Nuckoles v. Com.

• Decision Date: 06 August 1991
• Docket Number: No. 0048-90-2,0048-90-2
• Citation: 407 S.E.2d 355,12 Va.App. 1083
• Parties: Jimmie Edward NUCKOLES, s/k/a James Nucklos v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 355

407 S.E.2d 355

12 Va.App. 1083

Jimmie Edward NUCKOLES, s/k/a James Nucklos v. COMMONWEALTH of Virginia.

Record No. 0048-90-2.

Court of Appeals of Virginia.

Aug. 6, 1991.

Joseph W. Kaestner (Theodore M. Galanides, Kaestner, Galanides & Spieth, on brief), Richmond, for appellant.

Michael T. Judge, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BAKER, BENTON and DUFF, JJ.

DUFF, Judge.

The sole issue before this Court is whether a trial court has the authority to impose a period of incarceration as a condition of suspending the execution of a five year penitentiary sentence. We hold that the trial court has such authority and, therefore, we affirm.

Jimmie Edward Nuckoles was convicted of taking indecent liberties with a minor. He was sentenced to five years in the penitentiary, all of which were suspended for a period of twenty years based on several conditions, one of which was that he serve twelve months in jail to be followed by supervised probation.

One month after being released from jail, the defendant was arrested again on new charges of taking indecent liberties with children. A revocation hearing was held, at which time the trial judge imposed the suspended sentence, crediting the defendant for the twelve months he served in jail.

The sentencing order in the present case read as follows:

[T]he defendant is sentenced to confinement in the penitentiary of this Commonwealth for a term of Five years with Five years suspended for a period of Twenty years on the conditions that the defendant ... serve Twelve months in the jail of this County.... The Court places the defendant on supervised probation upon his release from incarceration.

Nuckoles contends that under Code § 18.2-370 a court has the authority to sentence a person convicted of a class six felony to one of two maximum punishments: either twelve months in jail or five years in prison, but not both. He claims that our decision is controlled by Smith v. Commonwealth, 222 Va. 700, 284 S.E.2d 590 (1981). We disagree. Contrary to the present case, the defendant in Smith did not challenge the trial court's authority to impose a jail term as a condition of probation. In fact, he conceded that this sentence "was within the Court's authority under § 19.2-306." Smith, 222 Va. at 702, 284 S.E.2d at 591.

In Smith, after the defendant violated the terms of his probation, the trial court revoked its suspension of imposition of sentence and imposed a ten month jail term. However, after serving this ten month jail term, the defendant violated the conditions of probation again, for which the trial court then imposed a penitentiary sentence. The Virginia Supreme Court held that the sentencing authority vested in the trial court by Code § 19.2-306 was exhausted when the court first revoked its suspension of imposition of sentence and imposed the ten month jail term. Therefore, the court was without authority to impose any further sentence.

In the present case, however, the court imposed a five year penitentiary sentence and suspended the execution of this sentence based on several conditions, one of which was that the defendant serve a twelve month jail term. Code § 19.2-303 allows a trial judge, after conviction, to suspend a sentence in whole or in part, and in addition, to place the defendant on probation "under such conditions as the court shall determine." The statute places wide discretion in the trial court to determine what conditions are to be imposed in each particular case. The Virginia Supreme Court has noted the wide latitude the legislature has afforded trial courts in fashioning rehabilitative programs for defendants. "Inherent in the power granted under § 19.2-303 ... to suspend imposition or execution [of sentence,] is the power to place conditions on such suspension." Grant v. Commonwealth, 223 Va. 680, 685, 292 S.E.2d 348, 351 (1982).

The only limitation placed upon the discretion of the trial court in its determination of what conditions are to be imposed is that a condition be "reasonable." Dyke v. Commonwealth, 193 Va. 478, 484, 69 S.E.2d 483, 486 (1952). The concept of what constitutes reasonableness was developed in Loving v. Commonwealth, 206 Va. 924, 147 S.E.2d 78 (1966), rev'd on other grounds, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). Loving observed that a condition of suspension "must be reasonable, having due regard to the nature of the offense, the background of the offender and the surrounding circumstances." Loving, 206 Va. at 930, 147 S.E.2d at 83. We find nothing in the record which indicates that the imposition of a jail term as a condition of probation in this case was unreasonable.

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 jail condition serves a punitive function, demonstrating to offenders the seriousness of their conduct. Moreover, this condition also serves as a deterrent by giving offenders a taste of what lies ahead if they do not reform their conduct. Cohen & Gilbert, The Law of Probation and Parole, 240-41 (1983).

Other states have held that trial courts have the authority to impose a period of incarceration as a condition of probation under similar or analogous statutes. ¹ The Supreme Court of Ohio, in Tabor v. Maxwell, 175 Ohio St. 373, 376, 194 N.E.2d 856, 858 (1963), went even further in holding that where a defendant accepts the court's conditioning his probation on the condition that he serve a term in jail, he is prohibited from challenging this condition in an action "to procure his release from the penitentiary, where he was subsequently sentenced after violating his probation." Tabor, 175 Ohio St. at 376, 194 N.E.2d at 858.

The trial court, upon revocation of Nuckoles' sentence, gave him credit for the time he served in jail. Therefore, Nuckoles will, in fact, be incarcerated no more than five years. This sentence was within the trial court's authority under Code § 19.2-306.

Accordingly, the judgment appealed from is affirmed.

Affirmed.

BENTON, Judge, dissenting.

Jimmie Edward Nuckoles was convicted of taking indecent liberties with a minor in violation of Code § 18.2-370, a class six felony. The punishments for a class six felony are "a term of imprisonment of not less than one year nor more than five years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than twelve months and a fine of not more than $1,000, either or both." Code § 18.2-10(f). Although the statute authorizes a penitentiary sentence or a jail sentence, but not both, the trial judge creatively sentenced Nuckoles to both. The pertinent part of the sentencing order reads as follows:

[T]he defendant is sentenced to confinement in the penitentiary of this Commonwealth for a term of Five years with Five years suspended for a period of Twenty years on the conditions that the defendant keep the peace, be of good behavior and obey all laws, serve Twelve months in the jail of this County, submit to the Chesterfield Mental Health Clinic or any private clinic for counseling which is to be approved by the probation officer, pay Court costs of [$]95.00 and any interest that may accrue until the balance is paid in full.

The Court places the defendant on supervised probation upon his release from incarceration.

The defendant is remanded to jail. Because the statute, pursuant to which Nuckoles was convicted, authorized the trial judge to sentence Nuckoles to jail or the penitentiary, but not both, I would hold that a trial judge has neither statutory nor inherent authority to impose incarceration in jail as a condition for suspension of an imposed penitentiary sentence. Accordingly, I dissent.

"[T]he choice of sentencing procedures is a matter for legislative determination." Ballard v. Commonwealth, 228 Va. 213, 218, 321 S.E.2d 284, 287 (1984), cert. denied, 470 U.S. 1085, 105 S.Ct. 1848, 85 L.Ed.2d 146 (1985). No statute authorizes the trial judge to circumvent the punishment statute. Where the legislature has designated punishments for classes of offenses, it should appear to be obvious that "courts cannot set punishments that are inconsistent with the statutory penalties." Spencer v. Whyte, 167 W.Va. 772, 775, 280 S.E.2d 591, 593 (1981).

The trial judge's authority to suspend a sentence is statutorily derived.

After conviction, whether with or without jury, the court may suspend imposition of sentence or suspend the sentence in whole or part and in addition may place the accused on probation under such conditions as the court shall determine or may, as a condition of a suspended sentence, require the accused to make at least partial restitution to the aggrieved party or parties for damages or loss caused by the offense for which convicted, or to perform community service, or both, under terms and conditions which shall be entered in writing by the court.

Code § 19.2-303 (emphasis added). The statute does not permit the procedure employed by the trial judge, i.e., suspension of the penitentiary sentence in whole conditioned upon incarceration in jail. The trial judge's inherent power to apply the common law does not empower the trial judge to "create a common law rule where the common law principle is that the court lacks inherent jurisdiction over the subject matter of the rule." Spencer, 167 W.Va. at 775, 280 S.E.2d at 593.

If the trial judge had intended to sentence Nuckoles to five years in the penitentiary but wanted Nuckoles to be incarcerated for only a year, the trial judge had the authority under Code § 19.2-303 to suspend four years of the five year prison sentence. Because Code § 18.2-10(f) required the trial judge to opt between incarceration in the penitentiary or incarceration in jail, the trial judge could not have split the sentence and sentenced Nuckoles under the...