Jacobs v. Commonwealth

• Decision Date: 12 March 2013
• Docket Number: Record No. 2447–11–4.
• Court: Virginia Court of Appeals
• Parties: Andrew McQuay JACOBS v. COMMONWEALTH of Virginia.

61 Va.App. 529

738 S.E.2d 519

Andrew McQuay JACOBS

v.COMMONWEALTH of Virginia.

Record No. 2447–11–4.

Court of Appeals of Virginia, Alexandria.

March 12, 2013.

From the Circuit Court of Fairfax County, Michael F. Devine, Judge. ¹

Lauren Whitley, Senior Assistant Public Defender (Office of the Public Defender, on briefs), for appellant.

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

Present: BEALES and ALSTON, JJ., and WILLIS, S.J.

BEALES, Judge.

Andrew McQuay Jacobs (appellant) appeals a revocation order entered by the Circuit Court of Fairfax County on December 5, 2011. Appellant argues on appeal that “the trial court had no authority to impose 6 months of incarceration as the court had previously imposed only ninety days of incarceration and failed to re-suspend any of that sentence as required under Code § 19.2–306.” For the following reasons, we affirm the trial court's order entered on December 5, 2011.

I. BACKGROUND

On February 22, 2006 appellant pled guilty to one count of felony attempted abduction (Count III), in violation of Code §§ 18.2–47 and 18.2–26, and one count of felony abduction (Count II), in violation of Code § 18.2–47. Appellant also entered a guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), on one count of burglary (Count I), in violation of Code § 18.2–90. On July 10, 2006 appellant was sentenced by Judge Stanley P. Klein to twenty years incarceration with eighteen years suspended for Count I, five years incarceration with three years suspended for Count II, and five years incarceration with three years suspended for Count III. The sentences were ordered to run consecutively. Appellant was placed on five years of intensive probation upon his release from incarceration.

On April 15, 2011 appellant was brought before Judge Michael F. Devine on an allegation that he violated the terms of his probation. Appellant admitted the violation, and Judge Devine revoked ninety days of appellant's previously suspended sentence on Count III. The order did not address the suspended sentences for Counts I and II. The order referred to them only in its summary of appellant's convictions and sentences. The April 20, 2011 final order reads in pertinent part:

In consideration, the Court ORDERED that ninety (90) days of the previously suspended sentence on Count III is revoked and ordered into execution. The Court further ORDERED that ANDREW MCQUAY JACOBS serve ninety (90) days, on Count III, incarceration in the Fairfax Adult Detention Center.

The Court further ORDERED that the Defendant's probation is extended to December 31, 2021.

On November 18, 2011 another probation violation hearing was held before Judge Devine, who found that appellant violated the terms of his probation again. The revocation order, upon which this appeal was brought, was issued on December 5, 2011 and reads in pertinent part:

[T]he Court revoked the entirety of the previously suspended sentence on Count I and re-suspended all but six (6) ² of that sentence for a period of five (5) years from today's date of November 18, 2011.

The Court further ORDERED that the entirety of the previously suspended sentences on Counts II and III are revoked and the Court re-suspended the entirety of the sentences imposed on Counts II and III for a period of five (5) years from today's date of November 18, 2011.

The Court further ORDERED that the Defendant is placed on intensive probation for a period of five (5) years from today's date of November 18, 2011.

II. ANALYSIS

Appellant argues on appeal that the trial court had no authority to impose six months of active incarceration in its December 5, 2011 revocation order because he claims that the trial court, in its prior April 20, 2011 revocation order, imposed only ninety days of active incarceration and did not expressly re-suspend any of that sentence (for Count III) or the remaining suspended sentences (for Counts I and II). Appellant asserts that, if the trial court intended to re-suspend any part of appellant's sentence in the April 20, 2011 revocation order, then Code § 19.2–306 required the trial court to expressly do so. Thus, appellant contends that, by the time of the November 18, 2011 revocation hearing, there was not any remaining suspended sentence available to be revoked. Consequently, appellant argues that the trial court's December 5, 2011 revocation order, which resulted from that hearing and which is the basis of this appeal, was erroneous.³

We observe, as an initial matter, that appellant claims that the trial court's April 20, 2011 revocation order affected his sentences on all three counts—even though the plain language of the April 20, 2011 order only references Count III. Counts I and II are never mentioned in the April 20, 2011 order (except in the summary of the prior history of the case). However, the Attorney General's brief on appeal to this Court also accepts the premise the April 20, 2011 order implicitly affects the sentences for Counts I and II. ⁴ Even if we were to assume without deciding that those sentences are included within the scope of that order, we conclude that the trial court did not err here.

In revocation appeals, the trial court's “findings of fact and judgment will not be reversed unless there is a clear showing of abuse of discretion.” Davis v. Commonwealth, 12 Va.App. 81, 86, 402 S.E.2d 684, 687 (1991). The evidence is considered in the light most favorable to the Commonwealth, as the prevailing party below. See, e.g., Giles v. Commonwealth, 277 Va. 369, 375, 672 S.E.2d 879, 883 (2009). To the extent that appellant's assignment of error raises a question of statutory interpretation, that question is reviewed de novo on appeal. See id. at 373, 672 S.E.2d at 882.

Revocation and Re-suspension of a Sentence under Code § 19.2–306

Code § 19.2–306(C) states, in pertinent part,

If the court, after hearing, finds good cause to believe that the defendant has violated the terms of suspension, then ... (ii) 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.

(Emphasis added).

Neither the text of Code § 19.2–306(C) nor the case law interpreting it establishes that the trial court abused its discretion here. We disagree with appellant's argument that the April 20, 2011 order's lack of an explicit re-suspension of the balance of the remaining sentence constituted reversible error.⁵ It is evident that the trial court implicitly interpreted the April 20, 2011 revocation order in its subsequent December 5, 2011 revocation order, showing that the trial court actually intended in its April 20, 2011 order to re-suspend the balance of the remaining available sentence.

We hold that the trial court's implicit interpretation of its April 20, 2011 revocation order is not an abuse of discretion, and is supported by this Court's decision in Leitao v. Commonwealth, 39 Va.App. 435, 573 S.E.2d 317 (2002), which controls the issue before us and provides a framework for our analysis of Code § 19.2–306(C). As in Leitao, the trial judge here construed its revocation order in the only manner possible—given that a trial court simply lacks any authority to “shorten the original suspended sentence.” Id. at 438, 573 S.E.2d at 319.

The Decision in Leitao

In 1996, the trial court sentenced Leitao to six years in prison, suspended all but six months of the sentence, and placed him on probation for two years. Id. at 437, 573 S.E.2d at 318. The trial court later found in 1997 that Leitao violated his probation, revoked his suspended sentence, “ordered him to serve 12 months in jail, re-suspended the balance of the sentence, and placed the defendant on probation.” Leitao was found again in 1999 to have violated probation, and the court order “revoked the sentence and probation, ordered him to serve one year of the original sentence, and placed him on probation for two years upon his release.” When Leitao was found to have violated probation in 2002, the trial court revoked his suspended sentence and probation and ordered him to serve the balance of the original sentence. Id. Specifically, the trial court stated: “When the suspension was revoked” in 1999, “the sentence would have gone into effect automatically. And then ... the Court placed him back on probation and [by implication] re-suspended the sentence.” Id. at 438, 573 S.E.2d at 318–19 (alterations in original).

Similar to appellant's argument here, Leitao argued on appeal to this Court that, because the trial court did not explicitly re-suspend the sentence after revoking the sentence in the 1999 order, there was no suspended sentence in 2002 for the trial court to suspend. Id. at 437–38, 573 S.E.2d at 318. This Court disagreed and “defer[red] to the trial court's interpretation of its own order.” Id. at 438, 573 S.E.2d at 319 (citing Fredericksburg Constr. Co. v. J.W. Wyne Excavating, 260 Va. 137, 144, 530 S.E.2d 148, 152 (2000); Rusty's Welding Serv., Inc. v. Gibson, 29 Va.App. 119, 129, 510 S.E.2d 255, 260 (1999)). This Court concluded that the trial court did not abuse its discretion in interpreting the 1999 order, reasoning that “[t]he only logical interpretation of the 1999 order is the one the trial court adopted.” Leitao, 39 Va.App. at 438, 573 S.E.2d at 319. This Court explained that

The absence of an explicit recitation re-suspending the balance of the original sentence did not implicitly discharge the remaining sentence; it implicitly re-suspended the balance that the defendant had not served.

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The 1999 order revoked the suspended sentence, and sentenced the defendant to serve one year of the original sentence. The time not served remained...