Reinke v. Com.

• Decision Date: 11 March 2008
• Docket Number: Record No. 1034-06-1.
• Citation: 657 S.E.2d 805,51 Va. App. 357
• Parties: James Lee REINKE v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

657 S.E.2d 805

51 Va. App. 357

James Lee REINKE v. COMMONWEALTH of Virginia.

Record No. 1034-06-1.

Court of Appeals of Virginia, Chesapeake.

March 11, 2008.

Prescott L. Prince (Clarke & Prince, on brief), for appellant.

Alice T. Armstrong, Assistant Attorney General II (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: FELTON, C.J., and ELDER and KELSEY, JJ.

ELDER, Judge.

James Lee Reinke (appellant) appeals from the orders finding him in violation of the terms of his suspended sentences for four counts of taking indecent liberties with a minor and two counts of forcible sodomy. On appeal, he contends the trial court erred in concluding it lacked authority to relieve him of the condition of the suspensions requiring him to pay restitution and in "fail[ing] to find that grounds existed" to justify removing that condition. We hold the trial court properly ruled that it lacked authority to modify the original restitution requirement because it was a condition of the suspensions rather than a condition of probation. Thus, the trial court properly held appellant responsible for the arrearage accruing from his nonpayment pursuant to the terms of the original orders. Nevertheless, when the trial court revoked and resuspended the previously suspended sentences, the trial court had the discretion to determine anew what conditions should accompany those suspensions. Thus, we hold the trial court erroneously ruled it lacked authority to entertain appellant's motion to reduce or eliminate the restitution prospectively. Accordingly, we affirm in part, reverse in part and remand for additional proceedings consistent with this opinion, including the correction of a clerical error in one of the sentencing orders.¹

I. BACKGROUND

On June 9, 2003, appellant was convicted in a bench trial for four counts of indecent liberties and two counts of forcible sodomy. The victims were three of appellant's four stepdaughters, whom appellant and the girls' mother, appellant's wife, had raised.

Prior to sentencing, appellant explained to the court that his wife was having financial problems and "was about to lose the [marital residence, titled in both names,] because she couldn't make the mortgage payment without [appellant's] income." When given an opportunity to speak, appellant indicated to the court that he received a military allotment and stated as follows:

I'm concerned about my wife and kids, how they will get by if I'm not around....

[They] haven't moved back into the house yet, I'm pretty sure. I think that is a money thing, because it has got oil and hot water and propane gas for stove, and both of them are empty. She's got a broke down car that needs [to be] fixed. She doesn't make enough to do all of that. I want to be able to help her other than just a house payment.

The trial court continued the matter to obtain additional information about appellant's and his wife's financial situation, and at a subsequent hearing, the court engaged in the following colloquy with appellant:

[THE COURT:] [Appellant,] we talked the other day, and I thought you were very correct in saying that you would like to see part of your retirement pay go to keep up the house payment for your wife and your stepdaughters. Did I understand that correctly?

[APPELLANT:] Yes, sir, my wife and I had agreed on that.

Appellant indicated that after making the house payment, "there's $150 left over in his military allotment, and he wanted that for himself." The trial court responded, "You're exactly right. So it's a very unique thing, your generosity, but I want to tell you your generosity has earned you some substantial reduction in sentence that I have in mind ... [b]ut it's not going to be a free ride." The trial court imposed a total sentence of 14 years 5 months for one of the sodomy counts but suspended 6 years 5 months. It sentenced appellant to serve 14 years 5 months for the other sodomy conviction but suspended all of that time, and it sentenced him to 5 years for each of the four indecent liberties convictions but suspended all 5 years of each of those sentences, as well. Thus, appellant received a total active sentence of 8 years.

All six sentencing orders, entered October 9, 2003, contained identical language suspending some or all of appellant's sentences conditioned upon good behavior, supervised probation, payment of court costs, and the following additional condition:

[Appellant] shall, during his period of incarceration, pay an allotment of $1,150.00 per month, which shall be paid from his airforce [sic] retirement, directly to his wife, and the balance of $150.00 shall be retained by [appellant] for his personal use while in prison. The said allotment shall be paid to [appellant's] wife for house payments, maintenance of said residence and for general support of said wife and support of his [3 named] stepdaughters.... This is the total amount due in Case Nos. CR03000072-00 through CR03000077-00.

(Emphases added).

Appellant appealed his convictions to the Virginia Court of Appeals and Supreme Court without success. Appellant did not assign error to the restitution condition or the court's authority to impose it, and he made all payments due thereunder through April 2005.

In the spring of 2005, Mrs. Reinke entered into a contract to sell the marital residence. "[T]he deed was signed by power of attorney and upon [appellant's] notification that the home needed to be sold." Mrs. Reinke received $33,000 from the sale of the home. Immediately after Mrs. Reinke sold the home, appellant ceased making the monthly restitution payments of $1,150. He first told her that he stopped making the payments because "he needed the money for a lawyer, and then he told [her] that he wanted his half of the proceeds from [the sale of] the house before he would pay [her] any more."

In October 2005, the Commonwealth moved the court to issue a rule to appellant "to show cause, if any he can, why the sentences previously suspended" on his four indecent liberties and two sodomy convictions "should not be revoked, and such other punishment imposed as the Court shall deem appropriate, because [appellant] has failed to pay restitution." (Emphasis added). Before the hearing on the rule to show cause was held, appellant moved the court to reconsider his sentences, claiming the court had lacked authority to order him to pay Mrs. Reinke $1,150 per month from his allotment and, thus, that this portion of his sentences was void. The court noted that appellant "agreed to the amount and source of the restitution." It held that, "[a]ssuming for argument that the sentence imposed by the trial judge was erroneous, the judgment was voidable only, and not void. The terms of the sentence were not challenged on direct appeal and cannot now be attacked collaterally."

At a hearing on April 3, 2006, the Commonwealth presented evidence showing appellant's failure to pay Mrs. Reinke $1,150 per month as required by the sentencing orders. Appellant claimed the requirement was a term of probation and that because the order stated his probation did not commence until he was released from incarceration, a finding that he violated probation was premature. He also asked the court "to entertain a motion to reduce the support since the home has been sold."

The trial court ruled the restitution payment was "a further condition of a suspended sentence" and was "not a condition of probation." The trial court also ruled the order requiring the monthly payment was "a final order" and that it lacked the authority to modify or eliminate the required payment.

Based on its findings and the recommendation of the Commonwealth, the trial court revoked the six suspended sentences but resuspended them subject to "the same terms and conditions in the original sentencing order[s]" and the additional condition that appellant "satisfy the arrearage ... in the amount of $500.00 per month beginning 60 days after his release from incarceration until said arrearage is satisfied." The court then entered orders dated April 4, 2006, reflecting the revocation and resuspension of those sentences.²

Appellant filed a petition for appeal, contending the order requiring the payment of restitution was void and that, even if it was not void, the trial court erred in failing to find that grounds existed to reduce or terminate the payment. This Court denied the petition in part, concluding, based on Code § 19.2-303 and the decision in Hartless v. Commonwealth, 29 Va.App. 172, 510 S.E.2d 738 (1999), that the trial court had authority to fix reasonable terms and conditions for the suspension of execution of a sentence. This Court also concluded that if the trial court erred in fixing the challenged conditions, that error was voidable rather than void and, thus, not subject to collateral attack. This Court granted appellant's petition only insofar as it claimed the trial court "erred in denying appellant's motion to amend the condition of appellant's suspended sentence providing for monthly payments of support to his wife."

II. ANALYSIS

Appellant claims this Court's determination that the trial court "has the authority to fix reasonable terms and conditions for the suspension of execution of a sentence" is "clear[ly]" a "determin[ation] that the `restitution' Order is, in essence, a condition of probation" and, thus, that it is subject to be modified or amended pursuant to Code § 19.2-304 and our holding in McFarland v. Commonwealth, 39 Va.App. 511, 574 S.E.2d 311 (2002).³ We hold the evidence supports the trial court's contrary conclusion that the payment was a condition of appellant's suspended sentences rather than a condition of probation and, thus, that the trial court correctly concluded it lacked authority to modify the condition pursuant to Code § 19.2-304. Thus, the trial court properly held appellant responsible for the arrearage accruing from his nonpayment pursuant to the...