not determinative of the jurisdictional question raised here. The Commonwealth's argument that appellant failed to mitigate his offense as required by Code § 19.2-303 is likewise misplaced because it addresses the merits of the motion and not the jurisdictional arguments appellant presents.
In sum, we hold that Code § 19.2-303 invests courts with discretionary authority to modify a sentence post-conviction in all felony cases, including those in which the defendant has been sentenced pursuant to a plea agreement so long as the defendant is in the local jail and has not been delivered to the Department of Corrections. The trial court's determination to the contrary was, therefore, erroneous.
We find the court's error, however, to be harmless. A nonconstitutional error is harmless when "it plainly appears...
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