Kelley v. Stamos

• Decision Date: 10 January 2013
• Docket Number: Record No. 120579.
• Citation: 285 Va. 68,737 S.E.2d 218
• Parties: Honorable Thomas J. KELLEY, Jr., General District Court Judge for Arlington County v. Theophani K. STAMOS, Commonwealth's Attorney for Arlington County.
• Court: Virginia Supreme Court

285 Va. 68

737 S.E.2d 218

Honorable Thomas J. KELLEY, Jr., General District Court Judge for Arlington County

v.Theophani K. STAMOS, Commonwealth's Attorney for Arlington County.

Record No. 120579.

Supreme Court of Virginia.

Jan. 10, 2013.

Robert R. Musick (Thompson McMullan, Richmond, on brief), for appellant.

Pro Se.

Present: All the Justices.

Opinion by Justice DONALD W. LEMONS.

In this appeal, we consider whether the Circuit Court of Arlington County (“circuit court”) erred when it issued a writ of mandamus against the Honorable Thomas J. Kelley, Jr. (“Judge Kelley”), a general district court judge, directing Judge Kelley to sentence a criminal defendant within twenty-one days of its order on the charge of driving while intoxicated.

I. Facts and Proceedings

On May 22, 2009, Alexander Nobles (“Nobles”) pled guilty to driving while intoxicated (“DWI”) in violation of Code § 18.2–266 before Judge Kelley in general district court. The case was continued until July 7, 2009, on which date Judge Kelley continued the case until August 2, 2011, and required that Nobles be of good behavior and complete an alcohol safety action program and 200 hours of community service. At the August 2, 2011 hearing, Judge Kelley found Nobles guilty of reckless driving and fined him $250.

The record does not contain sufficient evidence for us to determine whether Judge Kelley found Nobles guilty of DWI at the May 22, 2009 hearing. On the warrant, the box located next to the disposition of “guilty as charged” is marked, but that mark is scratched through. It is not possible for the Court to determine from the record when those marks were made or whether they reflect a certain disposition by Judge Kelley that was later changed as opposed to a mistake by Judge Kelley that was rectified. The only disposition that is clearly marked indicates Nobles was tried and found by Judge Kelly to be “guilty of ___” with the charge of “reckless driving” supplied by Judge Kelley.

The Commonwealth objected to Judge Kelley's decision to find Nobles guilty of reckless driving instead of finding him guilty and sentencing him for DWI, and filed a motion to reconsider. Judge Kelley held a hearing on the motion to reconsider on August 31, 2011, but subsequently denied the motion.

Theophani K. Stamos (“Stamos”), the Chief Deputy Commonwealth's Attorney, ¹ filed a petition for a writ of mandamus in the circuit court, seeking an order compelling Judge Kelley to sentence Nobles on the charge of DWI. Judge Kelley filed a demurrer, and a hearing was held on the demurrer on December 19, 2011. On January 6, 2012, the circuit court dismissed the demurrer. On January 17, 2012, the circuit court issued a writ of mandamus, ordering Judge Kelley to sentence Nobles on the charge of DWI within twenty-one days.

Judge Kelley filed a motion for reconsideration and an answer on January 26, 2012. On February 6, 2012, the circuit court sent a letter to the parties informing them that the motion for reconsideration was denied.

Judge Kelley then filed his petition for appeal with this Court, and we granted an appeal on the following assignments of error:

1. The circuit court erred when it deprived the Hon. Thomas J. Kelley, Jr. of procedural due process by ruling on the petition without permitting him to answer the petition and without first conducting a hearing on the merits.

2. The circuit court erred by not dismissing the petition on the grounds that the Chief Deputy Commonwealth's Attorney lacked standing to file the petition for writ of mandamus.

3. The circuit court erred in granting the petition on the grounds that a writ of mandamus cannot be used to undo action that has already been taken.

4. The circuit court erred by not dismissing the petition on the grounds that the Hon. Thomas J. Kelley, Jr. lacked subject matter jurisdiction to alter the order entered on August 2, 2011 because more than twenty-one days had elapsed since entry of the order.

5. The circuit court erred in ordering the Hon. Thomas J. Kelley, Jr. to sentence Mr. Nobles for the charge of driving while intoxicated within twenty-one days of its order because the temporal requirementinfringes upon the Hon. Thomas J. Kelley's judicial discretion in imposing a sentence.

We also directed the parties to brief the following issue:

6. Whether the defendant in the underlying criminal prosecution was a necessary party to the mandamus action in the circuit court.

II. Analysis

A. Standard of Review

The issues whether 1) Stamos had standing to file the petition for a writ of mandamus, 2) the August 2, 2011 order was voidable, 3) mandamus lies and 4) Nobles was a necessary party are all questions of law subject to de novo review upon appeal. Moreau v. Fuller, 276 Va. 127, 133, 661 S.E.2d 841, 844–45 (2008).

B. Standing

Stamos filed the petition for a writ of mandamus in her individual capacity as Chief Deputy Commonwealth's Attorney. Judge Kelley argues that the right to bring a mandamus action is reserved for the Attorney General and the Commonwealth's Attorney, and there is no authority for a Chief Deputy Commonwealth's Attorney to bring a mandamus action.

The general requirements of standing have often been stated:

The purpose of requiring standing is to make certain that a party who asserts a particular position has the legal right to do so and that his rights will be affected by the disposition of the case. Thus, a party claiming standing must demonstrate a personal stake in the outcome of the controversy.

Goldman v. Landsidle, 262 Va. 364, 371, 552 S.E.2d 67, 71 (2001) (citations omitted).

In Moreau, we held that a Commonwealth's Attorney had standing to seek mandamus or prohibition in a matter involving an ongoing criminal prosecution. 276 Va. at 135, 661 S.E.2d at 845. The question presentedin this appeal is whether that authority extends to the Chief Deputy Commonwealth's Attorney.

Code § 15.2–1627(B) states:

The attorney for the Commonwealth and assistant attorney for the Commonwealth shall be a part of the department of law enforcement of the county or city in which he is elected or appointed, and shall have the duties and powers imposed upon him by general law, including the duty of prosecuting all warrants, indictments or informations charging a felony, and he may in his discretion, prosecute Class 1, 2 and 3 misdemeanors, or any other violation, the conviction of which carries a penalty of confinement in jail, or a fine of $500 or more, or both such confinement and fine. He shall enforce all forfeitures, and carry out all duties imposed upon him by § 2.2–3126. He may enforce the provisions of subsection D of § 18.2–268.3.

This statute plainly indicates that both the Commonwealth's Attorney and his assistant “shall have the duties and powers imposed upon him by general law....” It is clear from this language that in this respect the assistant attorney has the same powers and duties as the Commonwealth's Attorney. Accordingly, if the Commonwealth's Attorney had standing to file a petition for a writ of mandamus in a particular matter, than the Chief Deputy Commonwealth's Attorney would have the same standing.

Judge Kelley also argues that Stamos lacked standing to file this mandamus action because there was “no ongoing criminal prosecution.” Judge Kelley contends that the August 2, 2011 order became final after 21 days, and the petition for a writ of mandamus was not filed until September 29, 2011.

This petition for a writ of mandamus is unquestionably related to a criminal prosecution. The issue whether there is still an “ongoing criminal prosecution” will be determined by the outcome of this opinion. Under such circumstances, this petition for a writ of mandamus is so closely related to a criminal prosecution that the Commonwealth's Attorney has standing to file the petition. Accordingly, the Chief Deputy Commonwealth's Attorney had the same standing, and the circuit court did not err in failing to dismiss the petition for a writ of mandamus on that basis.

C. Mandamus and Subject Matter Jurisdiction

Stamos argues that convicting a defendant of crime he was not charged with, and that is not a lesser-included offense, exceeded the authority of the court, is void ab initio, and therefore a judicial nullity. She contends that since a valid sentencing event has yet to occur in this matter, the general district court retains subject-matter jurisdiction over this ongoing criminal proceeding, and mandamus is an appropriate remedy to compel a prospective sentencing event.

The general powers of the judiciary in Virginia are conferred by Article VI, Section 1 of the Constitution of Virginia. This section by itself confers jurisdiction upon the Supreme Court of Virginia in certain matters and further states: “Subject to the foregoing limitations, the General Assembly shall have the power to determine the original and appellate jurisdiction of the courts of the Commonwealth.” The concept of jurisdiction defines power. With regard to the Court of Appeals of Virginia, the Circuit Courts and the General District and Juvenile and Domestic Relations District Courts, the powers of such courts are entirely prescribed by statute.

An order of a court of the Commonwealth can be “void” by operation of two concepts. An order may be “void ab initio,” meaning it was without effect from the moment it came into existence. In that respect it is “void.” Such a void order is a nullity without force or effect and may be collaterally challenged. An order of a court may also be “voidable” if it contains reversible error. Singh v. Mooney, 261 Va. 48, 52, 541 S.E.2d 549, 551 (2001). However, the order is not “void” until it is directly and successfully challenged. Id. at 51, 541 S.E.2d at 551.

Of critical distinction is the difference between a court lacking jurisdiction to act upon a matter and the court, while properly having jurisdiction, nonetheless erring in its judgment. In Singh, we held that:

[a]n order is void ab...