Holland v. Commonwealth

• Decision Date: 22 October 2013
• Docket Number: Record No. 0965–12–3.
• Citation: 62 Va.App. 445,749 S.E.2d 206
• Court: Virginia Court of Appeals
• Parties: Dennis HOLLAND v. COMMONWEALTH of Virginia.

62 Va.App. 445

749 S.E.2d 206

Dennis HOLLAND

v.COMMONWEALTH of Virginia.

Record No. 0965–12–3.

Court of Appeals of Virginia, Salem.

Oct. 22, 2013.

From the Circuit Court of Henry County, Martin F. Clark, Jr., Judge.¹

Perry H. Harrold for appellant.

Katherine Quinlan Adelfio, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: Judges HUMPHREYS, BEALES and Senior Judge ANNUNZIATA.

ROBERT J. HUMPHREYS, Judge.

Dennis Holland (“Holland”) appeals the final order of Henry County Circuit Court (“circuit court”) ending the suspension on the execution of his sentence. Holland argues (1) that the circuit court erred because it no longer had jurisdiction over the case when it ended the suspension of his sentence, and (2) that the circuit court erred in failing to grant his motion for suspension or modification of his remaining one-and-a-half-year sentence pursuant to Code § 19.2–303. For the following reasons, we conclude that the jurisdiction of the circuit court was terminated, and its previous order suspending execution of Holland's sentence voided by operation of law, upon Holland's transfer to the custody of the Virginia Department of Corrections (DOC).

I. BACKGROUND

On appeal, we “ ‘consider the evidence and all reasonable inferences fairly deducible therefrom in the light most favorable to the Commonwealth, the prevailing party at trial.’ ” Crawford v. Commonwealth, 281 Va. 84, 97, 704 S.E.2d 107, 115 (2011) (quoting Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924 (2000)).

In 1990, the circuit court convicted Holland of receiving stolen goods and sentenced him to seven years in the penitentiary. Holland did not immediately serve this sentence because he was serving time in federal custody. In 1999, Holland petitioned the circuit court for a reduction of his sentence and the court amended his sentence to seven years in the Virginia DOC with six years and six months suspended. While Holland was still serving his federal sentence, he violated the terms of his probation, and on May 9, 2006, the circuit court revoked the suspension of six years and six months of his sentence and sentenced him to serve one year and six months of the sentence, with the remaining five years to run concurrently with the federal prison sentence he was serving at the time.

On November 2, 2011, the day before his release from federal prison and transfer to the Virginia DOC, Holland petitioned the circuit court with a motion to suspend or modify his remaining active state sentence of one year and six months pursuant to Code § 19.2–303. On November 2, without holding an evidentiary hearing, Judge David Williams entered an order that stated, “After review of the evidence and consideration of the Motion by the court, it is ORDERED that said Motion for Suspension or Modification of Sentence Pursuant to Section 19.2–303 ... is hereby granted; execution of sentence suspended pending full hearing on the issue.” On November 3, 2011, Holland was released from federal custody and transferred to the DOC.

On November 17, 2011, Holland was transported to the circuit court for a hearing pursuant to the November 2 order. Judge Martin Clark, Jr. presided over the hearing, and Holland presented evidence to support his motion. However, Holland argued that the November 2 order suspended his sentence and on November 3 the circuit court lost jurisdiction over the matter pursuant to Code § 19.2–303 because Holland was transferred to the DOC; thus, Holland argued, the November 2 order indefinitely suspended his sentence. Judge Clark determined that the circuit court had jurisdiction to hear the case on November 17 because it acquired jurisdiction before Holland was transferred to the custody of the DOC and the circuit court retained jurisdiction to hear the case despite the fact that Holland was then in the custody of the DOC.

The circuit court orally announced its decision at the conclusion of the November 17 hearing; it decided to vacate the suspension on Holland's one-year-and-six-month sentence and make the sentence active. However, the circuit court did not enter an order after the November 17 hearing.² On December 21, 2011, Holland filed a motion to reconsider the circuit court's decision announced from the bench on November 17. The court heard the parties on the motion on May 1, 2012, and it did not change its ruling. The circuit court's order entered on May 24, 2012, but dated nunc pro tunc May 1, 2012, stated that,

the Order of this Court signed on November 2, 2011 assumed jurisdiction of this case until its ultimate conclusion and allowed the Court to retain such jurisdiction until the final resolution of this matter by the Court, notwithstanding the defendant's transfer to the Virginia Department of Corrections; and, in addition, this hearing came less than twenty-one days after the said prior order, bringing this within the time limits of Rule 1:1 of the Rules of Court;....The circuit court declined to suspend or modify Holland's remaining one-year-and-six-month sentence. The court ordered “that the suspension of execution of the sentence ordered on November 2, 2011 is hereby ended and lifted as of November 3, 2011.” The circuit court remanded Holland to the custody of the DOC to serve his term of incarceration.

II. ANALYSIS

Holland first asserts that the circuit court “committed reversible error in reversing the [circuit court's] ruling of November 2, 2011 which granted [Holland's] motion to modify, reduce or suspend his sentence on the 17th day of November 2011 because as of the aforesaid date the [circuit court] no longer had jurisdiction in this cause of action.”

Both parties agree that the circuit court was without jurisdiction to modify Holland's sentence pursuant to Code § 19.2–303 once he was transferred to the DOC on November 3, 2011. Therefore, Holland argues, the November 2 order is effective and it suspends the execution of his sentence even though the circuit court could not go forward with a full hearing as contemplated in the order. This assignment of error raises issues of the circuit court's jurisdiction and statutory interpretation, therefore we review the judgment of the circuit court de novo. Williams v. Williams, 61 Va.App. 170, 180, 734 S.E.2d 186, 190 (2012).

A. The May 1, 2012 order is void

Rule 1:1 states that, “All 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.” ³ “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.” Patterson v. Commonwealth, 39 Va.App. 610, 614, 575 S.E.2d 583, 585 (2003). “ ‘ Code § 19.2–303 is one of those exceptions.’ ” Neely v. Commonwealth, 44 Va.App. 239, 241, 604 S.E.2d 733, 734 (2004) (en banc) (quoting Ziats v. Commonwealth, 42 Va.App. 133, 138, 590 S.E.2d 117, 120 (2003)). Code § 19.2–303 states 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, the circuit court retains jurisdiction to consider modification of a sentence under Code § 19.2–303 “so long as [the defendant has] not been transferred to the Department of Corrections at the time of the hearing.” Harris v. Commonwealth, 57 Va.App. 205, 216, 700 S.E.2d 475, 480 (2010).

In Stokes v. Commonwealth, 61 Va.App. 388, 736 S.E.2d 330 (2013), the circuit court ordered that the appellant remain incarcerated in the local jail until further order of the court so that the court could address his motion seeking modification of his sentence pursuant to Code § 19.2–303 after a related appeal in the case was resolved. Id. at 391, 736 S.E.2d at 332. Despite the circuit court's order, the appellant was mistakenly transported to the DOC. Id. This Court affirmed the circuit court's ruling that it had no jurisdiction to modify the appellant's sentence. “When read in conjunction with Rule 1:1, Code § 19.2–303 establishes an absolute event, i.e., a transfer to the Department of Corrections, when a trial court can no longer modify a sentence.” Id. at 394, 736 S.E.2d at 333. In writing Code § 19.2–303, the legislature “clearly limits the authority of the trial court to [modify a sentence]. The statute contains no exceptions.” Id. at 398, 736 S.E.2d at 335 (suggesting, for example, that the legislature could have chosen to add a “manifest injustice” exception or added “lawfully” as a modifier of “transferred,” but it did not do so). “[T]he operative date in question is when the court makes its ruling, not when the motion is filed, and not when the matter initially comes before the court.” Id. at 395, 736 S.E.2d at 334.

The Virginia Supreme Court has concluded that when reading Rule 1:1 with Code § 53–272 (the predecessor to Code § 19.2–303), “ ‘after the expiration of 21 days from the sentencing order if the prisoner has been committed and delivered to the penitentiary and no order had been entered within 21 days after final judgment suspending the sentence, the trial court has no further authority to suspend the sentence.’ ” Virginia Dept. of Corrections v. Crowley, 227 Va. 254, 259, 316 S.E.2d 439, 441 (1984) (quoting In Re: Dept. of Corrections, 222 Va. 454, 463, 281 S.E.2d 857, 862 (1981)). Thus, the circuit court in ...