Stokes v. Commonwealth

• Decision Date: 15 January 2013
• Docket Number: Record No. 0090–12–1.
• Parties: Kenneth A. STOKES, Jr. v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

61 Va.App. 388

736 S.E.2d 330

Kenneth A. STOKES, Jr.

v.COMMONWEALTH of Virginia.

Record No. 0090–12–1.

Court of Appeals of Virginia,

Chesapeake.

Jan. 15, 2013.

J. Barry McCracken, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: ELDER, FRANK and HUFF, JJ.

FRANK, Judge.

Kenneth A. Stokes, Jr., appellant, filed a motion to modify and reduce his previously imposed sentence. He argues the trial court erred in concluding that it had no jurisdiction to do so under Code § 19.2–303 because appellant had already been transferred to the Department of Corrections. For the reasons stated, we affirm the judgment of the trial court.

BACKGROUND

Appellant was convicted of seven felonies upon pleas of guilty. On January 21, 2011 the trial court sentenced him to serve 103 years in the state penitentiary, with sixty of those years suspended.

Appellant filed a notice of appeal with the trial court, and thereafter filed a petition for appeal with this Court. That petition was denied by per curiam order entered August 11, 2011. Appellant subsequently filed a petition for appeal with the Supreme Court of Virginia which was denied on January 10, 2012.

While the appeal was pending, appellant filed a post-trial motion with the trial court seeking a modification of his sentence pursuant to Code § 19.2–303. The court heard the motion on August 19, 2011, with appellant introducing mitigating evidence, including appellant's willingness to testify against a co-defendant. In addressing the court, the Commonwealth suggested, “perhaps elimination of the active portion of [appellant's] sentence.”

The trial court did not rule on the motion, pending resolution of the appeal. The hearing was continued to determine the status of the appeal. The trial court reaffirmed its previous order that kept appellant in the Norfolk City jail until the November 4, 2011 continuance date.¹

A written order previously entered on February 25, 2011, recognizing the need for appellant to remain incarcerated in the local jail, ordered appellant to “stay in the Norfolk City Jail until the completion of the charges against [appellant's co-defendant] and until further order of this Court.”

At the November 4, 2011 hearing, the trial court was advised appellant was not present since he had been transferred to the Department of Corrections, despite the February 25, 2011 court order.

The matter was continued to December 22, 2011, at which time appellant appeared. The trial court found it had no authority to modify appellant's sentence because appellant had been transferred to the Department of Corrections, “even though it is a mistaken transport into the Department of Corrections.” For the record, the trial court indicated appellant “would have been entitled to some relief” because of appellant's assistance to the Commonwealth in a related criminal case.

This appeal follows.

ANALYSIS

Appellant maintains on appeal that the trial court erred in finding it had no jurisdiction to modify appellant's sentence.

Rule 1:1 of the Rules of the Supreme Court of Virginia provides that a trial court may modify, vacate, or suspend all judgments, orders, and decrees within twenty-one days of the date of entry, but not longer. Expiration of the twenty-one day time limitation divests the trial court of jurisdiction. Orders entered in violation of Rule 1:1 are void.

Rule 1:1 is subject to certain limited exceptions, however. Code § 19.2–303 is one of those exceptions. It provides that “[i]f a person has been sentenced for a felony ... the court which heard the case, if it appears compatible with the public interest and there are circumstances in mitigation of the offense, may, at any time before the person is transferred to the Department [of Corrections], suspend or otherwise modify the unserved portion of such a sentence.” Code § 19.2–303. Once the defendant has been transferred to the DOC and twenty-one days have passed since the court's last order, the court can no longer modify a sentence. Rule 1:1.

Ziats v. Commonwealth, 42 Va.App. 133, 138–39, 590 S.E.2d 117, 120 (2003) (other citations omitted, emphasis and alteration in original).

It is uncontested that as of the December 22, 2011 hearing, appellant had already been transferred to the Department of Corrections. The only issue is whether the fact that appellant was transferred in violation of the court order allows the trial court to modify appellant's sentence.²

Code § 19.2–303 provides in relevant part:

If a person has been sentenced for a felony to the Department of Corrections but has not actually been transferred to a receiving unit of the Department, the court which heard the case, if it appears compatible with the public interest and there are circumstances in mitigation of the offense, may, at any time before the person is transferred to the Department, suspend or otherwise modify the unserved portion of such a sentence. The court may place the person on probation for such time as the court shall determine.

The burden is on the appellant, as the moving party, to prove that the trial court had jurisdiction to hear the matter by showing either that twenty-one days had not elapsed and thus the sentencing order was not yet final, or that the defendant had not been transferred to the custody of the Department of Corrections and “it appears compatible with the public interest and there are circumstances in mitigation of the offense.” Harris v. Commonwealth, 57 Va.App. 205, 212, 700 S.E.2d 475, 478 (2010).

We recognize that the purposes of Code § 19.2–303 are rehabilitative in nature, Esparza v. Commonwealth, 29 Va.App. 600, 607, 513 S.E.2d 885, 888 (1999), and the statute should be liberally construed. See Wright v. Commonwealth, 32 Va.App. 148, 151, 526 S.E.2d 784, 786 (2000) (stating that statutes should be liberally construed in keeping with their rehabilitative purpose); see also Dyke v. Commonwealth, 193 Va. 478, 484, 69 S.E.2d 483, 486 (1952) (noting that courts should liberally construe Code § 53–272, Code § 19.2–303's predecessor, in order to “afford to trial courts a valuable means of bringing about the rehabilitation of offenders against the criminal laws”).

“This does not mean, however, that [appellant] is entitled to an interpretation of Code § 19.2–303 that is inconsistent with the statute's plain language.” Patterson v. Commonwealth, 39 Va.App. 610, 616, 575 S.E.2d 583, 586 (2003); see also Cartwright v. Commonwealth, 223 Va. 368, 372, 288 S.E.2d 491, 493 (1982) (noting that a statute may be interpreted in accord with its purpose only to the extent that such purpose “ ‘may be accomplished without doing harm to [the statute's] language’ ” (quoting Gough v. Shaner, Adm'r, 197 Va. 572, 575, 90 S.E.2d 171, 174 (1955))). “The manifest intention of the legislature, clearly disclosed by its language, must be applied.” Anderson v. Commonwealth, 182 Va. 560, 566, 29 S.E.2d 838, 841 (1944).

The legislature's intent expressed in Code § 19.2–303 is clear and needs no interpretation. When read in conjunction with Rule 1:1, Code § 19.2–303 establishes an absolute event, i.e., a transfer to the Department of Corrections, when a trial court can no longer modify a sentence. See In re Dep't of Corr., 222 Va. 454, 463, 281 S.E.2d 857, 862 (1981).

Citing E.C. v. Va. Dep't of Juvenile Justice, 283 Va. 522, 527, 722 S.E.2d 827, 829–30 (2012), appellant argues that once a trial court obtains jurisdiction, it maintains jurisdiction to resolve all matters before it. While appellant correctly states the E.C. ruling, the cited statement must be read in context. The issue in E.C. was whether the circuit court had jurisdiction to consider E.C's. habeas corpus petition since E.C. had already been released from custody. The Supreme Court held that the circuit court had jurisdiction when the petition was filed, specifically, when E.C. was still in custody. Id. at 529, 722 S.E.2d at 830. Jurisdiction did not end when E.C. was released from custody. The Supreme Court concluded, “ ‘[I]t is axiomatic that when a court acquires jurisdiction of the subject matter and the person, it retains jurisdiction until the matter before it has been fully adjudicated.’ ” Id. at 528, 722 S.E.2d at 829 (quoting Laing v. Commonwealth, 205 Va. 511, 514, 137 S.E.2d 896, 899 (1964)).

Thus, appellant argues that at the first hearing on August 19, 2011, when appellant remained in the local jail, jurisdiction attached and appellant's subsequent transfer did not divest the court of jurisdiction to modify his sentence.

This argument ignores the plain language of Code § 19.2–303. “A primary rule of statutory construction is that courts must look first to the language of the statute. If a statute is clear and unambiguous, a court will give the statute its plain meaning.” Loudoun County Dep't of Social Servs. v. Etzold, 245 Va. 80, 85, 425 S.E.2d 800, 802 (1993). Code § 19.2–303 clearly allows the court to modify an unserved portion of a sentence “any time before a person is transferred” to the Department of Corrections. Thus, the operative date in question is when the court makes its ruling, not when the motion is filed, and not when the matter initially comes before the court.

While of no precedential value, our decision in Coe v. Commonwealth, 2004 WL 384162, 2004 Va.App. LEXIS 181 (Va.Ct.App. Mar. 2, 2004), supports our analysis in the instant case.³

In Coe, the trial court found it had no jurisdiction to modify appellant's sentence. Like the subject case, the trial court ordered that Coe not be transferred to the Department of Corrections pending a hearing on the motion to modify. After the motion had been filed on September 16, 2002, Coe was transferred to Department of Corrections on September 24, 2002, one day prior to the hearing. We read Code § 19.2–303 literally and concluded:

Most...