Hernandez v. Com.

• Decision Date: 17 November 2009
• Docket Number: Record No. 1892-08-4.
• Citation: 55 Va. App. 190,684 S.E.2d 845
• Parties: Rafael HERNANDEZ v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

684 S.E.2d 845

55 Va. App. 190

Rafael HERNANDEZ v. COMMONWEALTH of Virginia.

Record No. 1892-08-4.

Court of Appeals of Virginia, Alexandria.

November 17, 2009.

Paul E. Pepper, Deputy Public Defender (Office of the Public Defender, on brief), for appellant.

Eugene Murphy, Senior Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.

Present: KELSEY, HALEY and POWELL, JJ.

JAMES W. HALEY, JR., Judge.

I. INTRODUCTION

The issue here for resolution may be stated as follows: Does a trial court have the inherent authority to dismiss criminal charges on grounds other than the legal or factual merits, when such a dismissal is not authorized by statute? We conclude a trial court does not have such inherent authority.

However, we do not address the question as to whether a court has the authority, with the agreement of the Commonwealth and the defendant, to order a dismissal or other disposition of criminal charges, when such a dismissal or other disposition is not otherwise authorized by statute.

II. BACKGROUND

The relevant facts may be succinctly stated.

Rafael Hernandez was tried by a court upon a charge of feloniously assaulting a police officer, in violation of Code § 18.2-57(C). A conviction requires the imposition of "a mandatory minimum term of confinement of six months." The statute makes no provision for any deferred finding of guilt or disposition.

At the conclusion of the evidence, counsel for Hernandez conceded that: "I know my client has done wrong." However, relying upon Moreau v. Fuller, 276 Va. 127, 661 S.E.2d 841 (2008), he maintained that the trial court had "the inherent authority ... to either defer findings or else find guilt and defer sentencing and ultimately dismiss the case." (Emphasis supplied).¹ Counsel continued: "So I ask that you suspend disposition of sentence and if he complies say with community service or whatever he has to do and if he's [sic] complied with every condition you may impose on him that you dismiss the case." (Emphasis supplied).

Significantly, the Commonwealth's attorney argued that, under the statute, the trial court did not have such inherent authority and, further, refused to agree to Hernandez's proposed deferral or disposition.

The trial court held it did not have such "inherent authority" in this case, found Hernandez guilty, and sentenced him to eleven months in jail, all suspended except the six months mandatory minimum.

III. ANALYSIS

A. Inherent Power of Courts

It is without question that courts possess the inherent power of contempt. "The power to fine and imprison for contemptis is incident to every court of record. The courts, ex necessitate rei, have the power of protecting the administration of justice ...." Wells v. Commonwealth, 62 Va. (21 Gratt.) 500, 503 (1871). That power "is inherent in all courts. ..." Carter's Case, 96 Va. 791, 808, 32 S.E. 780, 782 (1899). "Such power is inherent in the nature and constitution of a court." Holt v. Commonwealth, 205 Va. 332, 336, 136 S.E.2d 809, 813 (1964), rev'd on other grounds, 381 U.S. 131, 85 S.Ct. 1375, 14 L.Ed.2d 290 (1965). "The power of courts to punish for contempt is inherent and an important and necessary arm in the proper discharge of the functions committed to them by fundamental law." Nicholas v. Commonwealth, 186 Va. 315, 321, 42 S.E.2d 306, 309 (1947).

Nonetheless, "[it] is proper for the Legislature to regulate the exercise of the power so long as it confines itself within limits consistent with the preservation of the authority of courts to enforce such respect and obedience as is necessary to their vigor and efficiency." Carter's Case, 96 Va. at 808, 32 S.E. at 782. See Title 18.2, Chapter 10, Article 5, § 18.2-456 et seq. (containing limitations imposed by the legislature upon the inherent contempt power of a court).

The power to order restitution is another area addressed by the jurisprudence defining the inherent power of courts.

In Flemings v. Riddick's Executor, 46 Va. (5 Gratt.) 272, 280-81 (1848), the Supreme Court of Appeals affirmed a trial court's inherent power to order restitution when a: "[c]ourt whose judgment or decree is reversed ... having by its own act occasioned the wrong, possesses an inherent and summary jurisdiction to afford the redress, without reference to the peculiar nature of the controversy which it had erroneously determined."

In Reid v. Reid, 14 Va.App. 505, 511, 419 S.E.2d 398, 402 (1992) (en banc), this Court held the trial court had the authority to order restitution from a spouse who had received spousal support payments pursuant to a court order subsequently reversed on appeal. We found that authority in Code § 20-107.1² and in "[t]he legal and proper inherent power [of a court] `to repair an injury occasioned by its own wrongful adjudication.' Flemings, 46 Va. (5 Gratt.) at 281." Id.

The Virginia Supreme Court reversed in Reid v. Reid, 245 Va. 409, 429 S.E.2d 208 (1993), finding the trial court had neither statutory nor inherent power to order restitution. The Court wrote: "But more important, the inherent authority discussed in Flemings is not absolute. For example, while courts possess `an inherent power of self-defense and self-preservation' by way of contempt ... [citing Carter's Case] ..., the power may be regulated by legislative enactment provided it is not `destroyed, or so diminished as to be rendered ineffectual.'" Id. at 413-14, 429 S.E.2d at 210.

The Court further noted that Code § 20-107.1 authorized spousal support at the time of entry of a divorce decree. But "[r]estitution is the recovery of money already paid." Id. at 412, 429 S.E.2d at 209. Thus, there was no statutory authority to order restitution.

The Court continued:

Nor do we find persuasive Dr. Reid's argument that the absence of an explicit statutory prohibition against granting restitution supports the existence of implied statutory authority to order restitution. The General Assembly did not ignore the possibility of altering spousal support awards retroactively, which would effectively occur if restitution were ordered. Provision was made for retroactive treatment when "proceedings are reopened to increase, decrease or terminate maintenance and support for a spouse ..." but only "with respect to any period during which there is a pending petition for modification, but [even then] only from the date that notice of such petition has been given to the responding party." Code § 20-112. ... Indeed, the provisions contradict the existence of implied authority to grant such relief.

Id. at 412-13, 429 S.E.2d at 209-10. "[W]e think that the legislature has modified the inherent power described in Flemings." Id. at 415, 429 S.E.2d at 211.

The General Assembly, by granting authority to courts to act in designated circumstances, negates any implied or inherent authority of a court to act in similar circumstances not designated.

Legislative enactment may circumscribe the power of a court to impose punishment. As we noted in Podracky v. Commonwealth, 52 Va.App. 130, 143, 662 S.E.2d 81, 88 (2008): "Chief Justice Marshall wrote that `[t]he power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the Court, which is to define a crime and ordain its punishment.' United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95, 5 L.Ed. 37 (1820). See also Dowling v. United States, 473 U.S. 207, 213-14, 105 S.Ct. 3127, 3131-32, 87 L.Ed.2d 152 (1985)."

Subject to the restriction of the Double Jeopardy Clause of the Constitution "The legislature retains plenary discretion to `determine the appropriate "unit of prosecution"' and to punish each violation separately. Nelson v. Commonwealth, 41 Va.App. 716, 740, 589 S.E.2d 23, 35 (2003) (citation omitted), aff'd on other grounds, 268 Va. 665, 604 S.E.2d 76 (2004); see Mason v. Commonwealth, 49 Va.App. 39, 46, 636 S.E.2d 480, 483 (2006)." De'Armond v. Commonwealth, 51 Va.App. 26, 32-33, 654 S.E.2d 317, 320 (2007). A trial court has no inherent power to disregard this legislative discretion.

In Lilly v. Commonwealth, 50 Va.App. 173, 187-88, 647 S.E.2d 517, 524 (2007), this Court observed:

The legislative development of the mandatory minimum sentence ... produced a floor below which no judge or jury could go. A trial court's authority to depart downward below a mandatory minimum is "nonexistent," Mouberry v. Commonwealth, 39 Va.App. 576, 585, 575 S.E.2d 567, 571 (2003), because the legislative purpose was to divest trial judges and juries of "all discretion" to sentence below the threshold minimum, In re Commonwealth of Virginia, 229 Va. 159, 163, 326 S.E.2d 695, 697 (1985). Given this history, we find no basis for Lilly's characterization of mandatory minimum sentences as a legislative usurpation of a historically unique judicial function.

Code § 19.2-295.2 authorizes a trial court to impose a six-month to three-year period of supervision upon release from active incarceration. The trial court imposed a jury recommendation of three years incarceration for voluntary manslaughter³ plus three years of post-release supervision. Arguing a violation of the separation of powers, the defendant argued that the legislature had ceded to the judiciary a legislative function, i.e., determining the actual maximum punishment. We rejected this reasoning, holding that "the legislature, not the trial court, established the range of punishment," by its enactment of Code § 19.2-295.2. Alston v. Commonwealth, 49 Va.App. 115, 123, 637 S.E.2d 344, 348 (2006), aff'd, 274 Va. 759, 652 S.E.2d 456 (2007). See also Williams v. Commonwealth, 270 Va. 580, 621 S.E.2d 98 (2005). Thus, the power to impose the post-release period arises from the legislature, not from any inherent power of a court to punish.

B. The Holding in Moreau

We now address Moreau, 276 Va. 127, 661 S.E.2d 841.

After hearing evidence concerning a misdemeanor charge of contributing to the delinquency of a minor,...