Rease v. Com.

• Decision Date: 27 April 1984
• Docket Number: No. 830182,830182
• Citation: 316 S.E.2d 148,227 Va. 289
• Parties: Rudolph V. REASE v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 148

316 S.E.2d 148

227 Va. 289

Rudolph V. REASE v.COMMONWEALTH of Virginia.

Record No. 830182.

Supreme Court of Virginia.

April 27, 1984.

David J. Fudala, Alexandria (Hirschkop & Grad, P.C., Alexandria, on brief), for appellant.

Linwood T. Wells, Jr., Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

Present: COCHRAN, POFF, COMPTON, STEPHENSON, RUSSELL and THOMAS, JJ., and GORDON, Retired Justice.

COMPTON, Justice.

In this criminal appeal, the question is whether the state court lost jurisdiction to revoke a suspended sentence because of a lapse of time caused by defendant's federal imprisonment for a crime committed while on state probation.

As pertinent here, Code§ 19.2-306 provides:

"The court may, for any cause deemed by it sufficient which occurred at any time within the probation period, or if none, within the period of suspension fixed by the court ... revoke the suspension of sentence and any probation, if the defendant be on probation, and cause the defendant to be arrested and brought before the court at any time within one year after the probation period ....In the event that any person placed on probation shall leave the jurisdiction of the court without the consent of the judge, or having obtained leave to remove to another locality violates any of the terms of his probation, he may be apprehended and returned to the court and dealt with as provided above."

AppellantRudolph V. Rease pleaded guilty to a charge of robbery and was sentenced by the trial court in November of 1972 to:

"[S]erve ten (10) years in the Penitentiary House of this Commonwealth, at hard labor, but in mitigation of punishment, it appearing compatible with the public interest so to do, the Court does now suspend seven (7) years of the said sentence, conditioned upon the defendant's good behavior and that he shall be on active probation ... for a period of five years upon his release from confinement."

Defendant was released from confinement on July 22, 1974.

During the term of probation, defendant was arrested by federal authorities on October 20, 1976, and charged with a bank robbery that occurred on that date.He was detained in federal custody in the Arlington County jail pending trial and sentencing.Upon being notified of defendant's federal arraignment, the court below issued a warrant in November requiring defendant to show cause why his suspended sentence and probation should not be revoked.This bench warrant was not served on defendant at that time.

In December, defendant was found guilty of the federal charge and sentenced in January of 1977 to serve 18 years in a federal penitentiary.On January 13, defendant's Virginia probation officer advised the state trial judge of the sentencing and that defendant was still incarcerated in the nearby Arlington jail.The Commonwealth at that time did not attempt to arrange a hearing on the probation violation.

On January 17, defendant was moved to a federal penitentiary.In March, a Virginia detainer based on the bench warrant was filed against defendant with the Federal Bureau of Prisons.The defendant remained in federal penal institutions in Pennsylvania, Georgia, Illinois, and Indiana until released on parole on October 19, 1982.During this period of incarceration, defendant made requests that the detainer be released or that Virginia afford him a hearing on the revocation of his probation.The trial court denied the release request and Virginia authorities notified him that he would not be returned to the Commonwealth for a revocation hearing until released from federal custody.

On the day of defendant's federal discharge, the bench warrant was served and defendant was brought to Virginia.A revocation hearing was held on November 5, 1982.Defendant asserted that the trial court lacked jurisdiction to revoke the probation because the time fixed by Code§ 19.2-306 within which the court could act had expired.The trial court ruled that when defendant came under federal control there was a "tolling effect" on the time constraint of the Virginia statute.Thus, the court exercised jurisdiction, found that defendant had violated probation, and ordered execution of the suspended seven-year penitentiary sentence.Defendant appeals from that order.

On appeal, defendant focuses on the statute in question.He concedes that a crime was committed during the probation period.He agrees that during the probation period of July 22, 1974 to July 22, 1979, and within one year thereafter, the trial court had absolute discretion to revoke the probation and suspended sentence.He contends, however, that the court's power to revoke could not extend beyond July 22, 1980 and that when defendant was brought before the court on November 5, 1982, the court acted without jurisdiction in ordering execution of the suspended sentence.

Defendant further argues that because federal law expressly provides for delivery of a federal prisoner to state custody by use of a writ of habeas corpus ad prosequendum, see28 U.S.C. § 2241(c)(5)(1982);28 C.F.R. §§ 527.30-.31(1983), the State of Virginia readily could have brought him back to Fairfax for a probation revocation hearing during his period of federal incarceration.He says he"did not abscond or try in any way to avoid the charge which had been placed against him; indeed, he wrote numerous letters requesting a disposition of the charge."Defendant also argues that the Commonwealth's "conduct in this case ignores the serious harm to [him] ... brought about by such a lengthy delay in conducting the revocation proceedings."He says the fact that a detainer is outstanding for an inmate "directly affects the conditions of his confinement, including security classification, parole release date, and eligibility to participate in work release programs and other programs."More importantly, he urges that delaying revocation proceedings until the term of federal incarceration expires deprives defendant of any opportunity for concurrent sentencing under the Virginia statute which authorizes such procedure when a defendant is in a federal prison at the time of state sentencing.SeeCode§ 19.2-308.1.He contends that such a delay thus can lengthen unjustly the term of incarceration.

Conceding the time constraints of § 19.2-306 are jurisdictional, the Attorney General contends the defendant's probation was revoked within the time prescribed by law.He argues that the statute, while limiting the time within which revocation of a suspended sentence or probation may take place, provides two "exceptions" to such limit.The Attorney General urges that these "exceptions" consist of cases in which a person, who has been placed on probation, leaves "the jurisdiction of the court without the consent of the judge," or obtains "leave to remove to another locality" and then "violates any of the terms of his probation."In those cases, the argument continues, the statute provides merely that such persons "may be apprehended and returned to the court and dealt with as provided above."The Attorney General says that the "clear intent" of the General Assembly, in referring specifically to those situations, was to take them outside the time limits otherwise prescribed for revocation hearings.He says, citing foreign authority, that it is not unusual for the legislature to place an exception into a statute of limitations for persons who become residents of another state or otherwise remain outside the state.Here, the Attorney General argues, "it is clear"the defendant left the jurisdiction without obtaining the consent of the judge.

We do not agree with this interpretation, given the facts of this case.We are of opinion that the language "shall leave the jurisdiction of the court without the consent of the judge" manifestly applies primarily to a fugitive or to one who absconds.It does not apply to a person who, as here, departs the Commonwealth because he is in the custody of federal authorities.

Alternatively, the Attorney General argues that if we do not find the so-called statutory "exception" applies to the defendant, we should nevertheless determine that the trial court had jurisdiction to revoke the probation.He contends that a proper construction of the statute excludes from its provisions cases where a probationer commits a crime leading to his incarceration outside the Commonwealth and the state court promptly has issued a bench warrant followed by a detainer.^*

We agree with the alternative position of the Attorney General.The probation statutes are highly remedial and should be construed liberally.Richardson v. Commonwealth, 131 Va....