Harris v. Commonwealth Of Va.

• Decision Date: 02 November 2010
• Docket Number: Record No. 2795-09-1.
• Citation: 57 Va.App. 205,700 S.E.2d 475
• Parties: Antonio Lamont HARRIS v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

57 Va.App. 205

700 S.E.2d 475

Antonio Lamont HARRIS

v.COMMONWEALTH of Virginia.

Record No. 2795-09-1.

Court of Appeals of Virginia,Chesapeake.

Nov. 2, 2010.

Kimberly Enderson Hensley, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Richard B. Smith, Special Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: ELDER and HUMPHREYS, JJ., and COLEMAN, S.J.

HUMPHREYS, Judge.

Antonio Lamont Harris (“Harris”) was convicted, pursuant to a plea of guilty, in the Circuit Court of the City of Hampton (“trial court”) of credit card theft, and a revocation hearing was held on his previous five-year suspended sentence for embezzlement. Harris was sentenced to five years in the state penitentiary with four years suspended for five years on the credit card theft. The trial court revoked Harris's five-year suspended sentence for embezzlement and re-suspended four years thereof for five years. On appeal, Harris contends that the trial court erred in holding it lacked jurisdiction to consider his motion for reconsideration of his sentences for credit card theft and, upon revocation, for embezzlement because appellant had noted appeals to the Court of Appeals of Virginia for both cases. For the following reasons, we reverse the trial court's decision and remand for further proceedings if the provisions of Code § 19.2-303 are applicable at that time.

BACKGROUND

On May 27, 2009, the trial court sentenced Harris to five years, with four years suspended for five years, for the felony credit card theft, and revoked a previously suspended five-year sentence for felony embezzlement, but re-suspended four years for five years, giving him a cumulative term of two years.

On June 10, 2009, Harris's counsel filed a notice of appeal to this Court in the embezzlement revocation case, and a notice of appeal to this Court on June 25, 2009, in the credit card theft case.

On August 18, 2009, Harris's counsel filed a motion in the trial court for reconsideration of the sentences in the trial court on the basis that Harris had qualified for an “in-house treatment program.” Harris asserted in the motion that “[t]his Honorable Court has jurisdiction over your Defendant's case, as your Defendant continues to reside in a local jail and has not been handed over to the Virginia Department of Corrections.” On September 10, 2009, the Commonwealth filed a response to Harris's motion for reconsideration of sentences, and in it confirmed that “[a]pparently thereafter [Harris] was accepted into a community based program” and that “the Commonwealth would ask for a hearing on this matter.” The Commonwealth did not challenge the assertion that Harris was, at that time, still in the local jail.

On October 6, 2009, Harris's petitions for appeal were filed in this Court in both the embezzlement and credit card theft cases.

On November 10, 2009, the Commonwealth filed a motion to dismiss for lack of jurisdiction with the trial court asserting that “[s]ince this matter is now pending before the Court of Appeals, this [c]ourt lacks jurisdiction to review the sentence which is now the subject of appellate review.” The Commonwealth's motion further erroneously asserted that “[t]he Appellant's Brief and the Commonwealth's Brief in Opposition have been filed with the Court of Appeals.” ¹

Also on November 10, 2009, Harris's counsel filed a motion in opposition to the Commonwealth's motion to dismiss for lack of jurisdiction in which he again stated that Harris “remains in a local jail.”

On December 4, 2009, the trial court held a hearing, at which Harris was present, on Harris's motion for reconsideration of his sentences. Argument was limited at the hearing to the Commonwealth's motion to dismiss Harris's motion for reconsideration for lack of jurisdiction, since Harris had appealed the final judgments in both of his cases to this Court. At the hearing on Harris's motion, the trial court agreed with the position of the Commonwealth that it lacked jurisdiction to modify the sentences “[b]ecause it's my view since the writ has been granted from the court of appeals. They have the case.... I think that, procedurally, once the court of appeals grants the writ, then they should handle it.” The trial court then dismissed Harris's motion for reconsideration based on lack of jurisdiction.

On December 30, 2009, Harris's petitions for appeal were denied by this Court, and he did not appeal the denial of his petitions to the Supreme Court of Virginia. This appeal followed.

ANALYSIS

A. Custody Status at the Time of the Hearing

Rule 1:1 of the Rules of the Supreme Court of Virginia provides that “[a]ll final judgments, orders, and decrees, irrespective of terms of court, shall remain under the control of the trial court and subject to be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer.” “ ‘Thus, once the twenty-one-day time period following the entry of a final sentencing order has run without modification, vacation, or suspension of that order, the trial court loses jurisdiction to disturb the order, unless an exception to Rule 1:1 applies.’ ” Wilson v. Commonwealth, 54 Va.App. 631, 639, 681 S.E.2d 74, 78 (2009) (quoting Patterson v. Commonwealth, 39 Va.App. 610, 614, 575 S.E.2d 583, 585 (2003)).

“An exception to [Rule 1:1] is found in Code § 19.2-303.” Russnak v. Commonwealth, 10 Va.App. 317, 325, 392 S.E.2d 491, 495 (1990). “By its explicit terms,” Code § 19.2-303 “permits a trial judge to retain jurisdiction to suspend or modify a sentence beyond the twenty-one day limit of Rule 1:1[ ] if the person sentenced for a felony has not been transferred to the Department of Corrections.” D'Alessandro v. Commonwealth, 15 Va.App. 163, 168, 423 S.E.2d 199, 202 (1992). Under Code § 19.2-303, trial courts may modify a defendant's sentence if it is “compatible with the public interest and there are circumstances in mitigation of the offense.”

Wilson, 54 Va.App. at 639-40, 681 S.E.2d at 78 (bracketed parts in original). Code § 19.2-303 provides in pertinent part:

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.

Thus, Code § 19.2-303 operates as a statutory exception to Rule 1:1, and if the requirements of Code § 19.2-303 are satisfied, the trial court retains jurisdiction to modify a sentence even after twenty-one days from entry of the final order. ²

The burden is thus on the defendant, as the moving party, to prove that the trial court had jurisdiction to hear the matter by showing either that twenty-one days had not elapsed and thus the sentencing order was not yet final, or that the defendant had not been transferred to the custody of the Department of Corrections and “it appears compatible with the public interest and there are circumstances in mitigation of the offense.” Code § 19.2-303; see Ziats v. Commonwealth, 42 Va.App. 133, 139, 590 S.E.2d 117, 120 (2003) (holding the trial court did not have jurisdiction to modify a sentencing order when faced with a record that did not show the defendant's custody status); D'Alessandro, 15 Va.App. at 168, 423 S.E.2d at 202 (declining to find the trial court had jurisdiction to modify a sentencing order under Code § 19.2-303 where the record was silent on the defendant's custodial location). ³

Whether [appellant] was in the custody of the local sheriff, and not in the custody of the DOC, when the court entered the ... order is a question of fact which we review in the light most favorable to the Commonwealth. Archer v. Commonwealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997). A trial court's factual determinations are binding on appeal

unless plainly wrong. Naulty v. Commonwealth, 2 Va.App. 523, 527, 346 S.E.2d 540, 542 (1986).

Ziats, 42 Va.App. at 139, 590 S.E.2d at 120.

Before reaching the merits of Harris's arguments, we must first address the Commonwealth's argument that the record in this case does not establish whether the trial court still had jurisdiction when it denied Harris's motion to reconsider his sentence on December 4, 2009, and thus the trial court necessarily reached the right result even if it did so for the wrong reason. Specifically, it contends that the record does not disclose whether Harris had been transferred to the Department of Corrections on December 4, 2009. We disagree.

In this case, Harris's motion to reconsider his sentence was filed on August 18, 2009, which is well after the twenty-one-day mark from the final order entered on May 27, 2009. Thus, Harris had the burden of proving that the trial court had continuing jurisdiction to modify his sentence under Code § 19.2-303-that he had not been transferred to the Department of Corrections. Harris's motion for reconsideration filed on August 18, 2009, contains the following proffer: “[t]his Honorable Court has jurisdiction over your Defendant's case, as your Defendant continues to reside in a local jail and has not been handed over to the Virginia Department of Corrections.” Further, in Harris's response to the Commonwealth's motion to dismiss for lack of jurisdiction filed on November 10, 2009, he again stated that Harris “remains in a local jail.” Lastly, the record establishes that the Commonwealth's response to the motion to reconsider does not dispute, and thus implicitly concedes, that Harris had not yet been transferred to the custody of the Department of Corrections, a fact further corroborated by Harris's presence in the courtroom on ...