Hill v. Commonwealth

• Decision Date: 18 May 2021
• Docket Number: Record No. 0562-20-4
• Citation: 73 Va.App. 206,857 S.E.2d 591
• Parties: Richard Roosevelt HILL v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

73 Va.App. 206

857 S.E.2d 591

Richard Roosevelt HILL

v.COMMONWEALTH of Virginia

Record No. 0562-20-4

Court of Appeals of Virginia.

MAY 18, 2021

Shalev Ben-Avraham, Senior Assistant Public Defender, for appellant.

Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Humphreys and AtLee

OPINION BY JUDGE ROBERT J. HUMPHREYS

On March 17, 2015, Richard Roosevelt Hill ("Hill"), after pleading guilty in the Circuit Court of Arlington County ("the circuit court") to attempted unlawful wounding in violation of Code § 18.2-51, was sentenced to three years of incarceration ("the 2015 order"). The circuit court suspended all but six months of Hill's sentence for a period of three years. It also placed Hill on supervised probation for three years, to begin upon his release from confinement. On April 18, 2018, the circuit court found Hill had violated the conditions of his probation and entered an order ("the 2018 order") requiring the balance of Hill's sentence to be executed with all but one year re-suspended and placed him on probation for two years. On February 27, 2020, the circuit court found Hill had violated his probation again and ordered that the remaining balance of his sentence be executed ("the 2020 order"). Hill argues on appeal that at the time of his second probation violation, the circuit court no longer had jurisdiction to revoke his suspended sentence and so erred by entering the 2020 order.

I. BACKGROUND

On March 17, 2015, after pleading guilty to one count of attempted unlawful wounding, Hill was sentenced to three years’ incarceration with all but six months of the sentence suspended for a period of three years. Hill was subject to supervised probation for three years upon his release from confinement.

Hill was released from the Arlington County Detention Center on March 10, 2015.¹ He went directly into federal custody upon leaving state detention. Hill left federal prison on December 4, 2016.

Hill was subsequently found to have violated the terms of his probation. After a hearing on March 16, 2018, his probation violation was disposed of on April 18, 2018, by an order that stated:

[T]he balance of the time at the time of this hearing is hereby imposed [sic] and all but one (1) year suspended. Upon release from incarceration, the [d]efendant shall be restored to probation. Supervised probation is extended for two (2) years from the date of the [d]efendant's release from confinement, on the same terms and conditions as contained in this [c]ourt's order dated March 9, [sic] 2015 ....²

(Emphasis omitted).

On February 1, 2019, Hill did not appear for a probation violation hearing. Subsequently, the circuit court issued a bench warrant for his arrest and Hill was taken into custody. Hill filed a motion to dismiss the bench warrant, asserting that he was not subject to revocation of his suspended sentence because at the time of his probation violation, the circuit court no longer had jurisdiction. Hill's motion to dismiss was denied.

On February 27, 2020, following a hearing, the circuit court found that Hill had again violated the terms of his probation. Hill appeals that judgment to this Court.

II. ANALYSIS

A. Standard of Review

Hill's assignment of error challenges the circuit court's "jurisdiction" to determine whether he violated the terms and conditions of his probation and suspended sentence, which is a question of law reviewed de novo on appeal. See Johnson v. Johnson, 72 Va. App. 771, 777, 853 S.E.2d 550 (2021) (quoting Brown v. Brown, 69 Va. App. 462, 468, 820 S.E.2d 384 (2018) ). His argument also presents a question of statutory construction which we likewise review de novo. Farrakhan v. Commonwealth, 273 Va. 177, 180, 639 S.E.2d 227 (2007) ("The construction of a statute is a question of law which we review de novo upon appeal.").

B. Hill's Argument

Hill does not contest that he violated the terms and conditions of his suspended sentence while on supervised probation, which led to the 2020 order from which he appeals.³ Hill instead argues that at the time he violated probation, the circuit court no longer had jurisdiction over his suspended sentence. He arrives at this conclusion by a creative interpretation of the 2015 order.

In pertinent part, the 2015 order suspended all but six months of the balance of Hill's sentence for a period of three years "with the following special condition(s): [t]he [d]efendant is placed on probation under the supervision of a probation officer of this [c]ourt during his uniform good behavior for three (3) years from the date of this hearing or his release from confinement, whichever occurs last ...." (Emphasis omitted). Under this order, Hill's period of probation did not begin until his release from federal prison on December 4, 2016.⁴

Hill argues that the period of suspension began immediately on the date of the sentencing order, March 17, 2015, because, unlike the period of probation, the 2015 order did not explicitly state when the period of suspension was to begin and therefore it expired three years later, on March 17, 2018.

Crucial to Hill's argument is the fact that although the 2018 order imposed some of his sentence and suspended the rest, it failed to explicitly state a period of time for which the balance of his sentence was re-suspended. However, the 2018 order did extend his probationary period by two additional years. Therefore, Hill asserts that the three-year period of suspension prescribed in the 2015 order remained in effect and had obviously expired by February 2019 when he violated his probation. Hill essentially argues that the March 2015 sentencing order set two different periods, one for probation and another different period for the suspension of his sentence, that did not run concurrently, and that the three-year period of suspension was not modified by the 2018 order.

C. The Plain Text of Code § 19.2-306

As an appellate court, we " ‘construe the law as it is written,’ and we are also mindful that ‘[t]o depart from the meaning expressed by the words is to alter the statute, to legislate and not to interpret.’ " Town of Leesburg v. Giordano, 276 Va. 318, 323, 667 S.E.2d 552 (2008) (alteration in original) (quoting Hampton Roads Sanitation Dist. Comm'n v. City of Chesapeake, 218 Va. 696, 702, 240 S.E.2d 819 (1978) ). We defer to the plain meaning of statutory language because we presume that the legislature carefully and intentionally chose their words when enacting a statute. See Jackson v. Fidelity and Deposit Co. of Md., 269 Va. 303, 313, 608 S.E.2d 901 (2005). "Where the General Assembly has expressed its intent in clear and unequivocal terms, it is not the province of the judiciary to add words to the statute or alter its plain meaning." Id.

The General Assembly has given circuit courts the very broad authority to suspend sentences, place defendants on probation subject to reasonable terms and conditions, and has expressly provided circuit courts with continuing subject matter and active jurisdiction over criminal defendants who are otherwise subject to possible imprisonment for the clearly rehabilitative purpose of encouraging them to alter their criminal behavior and providing them with an opportunity to avoid incarceration. See Code §§ 19.2-303 to -306; see also Nuckoles v. Commonwealth, 12 Va. App. 1083, 1086, 407 S.E.2d 355 (1991) ("The obvious purpose of affording trial courts discretion in matters of suspension and probation is to provide a remedial tool to use in the rehabilitation of criminals."). "A circuit court's jurisdiction to revoke a convict's probation and suspension of sentence is part of [a] purely criminal process. That jurisdiction is based on Code § 19.2-306 ...." Green v. Commonwealth, 263 Va. 191, 194, 557 S.E.2d 230 (2002).

Here, we need only interpret the circuit court's 2018 order because, under the statutory scheme regarding sentencing, probation, and revocation, the 2018 order clearly superseded the order from 2015. Code § 19.2-306(C) states:

If the court, after hearing, finds good cause to believe that the defendant has violated the terms of suspension ... if the court originally suspended the execution of the sentence, the court shall revoke the suspension and the original sentence shall be in full force and effect. The court may again suspend all or any part of this sentence and may place the defendant upon terms and conditions or probation.

Here, after a hearing, Hill was found to have violated the conditions under which his sentence was partially suspended. Interpreting Code § 19.2-306(C), we have previously held that

[T]he language of subsection (C) makes clear that revocation of a previously suspended sentence and the resuspension of some or all of that previously suspended sentence is a new ... event , restricted only by limitations that it may not extend the length of the original sentence ... and, as is the case with an original suspension, that any conditions of suspension be reasonable.

Reinke v. Commonwealth, 51 Va. App. 357, 367-68, 657 S.E.2d 805 (2008) (emphasis added).

A circuit court, in revoking a defendant's sentence and re-suspending it, has authority "pursuant to Code § 19.2-306(C) to determine anew what conditions should accompany those suspensions." See id. at 368, 657 S.E.2d 805. The circuit court unquestionably did exactly that in its 2018 order. Therefore, contrary to Hill's argument, the 2015 order no longer controlled the terms and conditions of his probation once the circuit court entered the 2018 order.

Hill's violation undisputedly occurred during the period of time he was on probation pursuant to the 2018 order. Hill nevertheless argues that the circuit court limited its own active jurisdiction to consider this violation by its failure to expressly make the period of suspension concurrent with the period of probation.

We reject Hill's novel argument. First, the various forms of...